author: PIERCE, Justice, for the Court: LAMAR, Justice,

text:
    Steve Antonio ANTHONY v. STATE of Mississippi.
    No. 2010-CT-01004-SCT.
    Supreme Court of Mississippi.
    Jan. 17, 2013.
    Rehearing Denied March 14, 2013.

      Steve Antonio Anthony, appellant, pro se.

      Office of the Attorney General by Stephanie Breland Wood, Scott Stuart, attorneys for appellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice, for the Court:

¶ 1. The Lauderdale County Circuit Court convicted Steve Antonio Anthony of the sale of cocaine. He appealed his conviction, arguing that: (1) the circuit court erred by excluding evidence on cross-examination of the prior felony charges of the State’s confidential informant; (2) the circuit court erred in denying two peremptory challenges raised by the defense; and (3) the jury’s verdict is against the overwhelming weight of the evidence. The Court of Appeals affirmed the conviction. Anthony petitioned for certiorari with this Court, raising the same three issues. Finding that the trial court erred by limiting the cross-examination of the confidential informant (Cl), we reverse Anthony’s conviction and sentence and remand this case for a new trial.

FACTS

¶ 2. This Court adopts the statement of facts as provided in the Court of Appeals opinion as follows:

On December 4, 2009, Anthony was arrested for selling approximately 3.06 grams of cocaine to Arnold Brown, a confidential informant. The drug sale between Anthony and Brown took place on June 29, 2007.
Prior to the drug buy, Brown approached Agent Christopher Scott with the Meridian Police Department and the East Mississippi Task Force about working with the task force as a CL Brown contacted an individual known as “Pee Wee” who had cocaine he was willing to sell. Agent Scott began the operation to buy drugs through Brown from Pee Wee based on Brown’s information. Brown called Pee Wee on the orders of Agent Scott and set up a meeting place for the drug buy. Pee Wee agreed to meet Brown on 16th Avenue and 16th Street in Meridian, Mississippi. Agent Scott testified that he did not record the conversation, but the phone call was made from their briefing location. At the trial, Brown testified that the man he knew as Pee Wee was Anthony.
Before the Cl went to the drug-buy location, the task force searched Brown thoroughly to make sure he did not have any weapons or contraband on him. Brown was then issued money from the official task-force fund. The department made copies of the serial numbers of each bill used in the buy. The task force wired Brown with an audio and video device, and he was wired with a transmitter so the surveillance agents could hear Brown during the buy. Brown’s vehicle was searched in its entirety to make sure that no drugs, contraband, or weapons of any type were present in his vehicle.
After Brown was thoroughly searched and wired, Brown gave the agents the specific route that he was going to take to the buy. Agent Scott testified that the agents tried to do a physical surveillance without being too close in proximity to the buy in order to ensure that Brown’s cover was not blown. Agent Scott further testified that Brown did not make any stops between the pre-buy meeting and the buy location. Brown testified that Anthony told him he had some “soft,” which is powder cocaine. Brown asked Anthony for the price of a gram of cocaine. Anthony told Brown a gram of cocaine was $100.
When Brown and Anthony were at the designated place for the buy, Brown testified that Anthony got in Brown’s car in order to make the exchange. During the exchange, Anthony got out of the vehicle before the close of the buy. Brown then followed Anthony out of the car and approached Anthony about buying some pills in order to get Anthony on video. After the buy, Brown immediately met with the agents who confiscated the cocaine that Brown had bought from Anthony. At the post-buy debriefing, the agents again searched Brown and his car. The agents also took Brown’s statement. The Mississippi Crime Lab determined that substance sold to Brown was 3.06 grams of cocaine.
The jury convicted Anthony on June 2, 2010, for sale of cocaine. Anthony was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). The circuit court sentenced Anthony to sixty years in the custody of the Mississippi Department of Corrections without eligibility for probation or parole. Anthony was additionally ordered to pay a $5,000 fine.

Anthony v. State, 108 So.3d 419, 421-22 (Miss.Ct.App.2012).

¶ 3. During the trial, Anthony sought to cross-examine Brown regarding: (1) a pri- or conviction from 1993, (2) an arrest on February 26, 2007, for two counts of sale of a controlled substance and one count of contempt of child support, and (3) an arrest on April 17, 2007, for one count of possession of a controlled substance and one count of abuse/neglect/exploitation of a vulnerable adult. The trial court allowed cross-examination regarding the two counts of sale of a controlled substance for which Brown was arrested on February 26, 2007, based on the finding that Brown was “working off’ these charges as a confidential informant. The trial court, however, refused to allow cross-examination on the remaining charges and the 1993 conviction.

¶ 4. The Court of Appeals upheld the trial court’s ruling. The Court of Appeals found that at the time of trial, Brown’s 1993 conviction was seventeen years old and was subject to the time limits of Mississippi Rule of Evidence 609(b). The Court of Appeals also found that, because Anthony had failed to show the trial court that Brown had been convicted of the remaining charges, evidence of Brown’s arrests was inadmissible under Rule 609.

DISCUSSION

¶ 5. “Limitations on cross-examination are reviewed for abuse of discretion.” Jefferson v. State, 818 So.2d 1099, 1109 (Miss.2002). We will affirm the trial court’s exercise of discretion unless the ruling resulted in prejudice to the accused. Clark v. State, 40 So.3d 531, 542 (Miss.2010).

¶ 6. Mississippi allows wide-open cross-examination of any matter that is relevant, including the possible interest, bias, or prejudice of the witness. Meeks v. State, 604 So.2d 748, 755 (Miss.1992). “For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.” M.R.E. 616. This includes interrogating the witness’s belief or perception as to whether the State could extend leniency for pending charges. Foster v. State, 508 So.2d 1111, 1114-15 (Miss.1987), overruled on other grounds by Powell v. State, 806 So.2d 1069 (Miss.2001). “Not only is this right secured by our rules of evidence ... it is a function of the confrontation clauses of federal and state constitutions.” Caston v. State, 823 So.2d 473, 491 (Miss.2002) (quoting Suan v. State, 511 So.2d 144, 148 (Miss.1987)).

¶ 7. Here, as Judge Russell found in her dissent, the favorable treatment Brown had received on his prior charges in exchange for his testimony was a material point that affected Brown’s credibility as a witness. Anthony, 108 So.3d at 428. In limiting Anthony’s cross-examination of Brown, the trial court denied Anthony the opportunity to fully challenge Brown’s credibility. This error by the trial court is augmented by the fact that the State’s case relied heavily on Brown’s testimony. Based on the record before us, the only evidence placing Anthony inside Brown’s vehicle is Brown’s testimony. The video submitted into evidence shows only Brown handing over something to an unknown person sitting in the vehicle. The video does not reveal the face or even the clothing of the person. Thus, the reliability of Brown’s testimony was crucial in this instance. And Anthony’s jury should have heard the full extent of the deals between Brown and the State.

CONCLUSION

¶ 8. For these reasons, we find that the trial court’s error in limiting Anthony’s cross-examination of Brown constituted reversible error. Accordingly, we reverse the judgments of the Court of Appeals and the Lauderdale County Circuit Court and remand the case to the trial court for a new trial consistent with this opinion.

¶ 9. REVERSED AND REMANDED.

WALLER, C.J., KITCHENS, CHANDLER AND KING, JJ„ CONCUR. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON AND RANDOLPH, P.JJ., AND COLEMAN, J.

LAMAR, Justice,

dissenting:

¶ 10. I disagree with the majority’s conclusion that the circuit court erred in limiting Anthony’s cross-examination of Brown. Therefore, I respectfully dissent.

¶ 11. This Court reviews a circuit court’s limitations on cross-examination for an abuse of discretion, and that discretion “must be exercised within the boundaries of the Mississippi Rules of Evidence.” This Court has explained that “[ajbuse of discretion is found when the reviewing court has a ‘definite and firm conviction’ that the court below committed a clear error of judgment and conclusion it reached upon a weighing of the factors.” Additionally, error may not be based upon a evidentiary ruling “[ujnless a substantial right of the party is affected.” In other words, for the circuit court’s evidentiary ruling to constitute reversible error, it must have had the effect of denying the defendant a fundamentally fair trial, resulting in a miscarriage of justice.

¶ 12. To be admissible, all evidence must comport with our Rules of Evidence, and no evidence is admissible if it is not relevant or if its probative value is outweighed by its prejudicial effect. It is true, as the majority notes, that Mississippi allows “wide-open cross-examination so long as the matter is relevant.” But cross-examination is not without limits, and our trial courts can and should limit cross-examination into issues that are not relevant, or are otherwise barred by our Rules of Evidence. Indeed, Rule 611(a) expressly recognizes that a judge may limit cross-examination to “(1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

¶ 18. Anthony argues the circuit court erred by limiting his cross-examination of Brown on two issues — Brown’s 1993 conviction and his April 2007 arrest. The majority determines that the Court erred in restricting his cross-examination because the “favorable treatment Brown had received on his prior charges in exchange for his testimony was a material point that affected Brown’s credibility as a witness.” The majority concludes that the circuit court’s limitation denied “Anthony the opportunity to fully challenge Brown’s credibility.” But, while Anthony has a right to confront his accusers, this right is not unlimited, and is “always subject to the trial court’s inherent power to limit cross-examination to relevant factual issues.”

¶ 14. I agree that Anthony had a right to cross-examine Brown about his arrangement to “work off’ certain drug charges as a confidential informant. The circuit court specifically questioned Brown, under oath and outside the presence of the jury, about his prior charges, and the court allowed Anthony’s attorney to question Brown as well. Then the circuit court ruled:

Court: [Y]ou may ask about the pill charges that he caught that were part of the deal that was going to be done away with for his cooperation. I mean, that happened and that’s relevant, and you may ask about that. As to felonies in years past, you may not ask about that. As to some dismissal of a vulnerable adult charge or abuse of a vulnerable adult charge where he was not convicted, I don’t think that’s an appropriate matter for cross-examination, you may not ask about that unless you have got some proof that it was directly related to the deal.

