author: BARNES, J., RUSSELL, J.,

text:
    Willie Mack PIERCE, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01950-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.
    Rehearing Denied Nov. 27, 2012.
    Certiorari Denied Feb. 21, 2013.

      Robert E. Evans, Monticello, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Willie Mack Pierce, Jr. was convicted in the Jefferson Davis County Circuit Court of murdering his brother-in-law and was sentenced to life imprisonment. After denial of his post-trial motions, Pierce filed this appeal. Finding no reversible error, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. The evidence leaves no doubt that Silas Upton Jr. was shot and killed by a shotgun blast to the chest at close range as he sat in his lounge chair at home. Pierce did not testify in his own defense, but it was generally agreed that there was no animosity between Upton and Pierce. Although he did not confess to killing Upton, Pierce told his family and friends that he “had killed an innocent man” and “was in the wrong.” The forensic evidence shows that Upton was killed by three pellets from a shotgun; Pierce had a 12-gauge shotgun and shells with him when he was arrested.

¶ 8. Upton was married to Nita Upton, who was the twin sister of Pierce’s wife, Meta Pierce. There apparently were problems in the Pierce marriage, as Meta had moved her belongings to the Upton home about eight miles outside of Prentiss, Mississippi. Meta had been staying with the Uptons for about a week prior to the shooting. On August 11, 2007, Pierce showed up at the Upton home. The two sisters were not at home, as they had gone shopping at Walmart in Columbia until about 6 p.m. When they returned, they found all the doors locked. Neither sister had a key. Nita testified that she went around the home and looked into the den window. She said all the lights were out, but by the light of the television, she saw her husband lying flat in his recliner with one foot in the chair and the other on the floor. She called to him, but he did not move. She then walked to her son Charles Upton’s home nearby and got him to come unlock the door. Charles opened the door and went into the living room, where he found his father in the lounge chair. He was not moving, and Charles thought he was sleeping, that is, until Charles saw “blood all over the floor” and on his father’s chest, and observed his father was not breathing. Meta called 911. The three then waited outside for the police to arrive.

¶ 4. Darryl Perkins of the Mississippi State Highway Patrol responded to the call at 10:30 p.m. Local law enforcement personnel were already at the scene and had developed Pierce as the prime suspect. Pierce was not at his home. Upton’s house, truck, and shop keys were missing, along with his truck.

¶ 5. To assist in locating Pierce, the authorities had Pierce’s younger brother, Gary, call Pierce on his cell phone. Gary talked to Pierce several times, and the thrust of their conversations was that Pierce had received a “Dear John” letter from Meta that “had messed his mind up.” Pierce told Gary that he had gone to Upton’s house to commit suicide in front of his wife. He told Gary that when he had seen Meta’s car at the Uptons, he had gotten mad because he did not want the sisters together. Gary said his brother told him he had gotten madder when he entered the Upton’s home and found Meta’s belongings there. Pierce said that he and Upton “had words and he shot the man.” Gary said Pierce told him that after he had shot Upton, he went to the hospital where Meta worked as a nurse and waited for her.

¶ 6. While he was being sought by authorities, Pierce visited two friends in the area. Judy Speights of Silver Creek, Mississippi, testified that she, Pierce, and her husband had all been in rehab together and were “very good friends.” Pierce walked into her yard and told her there had been an accident in which he had shot his brother-in-law. Speights said that Pierce did not tell her about any words or fighting between Upton and himself. Pierce had brought Speights and her husband a handwritten will, which they witnessed. During their conversation, Pierce told Speights that he had shot the man with a 12-gauge shotgun. Pierce left driving a new model black Nissan Frontier rather than the older model truck he usually drove.

¶ 7. Upton’s house, truck, and shop keys were later recovered in his truck, which the police found in Hammond, Louisiana, where Pierce had left it when he had rented the Nissan truck. Pierce was ultimately found at a motel in Mobile, Alabama. Pierce had a loaded semi-automatic pistol and some shotgun shells in his pocket, and a knife. A search of the Nissan truck turned up a 12-gauge shotgun, four 12-gauge shells, and a notebook in which Pierce had written random thoughts about his marital situation, Meta, and the murder. He wrote the following: “I will not hurt Nita or any of the rest of you. I give you my word on it, Meta, you know what that means to me. Si [Upton] would still be alive if you had kept yours. Cheap shot, but true. Believe it or not I’m mourning Si too and I wish I could undo it.”

¶ 8. At trial, the forensic evidence showed that Upton died as a result of three buckshot wounds to his chest, which penetrated his heart and lungs. The forensic pathologist testified that the victim had been shot from seven to nine feet away, which produced a wound that caused him to die of massive blood loss. The pathologist said that based upon the angles of the buckshot trajectory in Upton’s body, the physical evidence was consistent with the shooter standing and the victim leaning back or reclining in a chair when he was shot. There were no defensive wounds on Upton’s body. The only thing amiss in the room was that a lamp was overturned. The shotgun pellets removed from Upton were identified at trial by a crime laboratory specialist as 10- to 12-gauge shots. As previously noted, the police recovered a 12-gauge shotgun and four shells from Pierce’s truck when he was arrested.

¶ 9. After receiving his Miranda rights, Pierce refused to give a statement because “he did not want to relive the situation again,” but he did tell the officers that he had a notebook in his truck. He also informed the officers “that if he had to do it over again, he would have been the last one he would have killed.”

ANALYSIS

¶ 10. Pierce’s sole argument on appeal is that the trial court erred in not allowing the jury to consider a heat-of-passion manslaughter instruction. The judge found no evidence to support such an instruction. We agree.

¶ 11. The standard of review for a claim that a defendant was entitled to a lesser-included-offense instruction is de novo, as this is a question of law. Anderson v. State, 79 So.3d 501, 505 (¶ 16) (Miss.2012) (citing Downs v. State, 962 So.2d 1255, 1258 (¶ 10) (Miss.2007)). A lesser-included-offense instruction should be granted unless the trial court, and ultimately the appellate court, can say:

[Tjaking the evidence in the light most favorable to the accused, and considering all reasonable inferences which may be drawn in favor of the accused from the evidence, ... no reasonable jury could find the defendant guilty of the lesser included offense and conversely not guilty of at least one essential element of the principal offense.

Graham v. State, 582 So.2d 1014, 1017 (Miss.1991) (quoting Gates v. State, 484 So.2d 1002, 1004 (Miss.1986)). However, “[t]he evidence must warrant an instruction on the lesser-included offense before it can be granted.” Id. (citing Stevens v. State, 458 So.2d 726, 731 (Miss.1984)).

¶ 12. Manslaughter is defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.... ” Miss.Code Ann. § 97-3-35 (Rev.2006). The Mississippi Supreme Court has defined “heat of passion” as “passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.” Anderson, 79 So.3d at 506 (¶ 18) (quoting McCune v. State, 989 So.2d 310, 319 (¶15) (Miss.2008)). However, the supreme court has stated that “words alone and disagreements among people are not enough to invoke the passion required for this defense.” Phillips v. State, 794 So.2d 1034, 1037 (¶ 10) (Miss.2001). “[M]ere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.” Anderson, 79 So.3d at 506 (¶ 18) (quoting Phillips, 794 So.2d at 1037 (¶ 10)).

¶ 13. Pierce claims that he was in the heat of passion after receiving a “Dear John” letter from his wife. He states he was despondent and suicidal when he arrived at the Upton home. His passion was heightened when he saw his wife’s belongings there, so he had “words” with his brother-in-law. Pierce contends that his mental state combined with the “words” he had with Upton amounted to the heat of passion necessary to allow the giving of a manslaughter instruction. We, however, disagree.

¶ 14. We fail to find evidence in the record to show Pierce shot Upton in the heat of passion. There is no evidence that Pierce’s passion or anger was suddenly aroused by provocation. What the evidence does show is that Silas was sitting in his lounge chair in his home when he was shot at close range by a shotgun. In a writing to his wife Meta in his notebook, Pierce said that Upton would still be alive if Meta had not mistreated him. He said that he wished he “could undo it” because “believe it or not he was mourning [Upton] too.”

¶ 15. The testimony on the subject of Pierce’s mental state was supplied by his little brother Gary’s characterization of his psyche derived from cell phone calls in which Pierce allegedly told him he was suicidal. The “Dear John” letter Pierce claimed provoked his “violent and uncontrollable rage” was only a statement Pierce made to Gary. No letter was introduced into evidence, and the fact of its existence was not proven. Further, the only proof that Upton did anything but sit in his lounge chair was again limited to Pierce’s phone conversations with Gary. Furthermore, even if there had been some evidence that Pierce and Upton had “words,” mere words or disagreements, no matter how provocative, are not enough to reduce murder to manslaughter. See Anderson, 79 So.3d at 506 (¶ 18).

¶ 16. It is well established that a judge may deny a jury instruction when there is not evidence to support it. Neese v. State, 993 So.2d 837, 851 (¶ 33) (Miss.Ct.App.2008) (citing Terry v. State, 718 So.2d 1115, 1125 (¶ 48) (Miss.1998)). Accordingly, we find no error in the trial court’s failure to give a heat-of-passion jury instruction, and affirm Pierce’s conviction and sentence.

1117. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

RUSSELL, J.,

dissenting:

¶ 18. The majority finds that the circuit court properly denied Pierce’s request for a manslaughter jury instruction. In my view, the manslaughter jury instruction should have been given because there was sufficient evidence for a jury to find that Pierce committed the lesser offense of manslaughter. Therefore, I dissent.