¶ 15. The circuit court determined that Anthony could question Brown regarding the pill charges that were going to be dismissed as part of the deal Brown had made in exchange for his cooperation, but held that the 1993 conviction was so remote in time that it had no bearing on Anthony’s case, and that the April 2007 arrest was irrelevant because it was not related to Brown’s deal with the drug task force and therefore, not probative of bias. Because Anthony presented no specific facts that would support a finding that Brown’s 1993 conviction or April 2007 arrest had any relevance to Brown’s arrangement to work as a confidential informant, or to Brown’s bias or credibility, I would find that the circuit court properly-limited cross-examination on these issues.

¶ 16. The majority finds that Rule 616 of our Rules of Evidence governs this question because it provides that “evidence of bias, prejudice, or interest of the witness/or or against any party to the case is admissible” for the “purpose of attacking the credibility of a witness.” It is clear to me that Anthony sought to cross-examine Brown on his 1993 conviction and April 2007- arrest not to show that Brown had some bias or prejudice against Anthony, but to attack Brown’s character for truthfulness by showing Brown had broken the law on several occasions and was not credible. Therefore, I would find Anthony’s cross-examination on these two issues was governed by Rules 608 and 609 of our Rules of Evidence, not Rule 616. Rules 608 and 609 of our Rules of Evidence limit admission of past convictions and specific instances of conduct of a witness when offered only to attack the witness’s character for truthfulness.

¶ 17. Admissibility of evidence related to Brown’s 1993 conviction for the purpose of attacking Brown’s character for truthfulness is governed by Rule 609:

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

¶ 18. The record does not reveal the crime committed in 1993 or when Brown was released from prison. However, it is undisputed that more than ten years (in fact, approximately seventeen) had passed since the date of the conviction at the time Brown testified. There is no evidence that Brown was released from confinement imposed for the conviction less than ten years before he testified against Anthony, and Anthony does not argue that he was. Under Rule 609(b), evidence of the 1993 conviction was admissible only if the court determined that the probative value of the conviction substantially outweighed its prejudicial effect. Furthermore, such evidence is not admissible unless Anthony gave sufficient written notice to the State of his intent to introduce evidence of the antiquated conviction.

¶ 19. The record shows that the circuit court heard argument on admissibility of both instances of prior conduct outside the presence of the jury. The circuit-court judge found, as to the 1993 conviction, that Anthony had not given the sufficient written notice required under Rule 609, that the conviction was so remote that it would have no bearing on the case, and that admission of the evidence would be unfairly prejudicial to the State. The circuit court applied the correct legal analysis, and its ruling was not an abuse of discretion. I would affirm the circuit court on this issue.

¶20. As to the April 2007 arrest, the record is unclear regarding the nature of the crimes, but it appears to be an arrest for abuse of a vulnerable adult. Anthony admits that his counsel’s argument and questions were based on a booking report provided to the defense during discovery, and that he does not know exactly what the crimes involved or when they occurred. Anthony does not argue that the April 2007 arrest led to a conviction, and there is no evidence that Brown was convicted of any crimes that he was arrested for in April 2007. Therefore, cross-examination regarding the April 2007 arrest is governed by Rule 608, which addresses cross-examination into a witness’s specific instances of conduct, other than conviction of a crime, and provides in pertinent part as follows:

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness....

This Court has stated clearly that instances of past conduct offered solely to attack a witness’s credibility “must be such as to reflect upon the witness’s character for truthfulness. If the past conduct did not involve lying, deceit, or dishonesty in some manner, it cannot be inquired into on cross-examination. The trial court has no discretionary authority to permit inquiry by cross-examination into conduct not involving truthfulness.” Because Anthony offered no evidence that the conduct that gave rise to Brown’s April 2007 arrest involved lying, deceit, or dishonesty, I would find the circuit court properly limited cross-examination on this issue.

¶ 21. Anthony was allowed to question Brown regarding whether he had ever been convicted of a felony and regarding his only drug charges giving rise to his arrangement to work as a confidential informant. At trial, Anthony asked Brown the following questions in the presence of the jury:

Q: Have you ever been convicted of any felonies?
A: Yes.
Q: Mr. Brown, how is it that you became involved with MBN or the Laud-erdale County Task Force?
A: I caught a sale — a pill charge.
Q: When you say you “caught a pill charge,” what do you mean?
A: I sold to someone and they — I got caught.
Q: Okay. But they arrested you?
A: Yes.
Q: Okay.
A: Yes, sir.
Q: What were you told when you got arrested?
A: What was I told?
Q: Were you told, hey you can work this charge off, we can cut you a deal and let you go free or—
A: No. I went to them and asked them could I help myself.
Q: Why did you want to do that?
A: To keep from going to jail.
Q: And, obviously, you have done it so far?
A: Yes, sir.
Q: Okay. But you also got paid, didn’t you?
A: Yes, sir.

¶22. Anthony had an opportunity to, and did, fully question Brown in the presence of the jury regarding his agreement to “work off’ his own drug charges by working with the drug task force. Indeed, Anthony questioned Brown about the specific charges; ie., the pill charges, that gave rise to Brown’s work as a confidential informant. The jury was made aware that Brown had his own reasons to cooperate with the police — they heard Brown testify that he previously had been convicted of a felony, that he was working with the drug task force to avoid going to jail, and that he was paid to be a confidential informant. Additionally, the record shows that Christopher Scott, the police officer who arranged for Brown to work as a confidential informant, also testified that the pill charges against Brown were dropped in exchange for Brown’s work with the drug task force, and that Brown was paid for his work. In fact, during Anthony’s cross-examination, Scott agreed that working as a confidential informant was “like a get-out-of-jail-free card” and that Brown had an “ulterior motive” to testify so that his drug charges would “go away.”

¶ 23. Any additional testimony that Brown was convicted of an unrelated crime in 1993 or arrested for some uncertain crime in April 2007 would be cumulative on the issues of Brown’s credibility and/or motivation to testify against Anthony. Even if the circuit court abused its discretion by limiting Anthony’s cross-examination on these two issues, which I do not believe that it did, I cannot agree that the limitation affected Anthony’s substantial rights, denied him a fundamentally fair trial, or resulted in a miscarriage of justice. Therefore, I would find that any error on the part of the circuit court in limiting Anthony’s cross-examination was harmless error, at worst.

¶ 24. For the foregoing reasons, I would affirm the circuit court’s decision to limit Anthony’s cross-examination of Brown, and would affirm Anthony’s conviction and sentence.

DICKINSON AND RANDOLPH, P.JJ, AND COLEMAN, J., JOIN THIS OPINION.

      . I note that the majority states that Anthony raised the same three issues in his petition for writ of certiorari before this Court that he raised before the Court of Appeals. (Maj. Op. at ¶ 1). However, Anthony raises two issues in his petition, only the first of which was raised before the Court of Appeals: (1) that the circuit court improperly limited his cross-examination of Brown and (2) that his right to a speedy trial was violated. Because Anthony raises the issue of his right to a speedy trial for the first time in his petition, this claim is procedurally barred and I decline to address it. Stockstill v. State, 854 So.2d 1017, 1023 (Miss.2003) (citations omitted).

      . Johnston v. State, 618 So.2d 90, 93 (Miss.1993) (citation omitted).

      . Id.

      . Withers v. State, 907 So.2d 342, 345 (Miss.2005) (citation omitted).

      . M.R.E. 103(a).

      . Lacy v. State, 629 So.2d 591, 594 (Miss.1993).

      . M.R.E. 402, 403.

      . Johnston, 618 So.2d at 93. See also M.R.E. 611(b).

      . M.R.E. 611(a).

      . Maj. Op. at ¶ 7.

      . Id.

      . Foster v. State, 508 So.2d 1111, 1114 (Miss.1987) (citation omitted) (overruled on other grounds).

      . M.R.E. 609 (emphasis added).

      . M.R.E. 609.

      . M.R.E. 608 (emphasis added).

      . Brent v. State, 632 So.2d 936, 944 (Miss.1994) (citations omitted).


source: Caselaw Access Project

author: LEE, C.J., for the Court:

license: Public Domain

text:
    Jeffrey Dale BEECHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00251-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2011.
    Rehearing Denied April 10, 2012.

      John D. Watson, Southhaven, attorney for appellant.
    Billy L. Gore, attorney for appellee.
   LEE, C.J., for the Court:

¶ 1. The motion for rehearing is granted. The previous opinion of this Court is withdrawn, and this opinion is substituted in lieu thereof. We reverse and remand for further proceedings consistent with this opinion.

¶ 2. Jeffrey Dale Beecham was convicted in the Circuit Court of DeSoto County of driving under the influence (DUI), causing death. He was sentenced as a habitual offender, under Mississippi Code Annotated section 99-19-81 (Rev.2007), to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, he appeals both the conviction and sentence. We find that the circuit court’s decision to admit a certified copy of the victim’s death certificate to show the cause of death, without sponsoring testimony by the person who prepared the death certificate, was error necessitating that the conviction be reversed and the case remanded for further proceedings consistent with this opinion.

FACTS

¶ 3. On March 27, 2007, Beecham was driving a pickup truck while intoxicated. The victim, Freda Lovelace, who was seventy-seven years old, was struck broadside by Beecham’s pickup truck. She was trapped inside her vehicle until emergency personnel arrived and transported her to a hospital, where she died approximately six weeks later. The jury heard testimony from paramedics and police officers at the scene that Beecham was disoriented, resisted being transported to a hospital, and smelled of alcohol. His blood-alcohol content was 0.26%, well above the legal limit of 0.08%. Beecham gave a statement in which he said Lovelace drove into an intersection, and he did not have time to stop his truck. However, an accident-reconstruction expert testified that Beecham was traveling between twelve to fifteen miles per hour over the posted speed limit, and he made no attempt to brake before his pickup truck impacted Lovelace’s vehicle.