¶ 19. “A defendant is entitled to have jury instructions given which present his theory of the case.” Jones v. State, 64 So.3d 1033, 1036 (¶ 12) (Miss.Ct.App.2011) (quoting White v. State, 842 So.2d 565, 575 (¶ 30) (Miss.2003)). A court may refuse a jury instruction that “incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. (quoting White, 842 So.2d at 575 (¶ 30)). A defendant may “request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment.” Brown v. State, 19 So.3d 85, 94 (¶ 26) (Miss.Ct.App.2008) (quoting Gangl v. State, 539 So.2d 132, 136 (Miss.1989)).

¶ 20. A criminal defendant is entitled to a jury instruction that presents his theory of the case even when “the evidence that supports it is weak, inconsistent, or of doubtful credibility.” Banyard v. State, 47 So.3d 676, 682 (1117) (Miss.2010) (citing Ellis v. State, 778 So.2d 114, 118 (¶15) (Miss.2000)). “[A] lesser-offense instruction should only be granted by the trial judge when an evidentiary basis exists in the record to support such an instruction.” Brown, 19 So.3d at 94 (¶ 26) (citing Gangl, 539 So.2d at 136). Further, “[a] lesser-included offense instruction should be granted unless the trial judge can say that no reasonable jury could find the defendant guilty of the lesser offense after taking all evidence in the light most favorable to the accused.” Id. (citing Giles v. State, 650 So.2d 846, 854 (Miss.1995)). “Thus, if any evidence is found in the record that could support the finding of the lesser offense, the trial judge should give the lesser-included offense instruction, but if the instruction is not supported by the evidence, the instruction should be excluded.” Id. (citing Perry v. State, 637 So.2d 871, 877 (Miss.1994)) (emphasis added).

¶21. In the instant case, there was evidence that could support a guilty verdict on the lesser offense of heat-of-passion manslaughter, namely: (1) the “Dear John” letter from Pierce’s wife; (2) Pierce’s seeing his wife’s vehicle at the home of the victim; (3) Pierce’s seeing his wife’s belongings at the home of the victim; and (4) Pierce’s exchanging words with the victim. Once again, if “any evidence is found in the record that could support the finding of the lesser offense, the trial judge should give the lesser-included offense instruction!;.]” Id. (emphasis added). Considering the evidence in the light most favorable to Pierce, this evidence — especially considered as a whole — is more than sufficient to support a lesser-ineluded-offense instruction. Therefore, I would reverse Pierce’s conviction and remand for a new trial.


source: Caselaw Access Project

author: RUSSELL, J„

license: Public Domain

text:
    Tytus WILLIAMS a/k/a Tytus D. Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-00458-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.
    Rehearing Denied Dec. 4, 2012.
    Certiorari Denied Feb. 21, 2013.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   RUSSELL, J„

for the Court:

¶ 1. Tytus Williams appeals the Hinds County Circuit Court’s order denying his motion for post-conviction relief (PCR). Williams raises three issues for review, which we restate for clarity: (1) whether the circuit court erred in denying his PCR motion without an evidentiary hearing; (2) whether the circuit court erred in denying his PCR motion without informing him of the minimum sentence for manslaughter; and (3) whether he received ineffective assistance of counsel. Finding no reversible error, we affirm the circuit court’s denial of Williams’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶2. Williams was indicted for capital murder and waived indictment for armed robbery. He pleaded guilty to a reduced charge of manslaughter and armed robbery. On March 13, 2007, Williams received a twenty-year sentence for the manslaughter conviction and a twenty-year sentence for the armed-robbery conviction, with the sentences running concurrently. On August 27, 2009, Williams filed his PCR motion, asserting that his attorney: (1)pressured him to plead guilty to both charges; (2) misled him into thinking he was pleading guilty to aiding and abetting, with a five-year sentence, instead of pleading guilty to manslaughter; and (3) failed to inform him that by pleading guilty to armed robbery, he was waiving an indictment by a grand jury. Without a hearing, on October 27, 2009, the circuit court entered an order denying Williams’s PCR motion. On September 18, 2010, Williams filed a motion for an out-of-time appeal. On March 4, 2011, Williams filed a notice of appeal.

DISCUSSION

¶ 3. This Court “will not disturb a [trial] court’s denial of a [PCR motion] unless it is clearly erroneous.” Johnson v. State, 80 So.3d 136, 138 (¶ 5) (Miss.2012) (citing Owens v. State, 17 So.3d 628, 632 (¶ 7) (Miss.Ct.App.2009)). “However, when questions of law are raised, the standard of review is de novo.” Id.

¶ 4. Although the timeliness of Williams’s motion for an out-of-time appeal was not raised by either party, we must address this issue on our own initiative. “Mississippi Rule of Appellate Procedure 4(a) provides that an appeal shall be filed within thirty days of the date of entry of the judgement being appealed from.” Moore v. State, 8 So.3d 262, 263 (¶ 7) (Miss.Ct.App.2009). “Rule 4(h) gives the trial court the authority to re-open the time for an appeal in the event that a party did not receive notice of the entry of judgment.” Id. (citing M.R.A.P. 4(h)). However, a circuit court does not have the authority to grant an out-of-time appeal later than 180 days after the entry of judgment. Id. at 264 (¶ 12).

¶5. The circuit court denied Williams’s PCR motion on October 27, 2009, and Williams failed to appeal this judgment within thirty days. On September 13, 2010, Williams filed a motion for an out-of-time appeal on the ground that he did not receive a copy of the order denying his PCR motion. The State did not oppose, and the circuit court granted Williams’s motion for an out-of-time appeal. We find that the circuit court lacked the authority to grant Williams’s motion for an out-of-time appeal because Williams’s motion was filed more than 180 days after the denial of his PCR motion. However, “Mississippi Rule of Appellate Procedure 2(c) allows this Court to suspend the thirty-day requirement of Rule 4(a) for good cause shown.” Id. at (¶ 9); see McGruder v. State, 886 So.2d 1, 2 (¶ 4) (Miss.2003); Jefferson v. State, 958 So.2d 1276, 1278 (¶ 6) (Miss.Ct.App.2007). “Post-conviction relief proceedings are governed by the rules controlling criminal appeals.” Miss.Code Ann. § 99-39-25(1) (Supp.2011); Williams v. State, 456 So.2d 1042, 1043 (Miss.1984). “This Court has held that ‘the appellate courts do have the authority to grant a criminal defendant such an appeal if failure to perfect the appeal was “through no fault of his own” and if “justice demands.” ’ ” Id. (quoting Parker v. State, 921 So.2d 397, 399 (¶ 5) (Miss.Ct.App.2006)). Because Williams did not receive a copy of the order denying his PCR motion through no fault of his own, we suspend the Rule 4(a) requirements in the interest of justice.

I. Whether the circuit court erred in denying Williams’s PCR motion without an evidentiary hearing.

¶ 6. Williams argues that the circuit court erred in denying his PCR motion without holding an evidentiary hearing. He further argues that by attaching the affidavit of his father, Garvin Williams, to his PCR motion, he raised a claim sufficient to entitle him to a hearing. We disagree.

¶7. “A trial court enjoys wide discretion in determining whether to grant an evidentiary hearing.” Williams v. State, 4 So.3d 388, 392 (¶ 11) (Miss.Ct.App.2009) (citing Hebert v. State, 864 So.2d 1041, 1045 (¶ 11) (Miss.Ct.App.2004)). “Not every motion for post-conviction relief ... must be afforded a full adversarial hearing.” Hebert v. State, 864 So.2d 1041, 1045 (¶ 11) (Miss.Ct.App.2004) (citing Jones v. State, 795 So.2d 589, 590 (If 3) (Miss.Ct.App.2001)). If the factual basis for relief is established solely by uncorroborated assertions of the movant and those assertions are contradicted by the face of the record, the court may dismiss the motion without a hearing. Young v. State, 731 So.2d 1120, 1123 (¶ 12) (Miss.1999) (citing Marshall v. State, 680 So.2d 794, 795 (Miss.1996)). “This is not to say that an evidentiary hearing is to be ordered every time there are contradictory affidavits.” Wright v. State, 577 So.2d 387, 390 (Miss.1991).

¶8. In Hoyt v. State, 952 So.2d 1016, 1022 (1120) (Miss.Ct.App.2007), Hoyt argued that by attaching the affidavits of his mother and niece to his PCR motion, he raised a claim sufficient to entitle him to an evidentiary hearing. Both this Court and our supreme court have held that “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the af-fiant to the contrary[,] to the extent that the court can conclude that the affidavit is a sham[,] no hearing is required.” Id. at 1022 (¶ 22) (quoting Sandifer v. State, 799 So.2d 914, 917 (¶8) (Miss.Ct.App.2001)). Our supreme court has explicitly held supporting affidavits to be a “sham” when belied by the record. Id. at 1023 (¶23); see also Kirksey v. State, 728 So.2d 565, 568 (¶ 12) (Miss.1999) (holding no eviden-tiary hearing was required where the affidavits of the defendant and his wife were directly contradicted by the defendant’s sworn testimony during the plea hearing). This Court found that Hoyt’s claims were contradicted by his previously sworn statements in the record. Hoyt, 952 So.2d at 1023 (¶ 22). Although Hoyt provided affidavits of his mother and niece, the affidavits only supported his claim and offered no substantiation for his assertions. Id. at 1022 (¶22). Therefore, we held that the circuit court properly dismissed Hoyt’s claims without an evidentiary hearing. Id. at 1023 (¶ 23).