¶ 4. During the first day of trial, a certified copy of Lovelace’s death certificate was introduced without a sponsoring witness, over the defense’s objection, to show that the cause of death was “complications of blunt[-]foree injuries to [the] head and chest.” The record shows that when the defense raised its contemporaneous objection to the death certificate’s admission, there was a bench conference which was not recorded. At the end of the trial’s first day, the trial judge said, “I note that we had a conference at the bench, and I know we had one earlier regarding the death certificate. As I indicated, we’ll take that up on the record in the morning.” At the commencement of the trial’s second day, defense counsel stated:

I have no problem with the death certificate. We do not deny that, unfortunately, the lady passed away. The problem I have with the death certificate states a cause of death ... blunt[-]force trauma. Which, in essence, proves that element of the State’s case .... [i]t denies my client’s right to confrontation. This is a case, as Your Honor knows, that the victim did not — she did not die at the scene_ It was some, I think, fifty-three days later, and I think that further goes to my argument that — that—basically, [the District Attorney is] able to prove one element of his case through a document that I have no — no way of cross-examining a doctor to show that there potentially could have been other causes of the death.

The death certificate actually listed as cause of death “[c]omplications of blunt[-]force injuries to head and chest.” The death certificate also indicated the injuries were sustained in an automobile accident at the same time and place as witnesses testified to at trial. It was signed by Miguel A. Laboy, M.D., who is listed as either a physician or medical examiner.

DISCUSSION

¶ 5. Objections based upon the Confrontation Clause to the admission of evidence are subject to de novo review. Smith v. State, 986 So.2d 290, 296 (¶ 18) (Miss.2008). The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. See also Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 6. In its brief before this Court, the State states that the issue of whether the death certificate was properly admitted is controlled by Crawford and its progeny. The State concedes that the issue of whether the death certificate could be admitted without sponsoring testimony to prove an element of the crime charged “caused us some concern.” However, the State goes on to argue that the Mississippi Supreme Court’s decision in Birkhead v. State, 57 So.3d 1223 (Miss.2011), which was decided while the present appeal was pending, resolved the matter by holding that the Confrontation Clause is not implicated. We disagree. While Birkhead did involve the admissibility of a death certificate in a criminal case, its similarity to this case ends there, and it is neither legally nor factually analogous to the case before us. In Birkhead, the pathologist who prepared the death certificate testified and was subject to cross-examination. Id. at 1236 (¶ 44).

¶ 7. In this case, the absence at trial of the person who prepared the death certificate is the central issue. Furthermore, in Birkhead the information in the death certificate that the defendant objected to was not an element of the crime charged; rather, the death certificate recorded statements as to the time of the victim’s injury and death, which presumably Dr. Steven Hayne, who prepared the death certificate, obtained from one of two police officers. For reasons not apparent in the opinion, Dr. Hayne included the time of death on the death certificate. Id. In this case, the defense objected to the statement on the death certificate that the cause of death was complications of blunt-force injuries to head and chest sustained in a automobile accident in Horn Lake, Mississippi, on March 27, 2007. Thus, in Birkhead, the information in the death certificate did not establish any element of the crime charged, while in this case, the only medical evidence tending to show that Lovelace died as a result of the automobile accident was the death certificate.

¶8. In Crawford, the Supreme Court held that when hearsay is characterized as nontestimonial, it may be introduced in a criminal trial, but when hearsay is characterized as testimonial, the Confrontation Clause bars the introduction of hearsay. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The Supreme Court expanded on the distinctions between nontestimonial and testimonial hearsay in Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), stating:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

The Supreme Court has consistently found that information gathered by the police when they are engaged in actively protecting the well-being of a citizen is nontesti-monial and not subject to the Confrontation Clause. Michigan v. Bryant, — U.S. —, 131 S.Ct. 1143, 1160, 179 L.Ed.2d 93 (2011); Davis, 547 U.S. at 822, 126 S.Ct. 2266. In Bryant, the Supreme Court focused on whether the information gathered in an investigation was gathered in the initial stages, when it was more likely to be found nontestimonial, rather than in latter, “formal,” stages, where it was more likely to be found testimonial. Bryant, 131 S.Ct. at 1160.

¶ 9. The Mississippi Supreme Court’s reasoning in Birkhead is consistent with that of the Supreme Court concerning information gathered by the police in responding to calls for assistance. In Birk-head, the issue went to the time of the victim’s injury and death, which were recorded on the death certificate. Birkhead, 57 So.3d at 1236 (¶ 44). It was not entirely clear how these exact times were ascertained. However, it was clear that: the recorded time of injury was the exact time one police officer either received or responded to a report that a crime was in progress; the recorded time of death was approximately the same as when the victim was pronounced dead at a hospital; and at least one police officer was present at the hospital and in radio contact with another police officer still at the scene of the crime. Id. at 1227-28 (¶ 14).

¶ 10. That situation is in contrast to the case before this Court. Here, the information Beecham objected to was the cause of death, which was not determined until nearly six weeks after the automobile accident. At the time the death certificate was prepared, Beecham had already been indicted for driving under the influence. After Lovelace died and the death certificate was prepared, the indictment was amended. While the issue is not directly before us, we note that the death certificate in this case listed the date of injury and location at which it was sustained. It is most probable that the person who prepared the death certifícate was not present at this location on this date. However, this information is more analogous to the information contained in Birkhead and found to be nontestimonial — rthat is, when the police were responding to an emergency in progress. Conversely, the determination and official recording of the exact cause of death, which is the issue in the present case, is a formal undertaking that is not an action done in order to protect the public in an ongoing crime. In sum, we find that in Birkhead the Mississippi Supreme Court did not hold as a matter of precedent that a death certificate is admissible without sponsoring evidence to prove an element of a crime charged over a defendant’s objection based upon the Confrontation Clause.

¶ 11. The State additionally contends in its brief before this Court that the death certificate was admissible as a hearsay exception under the vital-records exception in Mississippi Rule of Evidence 808(9). However, under Crawford, any record or report made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” must be subjected to cross-examination to be admissible at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009) (citing Crawford, 541 U.S. at 52, 124 S.Ct. 1354). The Supreme Court further explained the relationship between hearsay exceptions and the Confrontation Clause, stating:

Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial.

Melendez-Diaz, 129 S.Ct. at 2539-40.

¶ 12. According to United States Department of Transportation, “[i]n 2009,10,-839 people were killed in alcohol-impaired-driving crashes. These alcohol-impaired-driving fatalities accounted for 32 percent of the total motor vehicle traffic fatalities in the United States.” Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Transp., Alcohol-Impaired Driving (2009). The basic test of what hearsay is considered to be testimonial and subject to the Confrontation Clause is if the statement or record is made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Melendez-Diaz, 129 S.Ct. at 2532. The physician who signed Lovelace’s death certificate knew Lovelace’s injuries stemmed from an automobile accident because this information was on the death certificate itself. When nearly a third of all traffic fatalities involve driving under the influence, any objective witness preparing a death certificate in a traffic death should reasonably expect a criminal prosecution could ensue. Therefore, we find that the death certificate’s statement as to the cause of death was testimonial in nature and subject to the Confrontation Clause.

¶ 13. The Supreme Court has been unambiguous: “[cjonfrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Id. at 2537. We do not presume that the physician who prepared Lovelace’s death certificate was incompetent to state with medical certainty that whatever “complications” ultimately resulted in her death stemmed from the automobile accident. Therefore, we reverse and remand this case for further proceedings consistent with this opinion.

¶ 14. THE JUDGMENT OF THE DE-SOTO 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 DESOTO COUNTY.

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

      . Our opinion considers only the admissibility of death certificates in the context of criminal prosecutions subject to the Confrontation Clause. We make no comment upon the use of death certificates in other cases involving civil matters, see, e.g., Laurel Yamaha, Inc. v. Freeman, 956 So.2d 897, 902 (¶ 15) (Miss.2007).


author: ISHEE, J., for the Court.

text:
    Nancy CLARK, Individually and as Administratrix of the Estate of Shenandoah H. Clark, Deceased and Christie Clark, Appellant v. TOYOTA MOTOR SALES U.S.A., INC., Toyota Motor Co. Ltd., Toyota Motor Corporation, Toyota Motor Distributors, Inc. and Roper Toyota, Inc., Appellees.
    No. 2009-CA-00554-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Rehearing Denied May 29, 2012.
    Certiorari Granted Sept. 6, 2012.
    Certiorari Dismissed Feb. 28, 2013.

      Hunter W. Lundy, Kristie M. Hightower, Wayne E. Ferrell Jr., Jackson, J. Ashley Ogden, attorneys for appellants.
    David L. Ayers, J. Collins Wohner Jr., Jimmy B. Wilkins, Jennifer A. Rogers, Jackson, attorneys for appellees.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   ISHEE, J., for the Court.