¶ 9. Similarly, Williams argues that by attaching the affidavit of his father to his PCR motion, he raised a claim sufficient to entitle him to an evidentiary hearing. Like Hoyt, Williams’s claims were contradicted by his previously sworn statements in the record. Williams claimed that his attorney: (1) pressured him to plead guilty to both charges; (2) misled him into thinking he was pleading guilty to aiding and abetting with a five-year sentence instead of pleading guilty to manslaughter; and (3) failed to inform him that by pleading guilty to armed robbery, he was waiving an indictment by a grand jury. But at his plea hearing, Williams acknowledged that he was entering a plea of guilty to manslaughter and to armed robbery. He acknowledged the maximum and recommended sentences for manslaughter as well as the maximum, minimum, and recommended sentences for armed robbery. Williams further acknowledged that by pleading guilty, he was waiving an indictment by a grand jury. When asked if he was satisfied with the services of his attorney, he answered affirmatively. Finally, Williams acknowledged that no one had threatened or coerced him, used force or threats of force, or made any promises to get him to plead guilty. While Williams attached an affidavit to his PCR motion, like the mov-ants in Hoyt and Kirksey, his father’s affidavit merely provided support but offered no substantiation for Williams’s assertions. The affidavit merely repeated Williams’s assertions in his PCR motion, which were contradicted by his statements in the record. For these reasons, this issue is without merit.

II. Whether the circuit court erred in denying Williams’s PCR motion without informing him of the minimum sentence for manslaughter.

¶ 10. Williams argues that the circuit court erred in denying his PCR motion without informing him of the minimum sentence for manslaughter. We disagree.

¶ 11. “Automatic invalidation of a guilty plea where the defendant was not informed of the minimum penalty is no longer the rule in Mississippi.” Garner v. State, 928 So.2d 911, 914 (117) (Miss.Ct.App.2006) (citing Ashby v. State, 695 So.2d 589, 591 (Miss.1997)). In Garner, 928 So.2d at 913-14 (¶ 6), Garner argued that his guilty plea should have been vacated because he was not advised of the . minimum sentence for his crime, and that if he had been aware, he would not have pleaded guilty. This Court held: “[T]o reverse on this issue, Garner must show that he was misled, that the case was misrepresented to him, or that he expected to receive a lesser sentence.” Id. at 914 (¶ 7) (citing Ashby, 695 So.2d at 593). But the record indicated that Garner clearly understood that the State would recommend a sentence of twenty years, and the trial judge could sentence him to a term “reasonably less than life.” Id. at (¶ 8). Therefore, this Court held that any error in failing to advise Garner of the minimum sentence was harmless. Id.

¶ 12. Similarly, the record reflects that Williams acknowledged the maximum twenty-year sentence for manslaughter, the minimum and maximum sentences for armed robbery, and the twenty-year recommended sentences by the State. While Williams may have hoped for an opportunity to plead guilty to aiding and abetting, the record does not provide any basis for any such expectation. Instead, the record reflects that Williams admitted that he was guilty of murder and armed robbery. Thus, any error in failing to advise Williams of the minimum sentence for manslaughter was harmless.

III. Whether Williams received ineffective assistance of counsel.

¶ 13. Williams argues that he received ineffective assistance of counsel because his attorney allegedly: (1) pressured him to plead guilty to both charges; (2) misled him into thinking he was pleading guilty to aiding and abetting, with a five-year sentence, rather than manslaughter; and (3) did not inform him that by pleading guilty to armed robbery, he was waiving an indictment by a grand jury. We disagree.

¶ 14. To establish a claim of ineffective assistance of counsel, Williams must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our supreme court in Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984). He “must prove, under the totality of the circumstances, (1) that his counsel’s performance was deficient, and (2) that this deficiency deprived him of a fair trial.” Thomas v. State, 883 So.2d 1197, 1199 (¶ 12) (Miss.Ct.App.2004) (citing Jackson v. State, 815 So.2d 1196, 1200 (¶ 8) (Miss.2002)). Because Williams challenges his guilty plea, he must prove that, but for the ineffective assistance of counsel, he would not have pleaded guilty and insisted on a trial. Pleas v. State, 766 So.2d 41, 43 (¶ 7) (Miss.Ct.App.2000) (citing Bell v. State, 751 So.2d 1035, 1038 (¶ 14) (Miss.1999)).

¶ 15. Williams testified under oath at his plea hearing that he was satisfied with the services provided by his attorney. We note that “solemn declarations in open court carry a strong presumption of verity.” Thomas, 883 So.2d at 1199 (¶ 13) (quoting Brasington v. State, 760 So.2d 18, 24 (¶ 32) (Miss.Ct.App.1999)). Further “[a] trial court is entitled to place great weight upon a defendant’s initial plea under oath.” Id. (citing Templeton v. State, 725 So.2d 764, 767 (¶ 10) (Miss.1998)). Williams failed to present any evidence to support his claim that his prior sworn statements regarding his satisfaction with his attorney should be disregarded. See id. (holding that the defendant “failed to place before the trial court evidence of such weight as to establish that his prior sworn statement of satisfaction with his attorney should be disregarded”). Therefore, this claim is without merit.

CONCLUSION

¶ 16. Because the claims in Williams’s PCR motion are contradicted by the record and because his father’s affidavit does not offer substantiation for Williams’s assertions, we find no merit to Williams’s claim that the circuit court erred in denying his PCR motion without an evidentiary hearing. We also find the circuit court’s failure to inform Williams of the minimum sentence for manslaughter was harmless error. Finally, Williams’s claim of ineffective assistance of counsel is without merit, as Williams admitted under oath that he was satisfied with the services of his attorney. Therefore, we affirm the circuit court’s judgment.

¶ 17. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: FAIR, J.,

text:
    Bobby Leonard GRAY a/k/a Bobby L. Gray a/k/a Bobby Gray, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00755-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.
    Rehearing Denied Nov. 20, 2012.
    Certiorari Denied Feb. 21, 2013.

      Bobby Leonard Gray, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. In 1998, Bobby Gray was tried for sale of cocaine as a habitual offender. While the jury was deliberating, Gray excused himself to use the restroom and fled the jurisdiction. He was convicted in ab-sentia and sentenced, as a habitual offender, to sixty years imprisonment. While Gray was on the lam, he neglected to file a direct appeal from his conviction and sentence. Instead, Gray has filed a succession of post-conviction relief motions since his capture. Today we address what we believe is his sixth PCR motion, which we find procedurally barred and without merit.

STANDARD OF REVIEW

¶ 2. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2011). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is proee-durally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 3. ‘When reviewing a lower court’s decision to deny a petition for post conviction relief [an appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

¶4. Gray only raises one issue in his most recent PCR motion: he contends the jury was instructed it could find him guilty of selling, transferring, dispensing or delivering of cocaine when his indictment only alleged sale of cocaine.

¶ 5. Our first question is whether Gray’s claim is procedurally alive. We find that it is not — at least three procedural bars apply under the Uniform Post-Conviction Collateral Relief Act. First, the jury instruction could have been challenged on direct appeal, and since it was not, the issue was waived. As a direct appeal issue, it is res judicata and proee-durally barred in PCR proceedings. See Miss.Code Ann. § 99-39-21(1) (Rev.2007); Loden v. State, 43 So.3d 365, 388 (¶39) (Miss.2010) (“Rephrasing direct appeal issues for post-conviction purposes will not defeat the procedural bar of res judica-ta.”). Also, the circuit judge noted in his order dismissing Gray’s PCR that this specific claim about the jury instruction was raised in a prior PCR that was denied and never appealed. The second procedural bar is the successive writ; this is Gray’s sixth PCR motion. See Miss.Code Ann. § 99-39-5(2) (Supp.2011). Finally, the motion is time-barred, as the statute requires that a PCR motion be made within three years of the conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2011).

¶ 6. Gray contends that his fundamental constitutional rights were violated, rendering any procedural bars ineffective. We agree that “errors affecting fundamental constitutional rights are excepted from the procedural bars.” Rowland v. State, 42 So.3d 503, 506 (¶9) (Miss.2010). However, the mere assertion of a constitutional right violation is not sufficient. Means v. State, 43 So.3d 438, 442 (¶ 12) (Miss.2010). To overcome the procedural bars, Gray must give this Court good reason to believe his fundamental constitutional rights were violated, and he falls short.

¶7. Gray’s jury was instructed that it could convict if the proof showed he had sold, transferred, or otherwise dispensed or delivered cocaine. Gray argues that this expanded the allegation in the indictment, which was only that Gray had sold cocaine.

¶ 8. Errors in jury instruction are subject to a harmless error analysis. See, e.g., Neder v. United States, 527 U.S. 1, 8-10, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Kolberg v. State, 829 So.2d 29, 49-51 (¶¶ 39-40) (Miss.2002). The issue Gray has alleged hinges on the specific facts of his trial, but Gray has not made the trial record part of the record in this PCR. “The appellant bears the burden of presenting a record which is sufficient to un-dergird his assignment of error.” Williams v. State, 522 So.2d 201, 209 (Miss.1988). Gray has failed to show that the error, if any, was prejudicial.

¶ 9. Additionally, our review of prior reported decisions concerning Gray’s crime indicates there was never any question about whether Gray sold the drugs (as opposed to giving them away or otherwise transferring without selling):

A confidential informant, Brandy Edwards, testified at trial that she had purchased cocaine from Gray. The transaction was personally witnessed by Simone Reeves, a narcotics law enforcement officer, and it was videotaped.

Gray v. State, 841 So.2d 204, 205 (¶ 2) (Miss.Ct.App.2003). This strongly suggests that any error instructing the jury was harmless.

¶ 10. Gray’s PCR motion is procedurally barred and without merit.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.,

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ„ CONCUR. BARNES, J., CONCURS IN RESULT ONLY. ROBERTS, J., NOT PARTICIPATING.

      . While the trial court stated that six PCR motions had been filed, this is only the third time Gray has appealed a PCR denial or dismissal. The others are Gray v. State, 819 So.2d 542 (Miss.Ct.App.2001), and Gray v. State, 841 So.2d 204 (Miss.Ct.App.2003).


text:
    Christopher R. INGRAM a/k/a Christopher Ingram a/k/a Christopher Ray Ingram, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00548-COA.
    Court of Appeals of Mississippi.
    July 17, 2012.
    Rehearing Denied Nov. 27, 2012.
    Certiorari Denied Feb. 21, 2013.

      Christopher R. Ingram, appellant, pro se.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Christopher Ingram was indicted for the lustful touching of a child. He pled guilty in the Lauderdale County Circuit Court on December 7, 2007, and was sentenced to ten years imprisonment, with nine years and three hundred sixty-one days suspended. Ingram received credit for the four days he had served and was placed on post-release supervision for five years. Because of an unspecified disability, Ingram was unable to work, and his supervision fees were waived. On March 31, 2010, the circuit court revoked Ingram’s probation.

¶ 2. Ingram filed a timely motion for post-conviction relief (PCR) where he claimed he received ineffective assistance of counsel and that his plea was involuntary. The circuit court dismissed the motion without an evidentiary hearing, and Ingram appeals.

STANDARD OF REVIEW

¶ 3. The circuit court may dismiss a PCR motion without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2011). To succeed on appeal, the PCR movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is proeedurally alive. Young v. State, 781 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶ 4. When reviewing a circuit court’s denial of a PCR motion, its factual findings will not be disturbed unless they are clearly erroneous. Presley v. State, 48 So.3d 526, 528-29 (¶ 10) (Miss.2010). However, this Court reviews questions of law de novo. Id.

DISCUSSION

1. Validity of the Guilty Plea

¶ 5. Ingram claims he is mentally disabled due to post-traumatic stress disorder (PTSD) and did not understand the guilty-plea proceeding. He asserts that this renders his plea invalid.

¶ 6. A plea of guilty is not binding on a criminal defendant unless it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). “A plea is deemed ‘voluntary and intelligent’ only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). “Specifically, the defendant must be told that a guilty plea involves a waiver of the right to trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination.” Id. (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Ingram bears the burden of proving by a preponderance of the evidence that he is entitled to relief. See McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989).

¶ 7. Uniform Rule of Circuit and County Court 9.06 states: “If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination....”

¶ 8. The record reveals that Ingram was thirty-one at the time of the plea hearing, had completed the sixth grade, and had read the plea petition with the assistance of his wife and attorney. Ingram acknowledged that he understood the petition. The trial judge questioned Ingram, determined he was not under the influence of any alcohol or drugs, and informed him of the rights he would be waiving if he pled guilty instead of having a jury trial. Further, Ingram was informed of the State’s proof and sentencing recommendation and affirmed that he understood the recommendation. He stated that he had not been offered anything to plead guilty and had been informed of the maximum and minimum sentences that could be imposed. There is simply nothing in the record that indicates Ingram’s plea was not knowing and voluntary.

¶ 9. Ingram suggests the trial court should have inquired further into his competency because he was disabled and unable to work. But the record gives no indication that Ingram’s disability was due to some form of mental incapacity. His claims of PTSD are entirely unsupported in the record, and there is no proof that even if Ingram had PTSD, that it would have altered his ability to voluntarily plead guilty. Ingram stated that he was not under the influence of any drugs, did not mention any history of mental illness, and told the court repeatedly that he understood the implications of his guilty plea. He even offered to begin paying his court fees that day. He participated fully in the plea colloquy and responded appropriately to every question asked. There was no reason for the tidal court to believe Ingram was incompetent to stand trial.

2. Effectiveness of Counsel

¶ 10. Ingram also claims he received ineffective assistance of counsel. To prove ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A strong presumption exists that counsel’s performance falls within the range of reasonable professional assistance. Id. at 689. Overcoming that presumption requires showing a reasonable probability that but for counsel’s errors, the result of the trial would have been different. Id. at 694. A prisoner seeking post-conviction relief must “allege both prongs of the above test with specific detail.” Coleman v. State, 979 So.2d 731, 735 (¶ 15) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)).

¶ 11. First, Ingram states that his counsel was ineffective because he failed to bring Ingram’s mental defect to the trial court’s attention. This claim is without merit as we have noted above.

¶ 12. Ingram’s remaining claim is that his counsel was ineffective because he failed to investigate the facts of the case. The only support for this allegation is an affidavit Ingram executed himself. This affidavit merely restates his allegations in general terms and provides no supporting evidence.

¶ 13. A PCR movant must produce “more than conclusory allegations on a claim of ineffective assistance of counsel.” Carpenter v. State, 899 So.2d 916, 921 (¶ 23) (Miss.Ct.App.2005). Bare allegations are insufficient to prove ineffective assistance of counsel. Mayhan v. State, 26 So.3d 1072, 1076 (¶ 10) (Miss.Ct.App.2009).

¶ 14. Further, Ingram’s attorney was able to get Ingram’s entire sentence suspended and his supervision fees waived. Ingram was sentenced to ten years with nine years and three hundred sixty-one days suspended. As the trial judge said to Ingram: “[I]f you go to trial and you are found guilty it would be very unusual that you would be offered a deal where you didn’t have time to serve initially.” And Ingram’s counsel testified that he had gone over the petition with Ingram, explained the elements of his offense, any defenses he may have, and the penalties that could be imposed. The court then asked Ingram if he had any questions to which he replied, “no, sir.”

¶ 15. Our supreme court has held that a PCR movant may not rely solely on his own self-serving affidavit or otherwise unsupported allegations in his brief. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). And “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the af-fiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required.” Gable v. State, 748 So.2d 703, 705-06 (¶ 8) (Miss.1999).

¶ 16. We agree with the circuit court that Ingram’s claims of ineffective assistance of counsel are without merit.

¶ 17. THE JUDGMENT OF THE LAUDERDAJLE county circuit COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

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


author: ROBERTS, J., RUSSELL, J.,

text:
    Mary BARROW, individually and for the benefit of The Wrongful Death Heirs of Latisha Barrow and The Estate of Latisha Barrow, by and through Mary Barrow, Administratrix, Appellants v. Reul MAY, Jr., D.D.S., Appellee.
    No. 2010-CA-01504-COA.
    Court of Appeals of Mississippi.
    July 17, 2012.
    Rehearing Denied Dec. 4, 2012.
    Certiorari Denied Feb. 21, 2013.

      William W. Fulgham, attorney for appellants.
    John A. Banahan, Pascagoula, Jessica B. McNeel, attorneys for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the Hinds County Circuit Court’s grant of a directed verdict in a medical malpractice, wrongful death suit against Dr. Reul May Jr., an oral surgeon, brought by Mary Barrow (Barrow), the mother and legal representative for Latisha Barrow (Latisha), on behalf of herself, the heirs of Latisha, and Latisha’s estate. Immediately prior to granting Dr. May’s motion for a directed verdict, the circuit court granted Dr. May’s Daubert motion because the expert witness’s testimony on causation was speculative. Barrow filed a motion for a new trial on August 20, 2010, and the circuit court denied her motion on September 22, 2010.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2003, Latisha, at the age of nineteen, was diagnosed with severe congestive heart failure (CHF), an enlarged heart, and an abnormal enlargement of the liver. She was treated with medication and by cardiologists in Greenville and at the University of Mississippi Medical Center (UMMC), but her condition continued deteriorating. By 2006, Latisha was told she had end-stage CHF. Latisha suffered from the disease of idiopathic dilated cardiomyo-pathy, which results in an enlarged heart that does not pump properly. Idiopathic means spontaneous or arising from an unknown cause. As a result, the pumping of the heart gets weaker, the blood circulation slows, and the heart becomes too weak to circulate blood properly. In January of 2006, Dr. Charles Moore, a cardiologist at UMMC, urged Latisha to have an internal-cardiac defibrilator (ICD) implanted due to her high risk of sudden death. The ICD would provide an electric jolt to her heart if a potential deadly arrhythmia occurred. Latisha declined having the ICD implanted, citing cosmetic concerns. Her cardiologist in Greenville testified that Latisha’s mortality rate as of June 7, 2006, was fifty percent at six months and fifty percent at another six months. Needless to say, it was undisputed that in July 2006, Latisha was at a very high risk of sudden death due to arrhythmia related to her CHF.

¶ 3. On March 17, 2006, UMMC physicians evaluated Latisha about the efficacy of a heart transplant. Prior to being eligible for a heart transplant, Latisha would be required to have the ICD implanted and have her third molars, commonly known as “wisdom teeth,” removed. Latisha’s home-town dentist recommended Dr. May as an oral surgeon. Dr. May practices in an office setting and does not have surgical privileges at a hospital. During the consultation visit approximately twenty-two days prior to the procedure, Dr. May took a panorex x-ray of Latisha’s teeth and took her health history, including that she had CHF. Dr. May also noted that he would not go forward until he consulted with Dr. Moore, Latisha’s cardiologist at UMMC. Dr. Moore sent Dr. May a written consultation letter on June 28, 2006, giving permission to proceed with the surgery. The letter noted that Dr. May should premedicate Latisha with antibiotics before the procedure, minimize the use of epinephrine in the local anesthetic, and use low-dose systemic sedation as needed. Additionally, Dr. Moore noted that the extraction of the wisdom teeth posed a “mild risk for hemodynamic instability (abnormal or unstable blood pressure),” but “given the possible need for transplantation, the potential outweighs the risk.” Dr. Moore’s letter did not provide any information about whether the procedure should be done in a hospital or any post-surgical monitoring and care that should occur.