¶ 1. Late one evening in July 2001, Shenandoah Clark got behind the wheel of his friend’s 2000 Toyota Tundra TRD truck (the truck) in Tupelo, Mississippi, to drive them to a casino out of town. While driving, Clark crashed the truck. Thereafter, Clark suffered severe spinal injuries, causing him to become a quadriplegic. Clark and his then-wife, Christie Johnston Clark (Christie), sued Toyota Motor Sales, U.S.A., Inc., Toyota Motor Co. Ltd., Toyota Motor Corporation, Toyota Motor Distributors, Inc., and Roper Toyota, Inc. (collectively referred to as Toyota) in Hinds County Circuit Court, claiming the truck was defective. After a trial on the merits before Judge Winston L. Kidd, the jury returned a verdict in favor of Toyota. Clark and Christie timely filed an appeal claiming: (1) the circuit court abused its discretion by failing to grant Clark’s motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial; (2) the circuit court abused its discretion by allowing jurors to view the truck and a comparable truck provided by Toyota outside the courtroom; (3) the circuit court erred by submitting jury-verdict sheets to the jury without the modifications requested by Clark’s attorneys; (4) the circuit court abused its discretion by denying Clark’s motion to strike Toyota’s expert witness and refusing to allow Clark to present a rebuttal witness; (5) Toyota’s closing remarks were improper; and (6) the circuit court’s cumulative errors warrant reversal and remand of the case for a new trial. Toyota responded and filed a counter-appeal claiming that Hinds County was not a proper venue and that the circuit court abused its discretion by excluding evidence of Clark’s drinking and intoxication on the night of the incident. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On the night of July 11, 2001, Clark was shooting pool with friends, including Kevin Knight, at a local pool hall in Tupe-lo, Mississippi. After some time at the pool hall, Knight invited Clark and the others back to Knight’s house, where the group continued visiting. Sometime around midnight, Clark and Knight decided to drive to a casino located in Tunica, Mississippi. Knight began driving the pair in his new truck, but at some point during the trip, he became tired and asked Clark to drive. Clark complied, and shortly thereafter, Knight fell asleep in the passenger’s seat.

¶ 8. While driving around a bend on a highway in DeSoto County, Mississippi, Clark steered the vehicle off of the road, and the truck veered onto the shoulder of the highway. The truck proceeded to barrel down into the wooded area adjacent to the shoulder of the highway and eventually ran up a seven-foot embankment located at a nearby intersection. The embankment acted as a ramp and catapulted the truck into the air where the truck cleared the intersection, rolled mid-air, and crashed upside down into a field on the opposite side of the intersection, ultimately causing the roof above Clark’s head to collapse. The truck continued rolling deeper into the field before coming to a halt on its roof.

¶4. The passenger’s side of the roof remained largely intact, and Knight awoke to discover that he and Clark were suspended upside down, held in place by their seatbelts. Unable to awaken Clark, Knight crawled out of the truck and noticed oncoming blue emergency lights — the result of a passerby having noticed the truck in the field and calling emergency responders to the scene.

¶ 5. Clark and Knight were airlifted to The Regional Medical Center (the Med) in Memphis, Tennessee. Knight was released from the Med with minor, surface damage. However, Clark had suffered severe spinal injuries and was deemed a quadriplegic. Over the next few years, Clark had numerous complications, including incapacitating bed sores, cerebral fluid backups, and surgeries for these conditions as well as others. He also underwent extensive physical therapy but was never able to regain the use of his legs or arms. The stress of his health problems eventually deteriorated his marriage, and he and Christie divorced. He then lived with his parents until his death in 2011.

¶ 6. On December 28, 2001, Clark and Christie filed suit in circuit court against Toyota. Although Toyota had a registered agent for service of process in Rankin County, Mississippi, it also had a designated agent for service of process at Prentice Hall Corporation System in Hinds County, Mississippi. As such, Clark and Christie chose Hinds County to proceed with their action.

¶ 7. A jury trial took place in 2008 before Judge Winston Kidd. Just before the trial, Clark filed a motion in limine to exclude evidence of Clark’s drinking and intoxication on the night of the accident. In particular, Clark attempted to prevent the introduction of medical records from the Med showing Clark’s blood alcohol level was 0.16 on arrival and police records showing Clark had been charged with driving under the influence (DUI). The circuit court granted the motion in limine because “the issue of the cause of [Clark’s] running off the road has been admitted to by [Clark].”

¶ 8. Clark’s counsel also filed a motion in limine to exclude the opinions of Toyota’s expert witness, Lee Carr. Toyota had retained Carr as an expert in accident reconstruction. Alternatively, Clark’s motion requested permission to introduce a rebuttal expert witness in response to Carr’s testimony. After reviewing the motion in its entirety and conducting a hearing, the circuit court denied Clark’s request to exclude Carr and reserved its ruling as to a rebuttal witness.

¶ 9. The two-week trial proceeded, during which Toyota provided an “exemplar” truck of the truck in question so the jury could observe the truck as it would have been before the accident. The exemplar truck was too large to bring into the courtroom, so the circuit judge allowed Toyota to place it by the curb outside the courthouse. The actual truck involved in the incident was also brought to the courthouse and placed by the curb next to the exemplar truck. Despite Clark’s objection, the circuit court allowed the jury, one of Clark’s attorneys, and one of Toyota’s attorneys to be accompanied to the curb by the bailiffs, where they were briefly allowed to view the actual truck and the exemplar truck side by side.

¶ 10. Toyota’s case-in-chief included testimony by Carr. After Toyota rested, Clark attempted to introduce a rebuttal witness to contradict the testimony of Carr. Toyota objected, arguing it had never received any information about the opinion intended to be offered by the rebuttal witness. The circuit court agreed and disallowed Clark to introduce a rebuttal witness surreptitiously without giving Toyota any advance notice of his opinions. Accordingly, the circuit judge denied Clark’s request to introduce a rebuttal witness to Carr’s testimony.

¶ 11. At the close of the trial, Clark and Toyota made closing remarks. Toyota’s closing statements referenced Clark’s “bad judgment,” his inability to account for lapses in time, and his outing to the pool hall. Counsel for Toyota explained that Clark’s bad decisions involved his choices to drive late at night and travel well in excess of posted speed limits. In doing so, Toyota’s counsel reminded the jury that it was Clark’s negligence that caused the accident, not Toyota’s.

¶ 12. After closing arguments were made, Clark requested that the jury-verdict sheets be amended to reflect Clark’s injuries as “enhanced injuries.” The circuit court denied this request, and the jury was given the jury-verdict sheets simply referencing “Clark’s injuries.” After some deliberation, ten of the twelve jury members rendered a verdict in favor of Toyota. Clark’s attorneys immediately filed a motion for a JNOV or, in the alternative, a new trial. The circuit court denied the motion.

¶ 13. Clark timely appealed, claiming: (1) the circuit court abused its discretion by failing to grant Clark’s motion for a JNOV or a new trial; (2) the circuit court abused its discretion by allowing jurors to view the truck and an exemplar truck provided by Toyota outside the courtroom; (3) the circuit court erred by submitting jury-verdict sheets to the jury without modifying the language to state “enhanced injuries” in reference to Clark’s injuries as requested by Clark’s counsel; (4) the circuit court abused its discretion by denying Clark’s motion to strike Toyota’s expert witness and refusing to allow Clark to present a rebuttal witness; (5) Toyota’s closing remarks regarding Clark’s “bad judgment,” lapses in memory, and time at the pool hall improperly implied that Clark was under the influence of alcohol; and (6) the circuit court’s cumulative errors warrant reversal and remand of the case for a new trial. Shortly after filing the appeal, Clark passed away. Nancy Clark was subsequently substituted as a party to the case on behalf of Clark, both individually and as the administratrix of Clark’s estate (Clark’s estate). Toyota filed a counter-appeal asserting that Hinds County was not a proper venue and that the circuit court abused its discretion by excluding evidence of Clark’s drinking and intoxication on the night of the incident. Finding no error, we affirm the circuit court’s judgment.

DISCUSSION

I. Motion for a JNOV or, Alternatively a New Trial

¶ 14. The standard of review for a circuit court’s denial of a motion for a JNOV “tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence.” Penny Pinchers v. Outlaw, 61 So.3d 245, 248 (¶ 11) (Miss.Ct.App.2011) (quotation omitted). White v. Stewman, 932 So.2d 27 (¶ 15) (Miss.Ct.App.2006). As to a JNOV, we have held: “If there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.” Penny Pinchers v. Outlaw, 61 So.3d 245, 248 (¶ 12) (Miss.Ct.App.2011) (quotation omitted). Conversely, “a new trial becomes appropriate when a trial court determines that error within the trial mechanism itself has caused a legally incorrect or unjust verdict to be rendered. The motion for a new trial affords trial courts with an alternative to a grant of a [JNOV]....” White, 932 So.2d 27, 33 (¶ 15) (Miss.Ct.App.2006). As such, we review the denial of a motion for a new trial under an abuse-of-discretion standard. Id. at 33, (¶ 16).

¶ 15. Clark’s estate argues the motion for a JNOV or, alternatively, a new trial should have been granted due to numerous alleged errors made by the circuit court, including: allowing jurors to view Toyota’s exemplar truck, submitting jury-verdict sheets to the jury without the modified language requested by Clark’s counsel, refusing to strike Toyota’s expert witness’s testimony, and refusing to allow Clark to present a rebuttal expert witness. Clark’s estate also argues that Toyota’s closing remarks prejudiced the jury enough to require a JNOV or a new trial.

¶ 16. Mississippi Rule of Civil Procedure 50 governs “motions for a directed verdict and for judgment notwithstanding the verdict.” The Comment to Rule 50 states: “Rule 50 is a device for the court to enforce the rules of law by taking away from the jury cases in which the facts are sufficiently clear that the law requires a particular result.” Having reviewed the record, we cannot conclude that the circuit court erred by failing to take the case away from the jury. Neither was the weight of the evidence such that a new trial was proper. The jury listened to arguments, heard testimony, and reviewed evidence submitted by both parties for two weeks before arriving at their verdict. Certainly, the parties’ versions of why Clark’s injuries occurred were markedly different. Clark asserted that the truck’s roof was defective and that the truck should have been able to withstand the subject incident. Toyota argued the truck’s safety features met and exceeded regulation standards, and the truck was designed to withstand a plethora of accidents. However, Clark’s negligence in steering the truck off of the road, up an embankment, and into the air initiated a series of radical events that were not within the expansive range of accidents against which any safety features could have protected Clark.