¶ 4. Latisha’s dental surgery was scheduled for July 14, 2006. Earlier that day, Latisha was seen by Dr. John Payne, a cardiac electrophysiologist at UMMC, concerning the implantation of the ICD. Dr. Payne’s notes indicated that Latisha had typical symptoms of volume overload because she had too little pump function. He also noted that her blood pressure was abnormally low but that Latisha had a history of clinically based low blood pressure. In addition to her appointment with Dr. Payne, Latisha visited with a heart-transplant recipient named Liz Carpenter to discuss all aspects of the transplantation process. Latisha had previously expressed concern over the heart-transplant process because she “was scared to have someone else’s heart” and because the medication following the transplant would cause weight gain.

¶ 5. Dr. May testified that, either at the consultation meeting or prior to the surgery that day, he had discussed the risks and complications of the surgery with Latisha. Latisha signed a document stating she was giving her informed consent to the dental procedure. Upon arrival at Dr. May’s office, Latisha appeared to be “a little weak,” but Dr. May determined he could still proceed with surgery. Latisha was given oxygen and was injected with local anesthesia. After being injected with the local anesthesia, Latisha told Dr. May’s staff she was feeling a little sick; his staff washed Latisha’s face with cold water, put her back on oxygen, and noted that Latisha responded well to that. The forty-five-minute procedure was completed, and Dr. May testified that he monitored her pulse and blood pressure on an LED screen on a machine. Dr. May’s staff disputed that the machine was used during the procedure. Additionally, there is no written record of Latisha’s blood pressure. After packing the extraction sites with gauze, Dr. May’s staff watched Latisha for ten to fifteen minutes prior to releasing her. Latisha informed them that she was feeling “very weak,” and she was given ammonia. The notation in Latisha’s medical record indicated that the ammonia helped and that Latisha was placed into Barrow’s car at approximately 3:00 p.m. to be driven home. Barrow was provided with Dr. May’s contact information and was instructed to call if there were any questions.

¶ 6. En route to their home in Sunflower County, Barrow called Dr. May’s office and spoke to Angie Fortenberry, Dr. May’s practice manager. Barrow told Fortenberry that Latisha was very weak and mumbling; Barrow further inquired as to when Latisha’s medication was going to wear off. Fortenberry told Barrow to continue monitoring Latisha because the medication wears off differently for different people but that mumbling was not unusual since Latisha’s gums had been deadened and her mouth was full of gauze. Fortenberry instructed Barrow to call back if she had any other questions or concerns. Barrow did not contact Dr. May’s office again.

¶ 7. Latisha arrived home and was taken to bed to rest. At some point that night, Latisha sat up and leaned over pillows trying to catch her breath. Her father called an ambulance, and at about 9:00 p.m., Latisha was taken to the emergency room in Indianola, Mississippi. She was in full code, and the hospital was unable to revive her. Latisha was pronounced dead at approximately 10:04 p.m. The autopsy report listed Latisha’s cause of death as a massive cardiomegaly. The autopsy report further showed that both Latisha’s lungs were filled with serosanguinous fluid and that her liver was enlarged.

¶ 8. Barrow filed suit against UMMC, Dr. Moore, and Dr. May on December 8, 2007. Claims against UMMC and Dr. Moore are not at issue in this appeal since both UMMC and Dr. Moore entered into a settlement with Barrow a few days before trial. In addition to other witnesses, Barrow designated Dr. Orrett Ogle as an expert witness in oral surgery and Dr. Robert Stark as an expert witness in cardiology and on the issue of causation. Dr. Stark was Barrow’s sole expert witness on causation because Dr. Ogle declined to offer any testimony as to causation. After Barrow designated Dr. Stark as an expert witness, Dr. May filed a motion to partially strike Dr. Stark’s affidavit and report because Dr. Stark lacked knowledge and training in the fields of dentistry and oral surgery. The circuit court granted Dr. May’s motion. Several days before trial, Dr. May filed a Daubert motion to exclude Dr. Stark’s testimony on the issue of causation. Trial commenced on Monday, July 19, 2010. After the jury pool was qualified, the circuit court held a Daubert hearing, and the Daubert motion was taken under advisement. On July 20, 2010, the circuit judge advised both parties that he was inclined to grant the Daubert motion, but he wanted the trial to proceed since Dr. Stark was en route to Jackson, Mississippi, and he could consider Dr. Stark’s live testimony. The circuit judge further advised the parties that the Daubert ruling would be withheld until after Dr. Stark provided his testimony. The following day, Dr. Stark testified that Latisha died due to an acceleration of her CHF to acute heart failure due to the stress of the oral surgery. Citing to a portion of Dr. Arthur Guyton’s Textbook of Medical Physiology entitled “Acute Pulmonary Edema in Late Stage Heart Failure — A Lethal Vicious Circle,” Dr. Stark testified that the stress caused a surge of adre-nergic activity sending Latisha into a “lethal vicious circle” resulting in her death. Dr. Stark testified that the lethal vicious circle is “usually set off by some temporary overload of the heart, such as might result from a bout of heavy exercise, some emotional experience, or even a severe cold.” Dr. Stark stated that the fear of the dental surgery or the surgery itself produced a surge of adrenaline in Latisha that set off the “lethal vicious circle.” The record reflects that Barrow’s and Dr. May’s attorneys, as well as the circuit judge, acknowledged that Barrow had no expert witness on causation other than Dr. Stark. The circuit court granted Dr. May’s Daubert motion and ultimately granted a directed verdict in favor of Dr. May finding that Dr. Stark’s testimony was too speculative and that Barrow had failed to establish causation. Barrow filed a motion for a new trial, but that motion was denied on September 22, 2010.

¶ 9. On appeal, Barrow raises the following issues:

I. Whether the [circuit] court abused its discretion and committed reversible error when it found that the opinions of [Barrow’s] causation expert were mere speculation, where said expert was found to be a qualified and board-certified expert in cardiology and internal medicine, and whose opinions were supported by the evidence and medical literature, and unopposed by any medical testimony, much less by any medical expert testimony in conjunction with any opposing medical literature.
II. Whether the [circuit] court abused its discretion by (1) hearing a Dau-bert motion filed on the eve of trial, where said motion was proffered as being a dispositive motion, if granted, despite the distant passing of the dispositive motion deadline in the pretrial order; (2) refusing to allow the inclusion of additional medical literature by [Barrow’s] expert in response to the late-filed Daubert motion; and (3) refusing to allow expert testimony based adherence to artificial titles or distinctions rather than on the expert’s demonstrated knowledge or expertise.

STANDARD OF REVIEW

¶ 10. “The standard of review for the admission or exclusion of evidence, such as expert testimony, is an abuse of discretion.” Denham v. Holmes, 60 So.3d 773, 783 (¶ 34) (Miss.2011) (quoting Investor Res. Servs. v. Cato, 15 So.3d 412, 416 (¶ 2) (Miss.2009)). An appellate court will not overturn the decision of the trial court on an evidentiary issue unless the trial court abused its discretion, meaning that the decision was arbitrary or clearly erroneous. Worthy v. McNair, 37 So.3d 609, 614 (¶ 13) (Miss.2010).

DISCUSSION

¶ 11. In a medical-malpractice suit, “a plaintiff must show: (1) the existence of a duty on the part of the physician to conform to a specific standard of conduct; (2) the specific standard of conduct; (3) that the physician’s breach of the duty was the proximate cause of the plaintiffs injury, and (4) that damages resulted.” Young v. Univ. of Miss. Med. Ctr., 914 So.2d 1272, 1276 (¶ 15) (Miss.Ct.App.2005) (citing Barner v. Gorman, 605 So.2d 805, 808-09 (Miss.1992)). In order to satisfy the proximate-cause element, “[t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.” Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987) (citations omitted). Expert testimony is required to establish the first three elements, and without expert testimony supporting each element, a defendant is entitled to summary judgment. Hubbard v. Wansley, 954 So.2d 951, 956-7 (¶ 12) (Miss.2007). The expert’s testimony must “identify and articulate the requisite standard that was not complied with, [and] the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. at 957 (¶ 12) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)).

I. Dr. Stark’s Testimony

¶ 12. Barrow first asserts that the circuit court abused its discretion by determining Dr. Stark’s testimony as to causation was too speculative and granting Dr. May’s Daubert motion. According to Barrow, Dr. Stark was folly qualified as an expert witness, and his testimony and opinions were supported by sound medical literature.

¶ 18. We find Barrow’s argument unpersuasive. First, Barrow cites to Hill v. Mills, 26 So.3d 322, 332-33 (¶ 41) (Miss.2010), for the proposition that “when the reliability of an expert’s opinion is attacked with credible evidence that the opinion is not accepted within the scientific community, the proponent of the opinion under the attack should provided at least a minimal defense supporting the reliability of the opinion.” Our review of the record does not indicate that Dr. May or the circuit court attacked Dr. Stark’s testimony on the ground that it was not accepted within the scientific community. Rather, it appears that the circuit court was concerned with Dr. Stark’s application of the relevant medical literature to the facts of the current case. The essence of Dr. Stark’s testimony at trial was that the stress of the anticipation of the surgery and the surgery itself produced a surge of adrenaline in Latisha’s body and that according to the accepted medical literature, this surge of adrenaline sent Latisha into a “lethal vicious circle” that ultimately led to her death. According to Dr. Stark, the lethal vicious circle occurs

when you have a trigger[,] like this surgery or a huge release of adrenaline!;] you can get an increase in the heart rate and a temporary increase in heart con-tractility that can cause a vicious cycle when the heart tries to pump harder, tries to perform better, but it [cannot] because the person has congestive heart failure. And that can increase the heart’s need for oxygen. The heart uses more oxygen, but because the heart is diseased, it cannot utilize that oxygen to pump better. And that is a vicious cycle that leads to more oxygen deficit in the heart muscle, decrease[d] pump function of the heart, [and] more pulmonary edema. The person [cannot] breath and— and they die.

When asked about his opinion as to what caused Latisha’s cardiac death, Dr. Stark stated: “She had a cardiac death due to cardiac failure and/or cardiac arrhythmia.” Dr. Stark testified that sixty to seventy percent of CHF patients reaching the end of the lethal vicious circle die of arrhythmia and forty percent die of pump failure. Therefore, according to Dr. Stark, the stress of the surgery, the surgery itself, and the resulting surge of adrenaline resulted in either acute cardiac failure or an arrhythmia. However, on cross-examination, Dr. May asked the following question: “And you have no idea as we sit here today whether [Latisha] had a fatal arrhythmia or just a pump failure.” Dr. Stark’s response: “That’s-that’s correct.”

¶ 14. In regard to the admissibility of expert witness testimony, “the trial judge is to act as a gatekeeper, ensuring that expert testimony is both relevant and reliable.” Poole v. Avara, 908 So.2d 716, 723 (¶ 15) (Miss.2005) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). Under Daubert, a two-prong inquiry is provided for a trial judge to determine if an expert witness’s testimony is admissible: “(1) whether the expert opinion is relevant in that it must ‘assist the trier of fact’ and (2) whether the proffered opinion is reliable.” Rhodes v. Rhodes, 52 So.3d 430, 445 (¶ 63) (Miss.Ct.App.2011) (citing Miss. Tramp. Comm’n v. McLemore, 863 So.2d 31, 38 (¶ 16) (Miss.2003)). Mississippi Rule of Evidence 702 also provides guidance when determining the admissibility of expert testimony. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

When granting Dr. May’s motion for directed verdict, the circuit judge stated that Dr. Stark was the sole witness on the issue of causation and that he found Dr. Stark’s opinions “relating to causation in large part were based on speculation about what occurred on July 14, 2006, regarding Latisha Barrow.” In his written opinion, the circuit judge reiterated that Dr. Stark’s opinions on the causation issue were based largely on speculation. It is undisputed that Latisha was a high-risk patient due to her late-stage CHF. According to Dr. Stark’s testimony, it was the anticipation of the oral surgery and the surgery that sent Latisha into the lethal vicious circle that resulted in either an arrhythmia or pump failure; however, Dr. Stark was not aware of any of Latisha’s other activities or stressors that occurred that day. Dr. Stark was specifically unaware that Latisha had met with a recent heart-transplant recipient before her oral surgery to discuss all aspects of the transplantation process. Latisha also discussed the implantation of an ICD and the seriousness of her condition with her cardiac electrophysiologist that same day. As the circuit judge stated, Dr. Stark’s testimony did not fully consider all the stressors on Latisha that day.

¶ 15. Additionally, Latisha signed a document consenting to the procedure. The document stated that the administration of any anesthesia or sedation involves certain risks, including: “An allergic or unexpected reaction. If severe, allergic reactions might cause more serious respiratory (lung) or cardiovascular (heart) problems which may require treatment.” The document further stated that there could be “[cjardiovascular or respiratory responses which may lead to heart attack, stroke, or death.” Latisha signed the document on June 22, 2006, and acknowledged that she had “read and [understood] the above and [gave her] consent to surgery.” As Dr. May’s attorney stated, “even the stress of anticipation of the surgery could have caused this vicious circle to begin. Whether the surgery was done properly [or] improperly[, the lethal vicious circle] could have occurred because she was thinking about it, anticipating it, [and] going to the doctor’s office to have the surgery done.” Under Dr. Stark’s explanation, even if Dr. May decided at the last minute not to proceed with the surgery that day, Latisha could still have experienced the lethal vicious circle due to her anticipation of the surgery. We find no case law and have had none provided to us by Barrow to support the proposition that a doctor may be held liable for the death of his patient caused by stressors necessarily incident to the oral surgery itself, such as the anticipation of surgery or the necessary pain incidental to surgery. Moreover, Latisha, an adult at the time, had given her informed consent to undergo the surgery and suffer such necessarily incidental risks.

¶ 16. The dissent proposes to reverse and remand this case pursuant to Mississippi Rule of Civil Procedure 52 because the record is inadequate for this Court to review due the circuit court’s failure to provide findings of fact and conclusions of law. Rule 52 provides that “[i]n all actions tried upon the facts vnthout a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” (Emphasis added). First, it should be noted that neither party requested the circuit court provide findings of facts and conclusions of law nor was this issue specifically raised by either party on appeal. The dissent raises it sua sponte. Additionally, this case clearly had a jury empaneled which distinguishes it from the language found in Rule 52. Simply, this is not a Rule 52 issue.

¶ 17. Based on Dr. Stark’s testimony at trial regarding the cause of Latisha Barrow’s death and very thorough arguments by Barrow’s and Dr. May’s counselors, the circuit judge concluded that Dr. Stark’s testimony did not satisfy Daubert and/or Rule 702 and that his testimony would not “assist the trier of fact” and was not reliable on causation. The circuit judge, therefore, excluded Dr. Stark’s opinion on causation. To summarize in this case, we are confronted with a high-risk patient for sudden death due to arrhythmia who underwent a disturbing, if not traumatic, discussion with her cardiac electrophysiologist about the need to have an ICD implanted and a discussion with a heart-transplant recipient just hours before the oral surgery. Additionally, Latisha consented to the oral surgery and those necessary risks inherent in the procedure. Dr. Stark’s testimony failed to take these other factors into consideration when providing his testimony. Ultimately, we cannot conclude that the circuit court abused its discretion in finding Dr. Stark’s testimony was too speculative to assist the jury in determining causation.

II. Other Alleged Abuses of Discretion

¶ 18. Barrow next asserts that the circuit court abused its discretion in the following ways:

1. [by] hearing a Daubert [m]otion filed on the eve of trial, where said motion was proffered as being a dispositive motion, if granted, despite the distant passing of the dispositive motion deadline in the pretrial order[;]
2. [by] refusing to allow the inclusion of additional medical literature by [Barrow’s] expert in response to the late-filed Daubert [m]otion[; and]
(3) [by] refusing to allow expert testimony based adherence to artificial titles or distinctions rather than on the expert’s demonstrated knowledge or expertise.

¶ 19. In regard to Barrow’s first sub-issue concerning the timeliness of Dr. May’s Daubert motion, one citation, to Hyundai Motor Am. v. Applewhite, 53 So.3d 749 (Miss.2011), is provided. In that case, Hyundai Motor America did not file a Daubert motion until after trial. Id. at 754 (¶ 15). The Mississippi Supreme Court stated: “Although a pretrial motion and hearing challenging the admissibility of expert opinions may in some, if not most, cases be a prudent practice, this Court has held that this is not the exclusive means of mounting challenges to such testimony.” Id. at (¶ 16). It further stated: “While the trial judge has discretion with regard to when and how to decide whether an expert’s testimony is sufficiently reliable to be heard by a jury, this does not eliminate the requirement that the party opposing the evidence make a timely objection to its being admitted into evidence.” Id. at 755 (¶ 17). Hyundai is distinguishable from the current case because in this case, the Daubert motion was filed prior to trial, whereas in Hyundai the Daubert issue was not raised until after trial. As the supreme court stated, while it is the “prudent practice” to bring a Daubert motion prior to trial, that “is not the exclusive means of mounting challenges to such [expert] testimony.” Hyundai Motor America, 58 So.3d at 754 (¶ 16). Therefore, we find that the circuit judge did not abuse his discretion in allowing Dr. May’s Dau-bert motion so close to trial.

¶ 20. Next, Barrow argues that the circuit judge erred in not allowing into evidence additional medical literature to support Dr. Stark’s testimony after the trial began. Barrow cites no relevant authority to support this contention; therefore we will not address this issue. See Mann v. Mann, 904 So.2d 1188, 1185 (¶ 12) (Miss.Ct.App.2004).

¶ 21. Lastly, Barrow argues that the circuit judge erred in sustaining Dr. May’s objection to Dr. Stark’s testimony based on an objection to “artificial medical titles” even though Dr. Stark was fully qualified to testify as to the issues. Specifically, Barrow challenges the circuit judge’s decision to prohibit Dr. Stark “from testifying about the treatment administered to [CHF] patients in a hospital setting.” Barrow was seeking Dr. Stark’s opinion as to the care an oral surgery patient with CHF would receive in a hospital setting. As Dr. Stark was a cardiologist and not an oral surgeon or anesthesiologist, expressing such an opinion was outside of his knowledge and training. Based on our review of the record, we cannot conclude the circuit judge abused his discretion.

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

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

RUSSELL, J.,

dissenting:

¶ 23. I respectfully dissent because the trial court failed to make findings of fact and conclusions of law regarding the “speculative” nature of Dr. Stark’s testimony. Therefore, I would vacate the judgment of the trial court and remand the case for the trial court to make specific findings of fact and conclusions of law.

¶ 24. “The standard of review for the admission or exclusion of evidence, such as expert testimony, is an abuse of discretion.” Denham v. Holmes, 60 So.3d 773, 783-4 (¶ 34) (Miss.2011) (quoting Investor Res. Sens. v. Cato, 15 So.3d 412, 416 (¶ 2) (Miss.2009)). An appellate court will not overturn the decision of the trial court on an evidentiary issue unless the trial court abused its discretion, meaning that the decision was arbitrary and clearly erroneous. Worthy v. McNair, 37 So.3d 609, 614 (¶ 13) (Miss.2010).