¶ 17. Both during Clark’s case-in-chief and Toyota’s case-in-chief, Toyota provided witness testimony, documents, and various other types of evidence to contradict Clark’s case. Accordingly, the jury was privy to substantial evidence contesting Clark’s claim. The jury had more than enough evidence upon which it could have relied when deciding Toyota was not at fault.

¶ 18. The determination of whether or not the truck was defective and, if so, whether the defect caused Clark’s injuries was, by nature, a fact-intensive analysis. It is well settled that conclusions as to facts are within the sole discretion of the jury. Upchurch ex rel. Upchurch v. Rotenberry, 761 So.2d 199, 206 (¶¶ 24-25) (Miss.2000) (citation omitted). We have also held “in the face of differing versions of the facts presented by competing parties to the litigation, it is the duty of the jury sitting as finders of fact to assess the credibility of the witnesses and determine what weight and worth to give any particular element of the evidence.” Thompson ex rel. Thompson v. Lee County Sch. Dist., 925 So.2d 57, 70 (¶ 19) (Miss.2006) (citation omitted). As such, while some cases provide an opportunity for the circuit court to remove the case from the province of the jury due to the facts being sufficiently clear to overturn the jury’s verdict, the present case does not fall within that category. The weight and sufficiency of the evidence warranted the circuit court’s denial of Clark’s motion for a JNOV or, alternatively, a new trial. This issue is without merit.

II. Observation of the Actual Truck and Toyota’s “Exemplar” Truck

¶ 19. The standard of review is abuse of discretion when reviewing whether a circuit judge erred by allowing a jury to view property outside of the courtroom. Miss. Code Ann. § 13-5-91 (Rev.2002). During the trial, the circuit judge allowed the jury to observe the truck and an undamaged similar truck, an “exemplar,” at the street curb outside of the courtroom. Two attorneys, one representing each party, were also allowed to view the actual truck and the exemplar truck. All persons were escorted by the circuit court’s bailiffs. No testimony was rendered, nor were the jurors and attorneys allowed to speak while observing the vehicles.

¶ 20. Clark’s estate contends it was reversible error for the circuit court to have allowed the jurors and attorneys to observe the vehicles while unattended by the judge and other court personnel. Mississippi Code Annotated section 13-5-91 grants a circuit judge discretionary authority to allow parties and jurors the right to view or inspect property outside of the courtroom. Id. However, in doing so the statute states:

The whole organized court, consisting of the judge, jury, clerk, sheriff, and the necessary number of deputy sheriffs, shall proceed, in a body, to such place or places, property, object[,] or thing to be so viewed or inspected, which shall be pointed out and explained to the court and jury by the witnesses in the case.

Id.

¶ 21. The record reflects that only the jurors, two attorneys, and certain bailiffs were allowed to view the vehicle. The statute clearly provides that the entire court, including the judge, clerk, sheriff, and deputy sheriffs, “shall proceed, in a body” to the location of the property. Id. As such, we agree it was error for the circuit court to have refrained from accompanying the jurors, attorneys, and bailiffs. We also find error in the circuit court’s failure to order that a witness be present to “point out and explain to the court and the jury” what they were viewing. Id.

¶ 22. However, as stated previously, no one was allowed to comment while viewing the vehicles. Because no one was permitted to discuss the vehicles while the viewing took place, there was no risk of the jurors becoming prejudiced against one party or the other. Each juror was allowed to form his or her independent opinion as to what he or she observed without undue influence from comments or conversations with other jurors or other persons present at the inspection site. The mere fact that the circuit judge, clerk, and sheriff were not present does not indicate, on its own, that the jurors were prejudiced against Clark or Toyota.

¶ 23. Additionally, while the statute calls for a witness to be present to explain the property in question, ample testimony was provided both prior to and after the viewing to explain to the jurors the significance of the two trucks. Furthermore, common sense dictates the jurors understood that one vehicle was the truck in question, and the other vehicle was a similar, but undamaged, truck.

¶ 24. This method of viewing the vehicles resulted in no more or no less influence than what would have occurred had the entire court been present at the site of the vehicles. Accordingly, although we have determined the circuit court erred, we find the error was harmless. This issue is without merit.

III. Jury-Verdict Sheets Reflecting Clark’s “Enhanced Injuries”

¶25. With regard to our standard of review for analyzing jury instructions, we have held:

When an appellate court reviews a claim of trial court error in granting or denying a jury instruction, it is required to review all of the instructions as a whole. Defects in specific instructions will not mandate reversal when all of the instructions, taken as a whole, fairly— although not perfectly — announce the applicable primary rules of law.

O’Keeffe v. Biloxi Casino Corp., 76 So.3d 726 at 731 (¶ 22) (Miss.Ct.App., 2011) (internal citations omitted). Here, Clark’s estate argues the jury was confused by the omission of the adjective “enhanced” to describe Clark’s injuries in the jury verdict sheets. Specifically, Clark’s estate asserts “Special Verdict Sheet 23” and “Special Verdict Sheet 24” were erroneous.

¶ 26. Special Verdict Sheet 23 reads as follows: “We the jury find from a preponderance of the evidence that Shenandoah Clark has proven by a preponderance of the evidence that his injuries were the proximate cause of the negligence of the Defendants.” Likewise, Special Verdict Sheet 24 reads: ‘We the jury find that Christie Johnston [Clark] proved by a preponderance of the evidence that her injuries were caused by the negligence of the Defendants.” Underneath each of the aforementioned sentences was a line where the jury was to mark ‘Tes” or “No.” The jury marked “No” on both forms.

¶ 27. Clark’s estate argues that the failure to include the word “enhanced” on the jury-verdict sheets improperly caused the jury to believe that Toyota’s negligence was an “all-or-nothing determination,” compounded by the fact that Clark’s counsel indicated Clark knew he was responsible for the truck leaving the highway on the night of the accident. Clark’s estate claims inclusion of the word “enhanced” with regard to Clark’s injuries would have placed the question of Toyota’s liability more squarely in context with the issue of Toyota’s alleged negligence. We disagree.

¶28. First, while Clark’s estate complains it petitioned the circuit court to change the language in the jury-verdict sheets to no avail, the record reflects that the jury-verdict sheets were created and tendered by Clark’s counsel at the objection of Toyota. Had Clark wished to include the word “enhanced,” there was ample opportunity to provide for such before offering the jury-verdict sheets to the circuit court. A latent request by Clark to change the jury-verdict sheets they had already submitted to the circuit court does not constitute error on the part of the circuit judge. Indeed, we have previously addressed this exact issue in the context of criminal cases and have held that we “will not reverse for an error created by [a party’s] own instruction.” Carr v. State, 655 So.2d 824, 847 (Miss.1995) (citing Young v. State, 420 So.2d 1055, 1057-58 (Miss.1982)).

¶ 29. Additionally, the standard for our review is whether the jury-verdict sheets confused the jury when considering the sheets and jury instructions taken as a whole. Having reviewed the entirety of the jury instructions and jury-verdict sheets, we cannot say the failure of the circuit court to add the word “enhanced” to describe Clark’s injuries on two special verdict sheets was erroneous. The jury-verdict sheets were explicitly clear that the jurors were to determine whether Toyota was liable in any way for Clark’s injuries. The mere addition of the word “enhanced” when describing Clark’s injuries would have made no further clarification as to Toyota’s potential negligence. The jurors were aware Clark was responsible for driving the truck off the road. They were also aware Clark’s injuries occurred when the truck catapulted into the air, landed on its roof, and barrelrolled through a field. We cannot conclude the jury-verdict sheets at issue caused any confusion in the minds of the jurors as to the issues presented to them for determination. It was inextricably clear in the sheets that the jury was charged with deciding whether or not Clark met his burden of proof in demonstrating Toyota was liable for his injuries. The jury unequivocally stated Toyota was not at fault. This issue is meritless.

IV. Admission of Toyota’s Expert Witness and Refusal of Clark’s Rebuttal Witness

¶ 30. “The standard of review for the admission or suppression of evidence in Mississippi is abuse of discretion.” Troupe v. McAuley, 955 So.2d 848, 855 (¶ 19) (Miss.2007) (citation omitted). “The trial judge has the sound discretion to admit or refuse expert testimony; an abuse[-]of[-]discretion standard means the judge’s decision will stand unless the discretion he used is found to be arbitrary and clearly erroneous.” Id. at 856 (¶ 19).

¶ 31. Clark’s counsel filed a motion in limine to strike the testimony and challenge the admission of Toyota’s expert accident reconstructionist, Carr. Clark’s counsel alleged Carr failed to respond to certain questions asked of him and Carr’s opinion on accident reconstruction was inaccurate, speculative, and unreliable.

¶ 32. During Carr’s deposition, he produced videos of crash tests he had run on a truck similar to the truck in question. The crashes Carr mimicked were very similar to Clark’s accident with regard to testing the strength of the truck’s roof. Clark asserted Carr met with another Toyota expert at Carr’s home to review the videos in question. In his motion in limine, Clark objected to Carr’s failure to answer personal questions in his deposition regarding his home. Specifically, Clark asked Carr personal questions surrounding his ownership interests in the property in Santa Barbara, California, including the home’s address; Carr declined to answer.