¶ 25. In a medical-malpractice suit, the elements of the tort are: (1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant. Hubbard v. Wansley, 954 So.2d 951, 956-57 (¶ 12) (Miss.2007) (quoting Drummond v. Buckley, 627 So.2d 264, 268 (Miss.1993)). To establish these elements, expert testimony is required. Id. at 957 (¶ 12). “Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)). Without expert testimony supporting each element, a defendant is entitled to summary judgment. Hubbard, 954 So.2d at 957 (¶ 12).

¶26. Proximate cause is an essential element in an action for negligence, and there must be some reasonable connection between the act or omission of the defendant and the damage the plaintiff has suffered. Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987) (quoting W. Keeton, Prosser & Keeton on Torts § 41 (5th ed.1984)). The plaintiff has the burden of proof on the issue of causation. Id. “The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.” Id.

¶ 27. In ruling in favor of Dr. May on the Daubert motion, the trial court cited Harris v. Shields, 568 So.2d 269, 274 (Miss.1990), and stated that a malpractice action requires evidence that in the absence of the alleged malpractice, a significantly better result would have been obtained. The trial court noted that Barrow had offered only one expert, Dr. Stark, on the issue of proximate cause. The court said that Dr. Stark had extensive qualifications. In fact, the court actually qualified him as an expert in the field of cardiology. However, the court found that Dr. Stark’s opinions, as they related to the proximate cause of Latisha’s death, were based mostly on speculation, but the court failed to provide a basis for this determination.

¶28. In this appeal, I do not believe this Court — in the absence of speculating — can perform its appellate responsibility of determining the correctness of the trial court’s judgment because the trial court has not given us detailed findings supporting its ruling. In its ruling, the trial court said that the testimony of Dr. Stark, who was the only witness on causation, “was based, in large part, on speculation.” However, the court did not cite any examples of the alleged speculative testimony, nor did the court explain why it was speculative.

¶ 29. The supreme court was faced with a similar lack of findings by a chancellor in 1987. “Before we may consider whether a trial court committed manifest error[,] it must tell us what it did. Similarly, before we may consider whether the record contains substantial evidence consistent with the trial court’s findings, we must know what those findings are.” Pace v. Owens, 511 So.2d 489, 491 (Miss.1987). Again, in 1987, the supreme court was faced with deciding an appeal without an opinion setting out findings of fact and conclusions of law. See Tricon Metals & Servs. v. Topp, 516 So.2d 236, 239 (Miss.1987). “We strive mightily to respect limitations upon our role where appeals are taken regarding issues of fact. The process breaks down, however, where the trial court sitting without a jury does not independently make findings of fact.” Id. The supreme court found the lack of findings to be an abuse of discretion and reversed and remanded to the trial court to make specific findings. Id.

¶ 30. In 2000, the supreme court, quoting Tricon, ruled:

[I]n cases of any complexity, tried upon the facts without a jury, the Court generally should find the facts specifically and state its conclusions of law thereon. Where a case is hotly contested and the facts greatly in dispute and where there is any complexity involved therein, failure to make findings of ultimate fact and conclusions of law will generally be regarded as an abuse of discretion.

Americrete, Inc. v. W. Ala. Lime Co., 758 So.2d 415, 418 (¶ 12) (Miss.2000) (internal quotations omitted). The court then vacated the judgment and the case was remanded for a ruling with findings of fact and conclusions of law. Id. at 419 (¶ 16).

¶ 81. Such findings arise from Rule 52 of the Mississippi Rules of Civil Procedure. In Fulop v. Suta, 847 So.2d 893, 895 (¶ 4) (Miss.Ct.App.2002) (citing Tricon, 516 So.2d at 288), this Court was faced with deciding a contracts case without any conclusions of law to support the trial court’s decision:

In Mississippi, courts sitting without juries are required to provide both a factual basis for their decisions in the form of concrete findings of fact and conclusions of law that are supported in toto by those findings of fact. M.R.C.P. 52(a). Failure to provide this Court with findings of fact and conclusions of law precludes us from performing our appellate duties.

¶ 32. In this case, we are asked to determine if Dr. Stark’s testimony was speculative without the benefit of knowing what testimony the trial court found speculative. The Court is left to guess whether the trial court found all of Dr. Stark’s testimony speculative. And, if so, why? If not all, but only some, of the testimony was speculative, then which parts of the testimony on causation were speculative and why?

¶ 33. The majority provides a rationale to support the trial court’s decision regarding the speculative nature of Dr. Stark’s testimony. In my view, the majority’s rationale is clearly speculative since the trial court failed to provide such a basis in its decision. See Pace, 511 So.2d at 491 (holding that “before we may consider whether the record contains substantial evidence consistent with the trial court’s findings, we must know what those findings are”).

¶ 34. The majority also places great emphasis on the fact that Latisha was alive at the end of the surgery, but gives no consideration to the fact that her condition had declined. It is undisputed that Latisha was a very ill patient with congestive heart disease. The evidence clearly shows that Latisha presented for surgery and was feeling a little weak. At the conclusion of the procedure, the record reflects that she was very weak. A few of Dr. Stark’s findings in his report are as follows:

To a reasonable degree of medical certainty, the oral surgery procedure, the stress of surgery, and the surge of adre-nergic activity post-surgery precipitated acute cardiac failure or arrhythmia in this extremely high-risk patient resulting in death. This is known to occur when an acute stress sets off a temporary overload of the heart in a patient who has chronic heart failure — “when there is an excessive increase in heart rate because the nervous reflexes of the heart overreact.” Guyton & Hall, Textbook of Medical Physiology [240-41 10th ed.]. It fell below the standard of care to perform this elective surgery at a time when Ms. Barrow was clearly showing signs of congestive heart failure (dysp-nea, rapid respirations, and fluid edema in the ankles and feet). Clinically, the finding of progressive edema is one indication of decompensated heart failure .... It also fell below the standard of care to perform this elective procedure in an outpatient setting in the absence of any blood pressure, heart rate, or respiratory monitoring.... Following Mrs. Barrow’s oral surgery, she was extremely weak and became unresponsive. “After she was given ammonia, she came around and was responding.” She had to be taken out of the office by wheelchair, and placed in her mother’s car. Nausea, dizziness and vomiting post-procedure certainly necessitated urgent assessment of these parameters, but this was not done. Dr. May should have realized that a pre-transplant heart patient with clear signs of congestive heart failure would be more safely managed in an inpatient setting for these dental extractions.... These opinions are to a reasonable degree of medical certainty.

Based on Dr. Stark’s opinions, the actions or inactions of Dr. May were the proximate cause to move her into the “lethal vicious cycle,” and without any intervention, resulted in her death. Additionally, Dr. Ogle provided testimony that Dr. May breached the standard of care. In spite of the majority placing some emphasis on Latisha’s meeting with the heart-transplant patient earlier that day and being afraid of a heart transplant, when she presented to Dr. May, her vital signs were normal for her.

¶ 35. During the process, it was disputed between Dr. May and his staff whether Latisha’s blood pressure, heart rate, or respiration rate was monitored during the procedure. It is undisputed that upon receiving the anesthesia, Latisha indicated that she felt ill. There was no indication that Dr. May took any measures to determine why she became ill after the anesthesia was administered. Latisha also presented other signs that should have raised concern by Dr. May. She was administered ammonia by Dr. May’s staff because she was feeling very weak at the conclusion of the dental procedure. Clearly, something was not normal. An hour into the drive home, her mother called with concerns regarding her status. When she got home, she went to bed. The record does not reveal any other intervening causes, and she ended up dying that night — within 6 hours of the surgery. As noted by our supreme court, “[t]he question is, did the facts constitute a succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the alleged wrong and the injury?” Miss. City Lines, Inc. v. Bullock, 194 Miss. 630, 13 So.2d 34, 36 (1943); see also Eckman v. Moore, 876 So.2d 975 (Miss.2004). In this case, there was no new independent cause. Rather, this was a situation of a succession of events leading to a natural whole.

¶ 36. The majority also states that Latisha’s fear of the surgery and her conversation with another heart-transplant patient contributed to her death. But what happened to her during and after surgery resulted in her death. In addressing the issue of proximate cause, Dr. Stark discussed the lethal vicious cycle, which is an accepted phenomenon in the medical community. It was the failure to monitor Latisha during the surgery and to take into consideration her conditions immediately following surgery that placed her in that lethal vicious cycle. Dr. Stark noted that this cycle will result in a patient’s death unless there is intervention. Instead of intervening, Dr. May just put Latisha in the car and sent her home. Nothing was done. They just sent her home, where the vicious cycle continued until her death because there was no intervention. And I note that she was not in this lethal vicious cycle prior to surgery, because her baseline levels were normal, so there was no need for concern at that point. Thus, it was not the anticipation of the surgery that led to her death. Rather, it was the failure to monitor her during the surgery and the failure to intervene after the surgery that resulted in her death.

¶ 37. This dissent is not to say that Barrow would have gotten a jury verdict, and it is not to say that the trial court’s decision was totally wrong. Rather, this dissent is to say that the trial court failed to provide the basis for its conclusion that the testimony was speculative. The trial court’s order stated that “most” of Dr. Stark’s opinions were speculative. But, if only one opinion was acceptable as to the cause of death, a directed verdict should not have been granted. It is my opinion that Dr. Stark gave enough testimony of the facts at hand to allow this case to go forward, to allow rebuttal expert testimony, and to allow the jury to decide the case.