¶ 33. Clark next questioned Carr’s methodologies used in his crash tests. One test Clark objected to in particular was designed to replicate the truck’s orientation with the ground at the moment of impact. The results gave Carr data with which to measure the energy that must have been present for the roof of the truck to have caved in the same way that occurred in Clark’s accident. The energy measurement produced allowed Carr to gauge the vertical drop the truck experienced when it descended from the air into the ground. In doing so, Toyota was able to describe to the jury exactly what had happened when the truck became airborne and crashed into the field. Toyota was further able to explain why the safety features required by the government, which were met and exceeded by Toyota, could not have been expected to protect Clark from injury in the accident due to the extreme circumstances of the crash. Essentially Carr’s test results provided scientific evidence of Toyota’s defense that the truck’s roof was not defective. Clark also objected to Carr’s second visit to the accident site, during which he conducted further tests to ensure his test results were accurate.

¶ 34. At trial, Clark asserted the aforementioned objections and used them as a basis to request that the circuit court exclude Carr as an expert witness under the theory that he did not meet Daubert requirements to testify as an expert in the area of accident reconstruction. Alternatively, Clark requested that if Carr were allowed to testify, the circuit court grant him permission to produce a rebuttal witness. After hearing oral arguments from counsel for Clark and Toyota, the circuit judge recessed to review the pleadings, motions, briefs, and other applicable documents. The circuit court then denied Clark’s motion to exclude Carr’s testimony and reserved ruling on Clark’s request to produce a rebuttal witness.

¶35. After Toyota rested its case-in-chief, Clark attempted to call Dr. Terence ■ Honikman to the stand as a rebuttal witness to Carr’s testimony. The circuit court determined that Dr. Honikman’s opinion as to Carr’s testimony had never been provided to Toyota, but Carr’s testimony had been provided to Clark well in advance of trial. Specifically, the circuit judge stated: “I’m concluding right now that it’s going to end, and the rebuttal witness will not be allowed[,] in that the court finds that any opinions should be disclosed to the other side, and if they were not disclosed prior to trial then the opinion will not be admissible.”

¶ 36. Mississippi Rule of Civil Procedure 26(b)(4) governs expert-witness discovery. Rule 26(b)(4)(A)© reads:

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.

Here, Toyota timely provided Clark with the facts and opinions, as well as summaries of the grounds for his opinions. The record also reflects Clark was provided with Carr’s complete written opinions about his findings in advance of Carr’s deposition and well before the discovery deadline and trial. Clark was given ample opportunity to question Carr as to his methodologies during the deposition, and again on the witness stand at trial.

¶ 37. Furthermore, the circuit court allowed an extensive Daubert analysis to be performed on Carr under oath prior to his testimony at trial. Therein, Carr discussed his extensive educational background, including his bachelor of science in mechanical engineering from Northwestern University and a masters of science in mechanical engineering from the University of Florida. Carr then explained his work history, which included sixteen years as an engineer at Ford Motor Company (Ford) designing various vehicle parts, including, but not limited to, body-mounting systems, crash-protection systems, driver-operative controls, steering controls, braking controls, hand controls, safety-belt systems, and power-train systems. Carr was also responsible for testing the vehicles and comparing the test results to Ford’s internal protocols and safety standards. This involved conducting crash tests, investigating crashes, reconstructing crashes, and then problem-solving for Ford in light of the results from the crash tests.

¶ 38. Eventually, Carr became responsible for “investigating crashes to determine whether or not there were defects present and [whether] Ford vehicles would require a recall action.” Carr was also in charge of “the certification of Ford vehicles to federal standards [and] safety standards around the world.” Carr later left Ford and became an independent consultant, opening his own business called Carr Engineering, Incorporated, which was still in existence at the time of the trial. His job at Carr Engineering varied. He testified he conducted failure analysis as an independent contractor, which involves “testing of vehicles, design consulting about vehicles, design about compliance to federal standards and doing tests to evaluate the vehicles in all those regards.” He further stated: “My business then and my business today has a substantial part of its investigation of crashes like this one where there’s litigation that’s been brought where there is a lawsuit pending.” Carr went on to describe his then-current job duties and was heavily questioned by attorneys for both Toyota and Clark.

¶ 39. Ultimately, we cannot conclude the circuit judge abused his discretion by allowing Carr to testify. Carr’s tests and methodologies were provided to Clark well in advance of trial and within the allotted time frame. Clark had more than enough time to question Carr thoroughly as to the science behind his tests and gather information to contest Carr’s claims at trial. Furthermore, after a thorough review of the record, it is evident that Carr was qualified to testify as to the accident in question and the truck’s performance in the accident.

¶ 40. Finally, with regard to Dr. Honikman, the record reflects Clark never indicated Dr. Honikman had an opinion contesting Carr’s methodologies and testing, particularly with respect to the energy-measurement test discussed above, pri- or to an attempt to call him as a rebuttal witness. The Mississippi Supreme Court has addressed the issue of a plaintiff attempting to call an expert as a rebuttal witnesses without advising the defendant of the expert’s opinions:

If the rules allowed the strategy [such as Clark’s attempt to call a rebuttal witness], we fail to see why plaintiffs would designate and disclose experts. Plaintiffs would be free to simply wait until trial, and then call undesignated experts to “rebut” the defendant’s casein-chief. The only protection from this tactic would be for a defendant not to offer any evidence in its case-in-chief.

Banks v. Hill, 978 So.2d 663, 666 (¶ 13) (Miss.2008) (footnote omitted). Accordingly, we find these issues are without merit.

Y. Toyota’s Closing Remarks

¶ 41. We review a circuit court’s admission or suppression of evidence under an abuse-of-discretion standard. Troupe, 955 So.2d at 855 (¶ 19) (citation omitted). Prior to the start of the trial, Clark filed a motion in limine to exclude all evidence and any mention of Clark’s use of alcohol and subsequent DUI charge on the night of the accident. The circuit judge ruled as follows:

[T]he court finds that the issue of the cause of them running off the road has been admitted to by the plaintiff. The court finds that the defendant would be entitled to a comparative[-]negligenee instruction as to how much liability the plaintiff would have for his own injuries. Then the question comes up as to whether or not the DUI or the alcohol is relevant to that comparative[-]negligence instruction. Being that the plaintiff has indicated that the plaintiff caused the vehicle to roll off the road, then certainly the jury would be able to consider that in placing any negligence on the plaintiff in terms of his own injuries. Therefore, the court finds that the DUI and the alcohol is [sic] not relevant to any issue in this case and will not be allowed.

¶ 42. No mention of Clark’s use of alcohol was made during the trial. However, facts such as Clark’s decision to drive to Tunica, Mississippi, late at night, and Clark’s driving the vehicle off of the road were acknowledged by both parties and pointed out to the jury. Later, in closing arguments, Toyota’s counsel made reference to Clark’s “bad choices,” “bad decisions,” and “bad judgment.” Toyota’s counsel said:

Unfortunately, Mr. Clark made some bad choices and some bad decisions on the night of July 11th and the early morning hours of July 12th, 2001. How do we know that[?] He decided to drive from Tupelo to Tunica very late at night. He was traveling on Highway 78 at about 90 miles an hour. We heard Kevin Knight tell us that in his deposition. It was after midnight, he approached the curve, he took his eyes off the road and took his hands off the wheel. Those were some bad decisions and unfortunately he could not control the consequences.

Later, Toyota’s counsel also stated: “We’re not here because of any bad judgment or bad decision made by Toyota.”

¶ 43. In its brief on appeal, Clark’s estate argues:

While defense counsel did not speak the world “alcohol” aloud in closing, counsel took every effort during trial to create an inference thereto. Particularly during closing, counsel opposite intentionally drew the-jur/s attention to aspects of the case that would suggest the use of alcohol and inferred alcohol was involved .... Counsel also repeatedly stressed lapses in time and Clark’s going out with his friend at the “pool hall.”

¶44. While we agree that Toyota’s counsel made reference to Clark’s attendance at the pool hall with his Mends, his driving to Tunica late at night, and his driving off the road, we disagree that in doing so Toyota’s counsel improperly made reference to Clark’s alcohol use. After a thorough review of the record, we cannot find any reference whatsoever during the entirety of the trial to Clark’s alcohol use. Having also scrutinized Toyota’s closing remarks, the statements made by Toyota that Clark alleges made an inference to his alcohol use were well "within the scope of permissible subject matter for a closing argument.

¶45. The facts that Clark attended a pool hall with friends and then drove, late at night and while speeding, to another town are just that — facts. Clark’s estate cannot expect Toyota to refrain from mentioning the facts describing events leading up to the accident. Furthermore, Toyota’s counsel immediately explained his reference to Clark’s “bad decisions.” He reminded the jury that it was Clark’s negligence, not Toyota’s, that drove the truck off the road and ultimately crashed it into the field. As stated by the circuit judge, Toyota had every legal right to emphasize to the jurors that Clark was contributorily negligent in that he caused the accident. To restrict Toyota from mentioning Clark’s “bad choice” to drive the truck off of the road would have been manifest error on the part of the circuit judge, as it was an essential element of Toyota’s defense. We cannot conclude that Toyota’s closing argument, or any statements made by Toyota during the trial, improperly referenced Clark’s alcohol use on the night of the accident. This issue is without merit.

VI. Cumulative Effect of the Circuit Court’s Decisions

¶ 46. Finally, Clark’s estate argues that even if we were to disagree that each individual alleged error warrants reversal, the cumulative effect of the alleged errors supports reversal and a new trial. We have found only one of Clark’s estate’s arguments to have merit, and we further found that it was harmless error. Consequently, we do not find any cumulative error that would necessitate a reversal. Additionally, having found the claims of Clark’s estate without merit, our ruling, therefore, is dispositive of Toyota’s issues on cross-appeal, and we decline to address them.

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

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


author: GRIFFIS, P.J., for the Court: RUSSELL, J.,

text:
    Steve Antonio ANTHONY, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01004-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2012.
    Rehearing Denied June 19, 2012.

      Leslie S. Lee, Jackson, Eric John Hes-sler, Mollie Marie McMillin, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   GRIFFIS, P.J., for the Court:

¶ 1. Steve Antonio Anthony was convicted in the Lauderdale County Circuit Court of the sale of cocaine under Mississippi Code Annotated section 41-29-139 (Supp. 2011). Anthony argues on appeal that: (1) the circuit court erred by excluding a non-party witness’s prior felony charges on cross-examination; (2) the circuit court erred in denying two peremptory challenges raised by the defense; and (3) the jury’s verdict is against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On December 4, 2009, Anthony was arrested for selling approximately 3.06 grams of cocaine to Arnold Brown, a confidential informant. The drug sale between Anthony and Brown took place on June 29, 2007.

¶ 3. Prior to the drug buy, Brown approached Agent Christopher Scott with the Meridian Police Department and the East Mississippi Task Force about working with the task force as a Cl. Brown contacted an individual known as “Pee Wee” who had cocaine he was willing to sell. Agent Scott began the operation to buy drugs through Brown from Pee Wee based on Brown’s information. Brown called Pee Wee on the orders of Agent Scott and set up a meeting place for the drug buy. Pee Wee agreed to meet Brown oh 16th Avenue and 16th Street in Meridian, Mississippi. Agent Scott testified that he did not record the conversation, but the phone call was made from their briefing location. At the trial, Brown testified that the man he knew as Pee Wee was Anthony.

¶ 4. Before the Cl went to the drug-buy location, the task force searched Brown thoroughly to make sure he did not have any weapons or contraband on him. Brown was then issued money from the official task-force fund. The department made copies of the serial numbers of each bill used in the buy. The task force wired Brown with an audio and video device, and he was wired with a transmitter so the surveillance agents could hear Brown during the buy. Brown’s vehicle was searched in its entirety to make sure that no drugs, contraband, or weapons of any type were present in his vehicle.

¶ 5. After Brown was thoroughly searched and wired, Brown gave the agents the specific route that he was going to take to the buy. Agent Scott testified that the agents tried to do a physical surveillance without being too close in proximity to the buy in order to ensure that Brown’s cover was not blown. Agent Scott further testified that Brown did not make any stops between the pre-buy meeting and the buy location. Brown testified that Anthony told him he had some “soft,” which is powder cocaine. Brown asked Anthony for the price of a gram of cocaine. Anthony told Brown a gram of cocaine was $100.

¶ 6. When Brown and Anthony were at the designated place for the buy, Brown testified that Anthony got in Brown’s car in order to make the exchange. During the exchange, Anthony got out of the vehicle before the close of the buy. Brown then followed Anthony out of the car and approached Anthony about buying some pills in order to get Anthony on video. After the buy, Brown immediately met with the agents who confiscated the cocaine that Brown had bought from Anthony. At the post-buy debriefing, the agents again searched Brown and his car. The agents also took Brown’s statement. The Mississippi Crime Lab determined that substance sold to Brown was 3.06 grams of cocaine.

¶ 7. The jury convicted Anthony on June 2, 2010, for sale of cocaine. Anthony was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007). The circuit court sentenced Anthony to sixty years in the custody of the Mississippi Department of Corrections without eligibility for probation or parole. Anthony was additionally ordered to pay a $5,000 fine.

ANALYSIS

1. Whether the circuit court erred by excluding a non-party witness’s pri- or felony charges on cross-examination.

¶ 8. Anthony argues the circuit court committed reversible error when it denied him the opportunity to confront Brown about his prior felony charges on cross-examination. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Wade v. State, 583 So.2d 965, 967 (Miss.1991). This Court “will not reverse the ruling of a circuit judge unless he abused his discretion and caused the accused to experience prejudice.” Pritchett v. State, 32 So.3d 545, 547 (¶ 8) (Miss.Ct.App.2010) (quoting Shearer v. State, 423 So.2d 824, 826 (Miss.1982)). To warrant reversal, an error in an evidentiary ruling by the trial court must have “the effect of denying the defendant a fundamentally fair trial.” Martin v. State, 726 So.2d 1210, 1214 (¶ 13) (Miss.Ct.App.1998).

¶ 9. Anthony sought to introduce: (1) Brown’s arrest for two counts of sale of a controlled substance and one count of contempt of child support from 2007, and (2) Brown’s arrest for one count possession of a controlled substance and one count abuse/neglect/exploitation of a vulnerable adult. Anthony argues that under Mississippi Rule of Evidence 609, the circuit court should have allowed him to cross-examine Brown on all of his prior arrests and convictions, rather than limiting the questions to Brown’s arrest for two counts of sale of a controlled substance in 2007. “The scope of cross-examination, although ordinarily broad, is within the sound judicial discretion of the trial court and such court possesses an inherent power to limit such examination to relevant factual issues.” Dozier v. State, 257 So.2d 857, 859 (Miss.1972).

¶ 10. Rule 609 states, in part, that:

(a) For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

¶ 11. The circuit court did not hinder the Anthony’s ability to present to the jury that Brown was “working-off” charges as a confidential informant. At trial, Anthony asked Brown the following questions:

Q: You certainly have broken the law before.
A: Yes.
Q: Have you ever been convicted of any felonies?
A: Yes.
Q: Mr. Brown, how is it that you became involved with MBN or the Lauderdale County Task Force?
A: I caught a sale — a pill charge.
Q: When you say you “caught a pill charge,” what do you mean?
A: I sold to someone and they — I got caught.
Q: You sold to another informant?
A: Yes, I guess, yes.
Q: Were you told, Hey, you can work this charge off, we can cut you a deal and let you go free or—
A: No. I went to them and asked them could I help myself.
Q: Why did you do that?
A: To keep from going to jail.
Q: And, obviously, you have done it so far?
A: Yes, sir.
Q: Okay. But you also got paid, didn’t you?
A: Yes, sir.

¶ 12. Anthony fully developed, before the jury, that Brown had previous felony convictions and drug charges. Further, Anthony cross-examined Brown about “working-off’ his drug charges by working with the drug task force. The jury heard testimony that Brown had cooperated with the police so he would not go to jail. Through the testimony presented at trial, the jury was made aware that Brown had a motive to work with the police and his previous felonies, specifically his arrest for two counts of sale of controlled substances in 2007.

¶ 13. The additional arrests that Anthony sought to introduce lacked evidence of convictions and relation to the drug task force. Rule 609 states, “evidence that a nonparty witness has been convicted of a crime shall be admitted.” M.R.E. 609(1)(A) (emphasis added). Anthony did not present any evidence to the circuit court that Brown had been convicted of the remaining charges as required by Rule 609. Further, Anthony failed to show the circuit court that the other arrests were related to Brown’s work with the drug task force. The circuit court properly excluded this evidence because an arrest without proof of conviction is inadmissible under Rule 609, and the non-drug related arrests were not relevant. The exclusion of evidence was not an abuse of the circuit court’s discretion.

¶ 14. Anthony also sought to introduce Brown’s conviction from 1993. The circuit court properly excluded the 1993 prior conviction because: (1) it was more than ten years old and not proven to be probative, and (2) Anthony did not provide the State with written notice of his intent to use this conviction. Rule 609(b) states:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

¶ 15. At the time of trial, Brown’s 1993 conviction was seventeen years old; accordingly, his conviction was subject to the time limits of Rule 609(b). Anthony failed to meet both requirements of Rule 609(b). First, Anthony did not provide the State with advance, written notice of his intent to introduce Brown’s 1993 conviction. Second, Anthony did not meet the threshold burden of showing the probative value of Brown’s prior conviction. Ross v. State, 22 So.3d 400, 410 (¶ 32) (Miss.Ct.App.2009).

¶ 16. Anthony’s only argument for the introduction of the 1993 conviction was to show motive and attack the witness’s credibility. If the party seeking to use the “antiquated conviction for impeachment purposes [does not] first demonstrate the probative value of the conviction by showing how the conviction suggests the witness is less than credible,” then “a trial court’s ruling to exclude evidence of a stale conviction will be upheld.” Vickers v. State, 994 So.2d 200, 217 (¶64) (Miss.Ct.App.2008) (internal citation omitted). Anthony failed to show how admitting the 1993 conviction was needed to attack Brown’s credibility. The jury was presented evidence that Brown was operating as a paid confidential informant and had previous felony convictions. Anthony did not state any additional reasons for the introduction of this conviction. Additionally, Anthony did not provide the State notice of his intent to use the seventeen-year-old conviction. This issue has no merit.

¶ 17. We also note, alternatively, that any error by the circuit court would be harmless because Anthony informed the jury that Brown’s motive to assist the police was to work-off his prior charges.

2. Whether the circuit court emd by denying two peremptory challenges raised by the defense.

¶ 18. Anthony argues that the circuit court erred in refusing to grant two peremptory challenges of potential jurors. This Court gives great deference to the trial court’s findings of whether or not a peremptory challenge was race neutral. Manning v. State, 765 So.2d 516, 519 (¶ 8) (Miss.2000). “Indeed, we will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence.” Thorson v. State, 721 So.2d 590, 593 (Miss.1998).

¶ 19. During voir dire, Anthony attempted to strike three jurors, and the State objected on the basis that all the strikes were against white jurors. The circuit court reviewed the three peremptory challenges. Anthony offered a list of race-neutral reasons for each strike. The following exchange took place:

Defense: D-l would be Number 2.
Court: All right.
Defense: D-2 is Number 8; and I would strike Number 17, D-3.
Court: All right. Three other acceptable jurors....
Prosecutor: Judge, the first thing I object to is his use of strikes. Those three strikes are all white individuals. I understand what he just said about Mr. May, Juror Number 2, but Mr. May answered no questions; Juror Number 8 answered no questions; Juror 17 answered no questions.
Defense: Maybe Mr. May didn’t answer any questions because he was sleeping. I didn’t want to wake him.
Court: What is the reason that you feel like Ms. Amy Mars is an inappropriate juror?
Defense: I don’t think she is acceptable for a drug case, Your Honor.
Court: What causes you to feel like that?
Defense: I have got to explain why I would cut a white female from a drug ease that didn’t answer any questions?
Court: I guess, yes, sir.
Defense: I didn’t like the color of her dress, Your Honor. It is my strike that Mr. Anthony and I have a right to make.
Prosecutor: If I may, I raise a reverse Batson objection because he exercised all of these strikes on white individuals, none of which had made any statement whatsoever during the trial. He may have a right to make strikes preemptively; however, he does not have the right to strike individuals from the jury panel on the basis of race or sex.
Prosecutor: I think it is clear, Judge, from the responses that [defense counsel] has given, first was he just didn’t think she would be an appropriate juror. If that is the case, Judge, then Batson has no meaning at all because anytime that — any attorney wanted to strike somebody, they would simply have to say, well, I don’t think that’s an appropriate juror. And then, the flippant comment that, I don’t like the color of her dress. I’m just curious to know if he knows what color of the dress she is wearing.
Court: The situation is, it is a serious issue, [defense counsel], when either the State or defense is striking jurors based on race issues. And when you strike only white jurors, then there becomes, I think, certainly a possibility of a Batson violation there because you are striking jurors because of their race. And that’s why I asked, is there a race neutral reason?
Defense: I think there are persons later in the jury pool who gave answers that I believe to be more suitable for trial.
Prosecutor: That’s an unacceptable reason, Judge.
Court: I agree with [the prosecutor]. Unless you can give me other than I would prefer to have someone else in the jury pool or I didn’t like the color of her dress than [sic] I will not allow you to use D-2.
Defense: I think that there are more appropriate jurors for the defense further down the line, Your Honor.
Court: All right. Then, on D-l, which you exercised against Mr. May I will allow that.
Court: As to the strikes on Ms. Mars and Mr. Gordon, I sustain the Batson objection there [sic] by the State; so they will remain on the panel.

¶ 20. The United States Supreme Court established a three-part test for a party to make out a prima facie case of purposeful discrimination in jury selection. Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The objecting party must show that:

(a) he is a member of a cognizable racial group;
(b) the non-objecting party exercised peremptory challenges to remove venire members of the defendant’s race; and
(c) these facts and any other relevant circumstances raise an inference that the non-objecting party used that practice to exclude the venire men from the petit jury on account of their race.

See id. at 96,106 S.Ct. 1712.

¶21. Once the objecting party does so, the non-objecting party is then required to provide a race-neutral reason for exercising the challenge. Id. at 97,106 S.Ct. 1712. The court may accept the reasons given and allow the challenge. Whether an objecting party has presented a prima facie case is a determination of fact, and the trial judge is afforded great discretion in evaluating whether the objecting party has met this burden. Thorson, 721 So.2d at 593 (¶ 4). However, once a party “has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Chamberlin v. State, 989 So.2d 320, 339 (¶ 66) (Miss.2008) (citation omitted).

¶ 22. The State made a prima facie case that the peremptory challenges were based on race, as all three strikes were made against members of the same race. The circuit court found that the reasons for two peremptory challenges offered by defense counsel were not race neutral. The race-neutral reasons offered included not liking the color of one juror’s dress and potential better jurors further down the line. This Court gives great deference to a trial court’s finding of whether or not a peremptory challenge was race-neutral. Manning, 765 So.2d at 519 (¶ 8). Here, we find that the circuit court did not err by finding that the defense used peremptory challenges to strike jurors based on their race. The evidence from the record supports the circuit court’s ruling. This issue is without merit.

3. Whether the verdict is against the overwhelming weight of the evidence.

¶ 23. Finally, Anthony argues that the jury’s verdict is against the overwhelming weight of the evidence. Specifically, he argues that the only direct evidence tying him to the crime was Brown’s testimony. He further argues that a paid confidential informant is an inherently unreliable witness, and a paid confidential informant’s testimony should not suffice for conviction.

¶ 24. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 845 (¶18) (Miss.2005). The evidence is weighed in the light most favorable to the verdict. Id. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id. “This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

¶ 25. Anthony’s argument that the testimony of a paid confidential informant cannot sustain a conviction is not supported by Mississippi law. In Boles v. State, 744 So.2d 349 (Miss.Ct.App.1999), this Court affirmed the defendant’s conviction, which was obtained in large part due to the testimony of a paid confidential informant. We stated:

The fact that the confidential informant was being paid for his services is certainly a matter that the jury may consider in weighing what credibility to assign to the informant’s testimony, but that fact does not necessarily render the informant’s testimony inherently unbelievable .... The jurors, sitting as finders of fact, are charged with the responsibility of listening to all the evidence, including impeachment evidence that might affect a particular witness’s credibility, and then determining what weight and worth to assign to the evidence. McClain v. State, 625 So.2d 774, 781 (Miss.1993).

Id. at 351 (¶ 8). Here, the fact that Brown was a paid informant “working-off’ a charge was revealed through Brown’s testimony and the testimony of the two agents. The jury was fully aware that Brown was a confidential informant for the agents. In spite of this fact, the jury chose to find Brown’s testimony to be reliable. This Court is not persuaded that it should disturb the jury’s factual findings.

¶ 26. We do not find that the verdict is against the overwhelming weight of the evidence. This issue is without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF SIXTY YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION AND TO PAY A FINE $5000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDER-DALE COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ISHEE, J. FAIR, J., NOT PARTICIPATING.

RUSSELL, J.,

dissenting:

¶ 28. The majority finds that the trial court properly denied Steve Anthony’s right to cross-examine fully Arnold Brown, the confidential informant (Cl). I disagree; therefore, I respectfully dissent.

¶29. At trial, Anthony’s counsel attempted to cross-examine Brown regarding his recent charges of (1) two counts of sale of a controlled substance, (2) one count of contempt of child support, (3) one count of abuse and neglect of a vulnerable adult, and (4) one count of possession of a controlled substance. Although Anthony’s counsel learned of Brown’s arrests from the discovery provided by the State, the trial judge stated that he was “not going to allow [Anthony’s counsel] to just fish around ... and slander [Brown’s] reputation without any proof of it.” Under Mississippi Rule of Evidence 609, the trial judge limited the defense’s cross-examination regarding Brown prior arrests to only the drug charge that was the impetus for Brown seeking to work as a Cl.

¶ 30. Rule 609 does not control whether Brown’s pending charges and the resulting favorable treatment he received on those charges are proper subjects for cross-examination. In this case, the trial court failed to consider that our constitutional and evidentiary rules secure a defendant’s right to broad and extensive cross-examination on relevant matters. U.S. Const. amend. VI; Miss. Const. art. 3, § 26; M.R.E. 611. A witness on cross-examination may be questioned as to his interest in a case. The Mississippi Supreme Court explained that “[ejvidence that a material witness has received favored treatment at the hands of law enforcement authorities, particularly where that witness is himself subject to prosecution, is probative of the witnesses] interest or bias and may be developed through cross-examination or otherwise presented to the jury.” Suan v. State, 511 So.2d 144, 147-48 (Miss.1987).

¶ 31. The trial court may limit cross-examination to serve one of the purposes stated in Rule 611. But the supreme court has concluded that “[a] criminal defendant is afforded greater protection than the prosecution via the Fifth and Sixth Amendments.[to the United States Constitution]” White v. State, 785 So.2d 1059, 1062 (¶ 9) (Miss.2001). The supreme court further stated that “[t]o deny the accused the right to explore fully the credibility of a witness testifying against him, is to deny him the constitutional right of a full confrontation.” Id. at 1063 (¶ 12). The right to confrontation “extends to and includes the right to fully cross-examine the witness on every material point relating to the issue to be determined that would have a bearing on the credibility of the witness and the weight and worth of his testimony.” Young v. State, 731 So.2d 1145, 1151 (¶ 38) (Miss.1999) (citation omitted). See also M.R.E. 607, 616.

¶ 32. In limiting Anthony’s right to cross-examine Brown fully, the trial court also denied Anthony the opportunity to explore the full extent of the favorable treatment Brown had received on his prior charges in exchange for his testimony — a material point that affected Brown’s credibility and interest as a witness. This information, coupled with the fact that at least one charge had already been ordered nolle prosequi, was certainly relevant to show that Brown had an incentive to cooperate with the task force and the State in order to “work off’ the charges against him. The jury should have heard in-depth testimony about the details of the deals between Brown and the State. Therefore, the trial court erred in limiting Anthony’s cross-examination of Brown.

¶ 33. This error, however, was amplified by two additional factors. First, the State’s case relied strongly on Brown’s testimony; and second, the trial court refused Anthony’s requested cautionary jury instruction on a Cl’s testimony. See, e.g., White v. State, 722 So.2d 1242, 1247-48 (¶¶ 30-35) (Miss.1998) (Conviction of sale of cocaine was affirmed where defendant failed to request a cautionary jury instruction on a Cl’s testimony, but the defendant had an opportunity to cross-examine the Cl on favorable treatment from State, and other evidence corroborated the Cl’s testimony.) This Court has held previously that an improper limit on cross-examination, like the one imposed by the trial court here, is reversible error. See Davis v. State, 970 So.2d 164, 167 (¶ 7) (Miss.Ct.App.2006) (“To deny a defendant the right to fully cross-examine a witness on the issue of credibility is to deny the defendant his federal and state constitutional rights of confrontation.”).

¶ 34. Based on the discussion above, I would reverse Anthony’s judgment of conviction and remand this ease for a new trial.

ISHEE, J., JOINS THIS OPINION.