¶ 38. This is a hotly contested, complex dental-malpractice case involving expert testimony, where the facts vary greatly. I would find that this case should be considered under Americrete. I would further find that the trial court abused its discretion when it failed to make findings of fact and conclusions of law, which would allow this Court to make a determination on the alleged errors. Therefore, I would vacate the decision of the trial court and remand the case for the trial court to make specific findings of fact and conclusions of law.

IRVING, P.J., JOINS THIS OPINION.

      . See Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . The issue of lack of informed consent was not raised at trial or on appeal.


text:
    Oliver Otis McCRAY a/k/a Otis McCray, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-00220-COA.
    Court of Appeals of Mississippi.
    July 31, 2012.
    Rehearing Denied Nov. 27, 2012.
    Certiorari Denied Feb. 21, 2013.

      Imhotep Alkebu-Lan, attorney for appellant.

      Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Oliver McCray was charged in the Circuit Court of Wilkinson County as an habitual offender with murder, robbery, and possession of a firearm by a convicted felon. The State offered McCray an “open” plea agreement where he would plead guilty in exchange for reduced charges (manslaughter and robbery as an habitual offender) but without a sentencing recommendation from the State. The circuit court accepted McCray’s plea on April 4, 2008, and after a hearing he was sentenced to serve fifteen and twenty years on the charges, respectively. The sentences were ordered to be served consecutively to each other and to a third sentence McCray was serving for a different crime.

¶2. McCray filed a timely motion for post-conviction relief where he claimed ineffective assistance of counsel and contended his indictment was defective. The circuit court dismissed the motion without an evidentiary hearing, and McCray appeals.

STANDARD OF REVIEW

¶ 3. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2011). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999).

¶4. “When reviewing a lower court’s decision to deny a petition for post conviction relief [an appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

1. Indictment

¶ 5. McCray contends that his indictment was defective because it was not signed by either the foreman of the grand jury or the circuit clerk. McCray attached a copy of his indictment, signed by the district attorney only, to his brief on appeal.

¶ 6. We find that this argument is proeedurally barred on appeal. In his original PCR motion filed in the circuit court, McCray contended his indictment was defective, but he gave no reason why. He has made the supporting argument for the first time on appeal, and it is procedurally barred as a result. “A trial judge cannot be put in error on a matter which was not presented to [her] for decision.” Wilson v. State, 904 So.2d 987, 995 (¶ 24) (Miss.2004),

¶ 7. Without waiving the procedural bar, we find no merit to McCray’s claim. The only support he offers is a copy of the indictment that has been attached to his brief on appeal. In reviewing this case we are limited to the appellate record, and a party cannot make something part of the record by simply binding it with his brief. McCullough v. State, 47 So.3d 1206, 1211 (¶ 18) (Miss.Ct. App.2010). McCray also ignores the certified copy of his indictment, found on the first page of the record, that is both signed by the grand jury foreman and stamped filed in the circuit court. The fact that an unsigned copy of the indictment exists somewhere has no effect on the fully executed indictment in the record.

2. Effective Assistance of Counsel

¶ 8. McCray’s remaining claim is that he received ineffective assistance of counsel. Such claims are governed by Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the convicted defendant must show that counsel’s representation fell below an objective standard of reasonableness. Second, the defendant must show there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss.2006) (citing Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052).

¶ 9. A prisoner seeking post-conviction relief “must allege both prongs of the above test with specific detail.” Coleman v. State, 979 So.2d 731, 735 (¶ 15) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)). The burden of proof for both prongs rests with the petitioner. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Since McCray pleaded guilty, to satisfy the second prong he must show that but for his counsel’s errors he “would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different.” Hannah, 943 So.2d at 24 (¶ 7).

¶ 10. McCray cites three instances of alleged ineffective assistance of counsel. First, he contends that his attorney failed to object to the defective indictment. This argument is without merit for reasons we have already addressed. McCray’s remaining claims are that counsel failed to investigate the case and that McCray was induced to plead guilty by a promise he would serve his sentences concurrently.

¶ 11. These contentions are supported in the record only by an affidavit executed by McCray himself. The affidavit merely restates McCray’s allegations in the most general terms, without any detail or supporting evidence.

¶ 12. A petitioner must produce “more than conclusory allegations on a claim of ineffective assistance of counsel.” Carpenter v. State, 899 So.2d 916, 921 (¶ 23) (Miss.Ct.App.2005). Bare allegations are insufficient to prove ineffective assistance of counsel. Mayhan v. State, 26 So.3d 1072, 1076 (¶ 10) (Miss.Ct.App.2009).

¶ 13. Additionally, McCray’s claims are contradicted by his own sworn statements in the record. In his petition to enter a plea of guilty, McCray admitted his guilt. He also stated under oath:

I have told my attorney all of the facts and circumstances known to me about the charge(s) asserted in the indictments). I believe my lawyer is fully informed on all such matters.
I declare that no ... person has made any promise [or] inducement of any kind to me ... that I will receive a lighter sentence, probation, early release, or any other form of leniency if I plead “[g]uilty.”
If no agreement has been reached with regard to a recommended sentence ... I understand neither my attorney nor any other person can represent to me that I will receive any particular sentence if I plead guilty. The final decision as to the sentence(s) rests with the Court.
I am satisfied with the advice and help [my attorney] has given me.

¶ 14. During his plea colloquy, McCray again admitted his guilt, and he acknowledged his plea petition. He also repeatedly stated that he understood he could be ordered to serve his sentences consecutively:

Q. Do you understand, that if the Court desired to do so, that these charges could run consecutive?
A. Yes, ma’am.
Q. They can run concurrent, but they can run consecutive too. Do you understand that?
A. Yes, ma’am.
Q. Knowing these things, do you still wish to enter a plea of guilty?
A. Yes, ma’am.
Q. Has anybody promised you anything in order to get you to plead guilty?
A. No, ma’am.
Q. Has [your attorney] threatened you in any manner or promised you anything in order to get you to plead guilty?
A. No, ma’am.

McCray also repeatedly stated under oath that he was satisfied with the services of his attorney.

¶ 15. The Mississippi Supreme Court has held that a PCR movant may not rely solely on his own self-serving affidavit or otherwise unsupported allegations in his brief. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). And “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required.” Gable v. State, 748 So.2d 703, 705-06 (¶ 8) (Miss.1999).

¶ 16. We agree with the circuit court that McCray’s claims of ineffective assistance of counsel are without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF WILKINSON COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, C.J.,

text:
    Forrest THOMAS III, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-01730-COA.
    Court of Appeals of Mississippi.
    July 31, 2012.
    Rehearing Denied Nov. 27, 2012.
    Certiorari Denied Feb. 21, 2013.

      Robert D. Evans, Greenville, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Forrest Thomas pleaded guilty in the Washington County Circuit Court to manslaughter and kidnapping. Thomas had killed his ex-wife and kidnapped their two children. His ex-wife had custody of the children, and an active restraining order was on file against Thomas at the time. Thomas was sentenced to serve twenty years on the manslaughter conviction and fifteen years on the kidnapping conviction, with the kidnapping sentence to run consecutively to the manslaughter sentence. Thomas timely filed his motion for post-conviction relief. The trial court denied Thomas’s motion.

¶ 2. In his appeal, Thomas argues he was not guilty of kidnapping, and his trial counsel was ineffective.

STANDARD OF REVIEW

¶ 3. When reviewing a trial court’s denial or dismissal of a motion for post-conviction relief, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009).

DISCUSSION

I. KIDNAPPING CONVICTION

¶ 4. Thomas argues he could not have been guilty of kidnapping because he was the father of the two children, and their mother, his ex-wife, was deceased at the time he kidnapped them; thus, the removal of the two children could not have been “against the will of their mother” as charged in the bill of information. However, “[a] guilty plea[ ] waive[s] all technical and non-jurisdictional issues in a bill of information just as it does for such defects in an indictment.” McCullen v. State, 786 So.2d 1069, 1075 (¶ 12) (Miss.Ct.App.2001). “[A] valid guilty plea admits all elements of a formal charge.... ” Reeder v. State, 783 So.2d 711, 720 (¶ 36) (Miss.2001). During his plea colloquy, Thomas admitted that he had kidnapped his children against the will of their mother. Solemn declarations in court carry a strong presumption of verity. Gable v. State, 748 So.2d 703, 706 (¶ 11) (Miss.1999). This issue is without merit.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 5. Thomas next contends his trial counsel was ineffective for purportedly advising him that Thomas could “beat” the kidnapping charge on appeal. In order to prevail on an ineffective-assistance-of-counsel claim, Thomas must show: (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because Thomas challenges a guilty plea based on ineffective assistance of counsel, he must show “counsel’s errors proximately resulted in the guilty plea and, but for counsel’s error, he would not have entered the guilty plea.” Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss.Ct.App.2006).

¶ 6. In support of his contention, Thomas provides affidavits from his father and brother. In identical affidavits, the two men state the following:

During the course of a conversation by Mr. Walls [ (Thomas’s trial counsel) ] to Thomas and the family, Mr. Walls, in talking to [Thomas] about whether he should plead guilty to kidnapping, said that the issue of whether the kidnapping charge was a legitimate charge since it said “against the will of their mother” and the mother was deceased at the time he took the children ... “could be looked into in a Post[-]Conviction Petition” after the plea was over.

Thomas contends that if his trial counsel had not told him this, he would not have pleaded guilty to the kidnapping charge. However, as stated in the first issue, during Thomas’s plea colloquy, he admitted murdering his ex-wife and kidnapping their two children. Thomas also admitted he was satisfied with his trial counsel’s representation. Thomas further denied being threatened or pressured into pleading guilty. We reiterate that solemn declarations in court carry a strong presumption of verity. Gable, 748 So.2d at 706 (¶ 11). It is not clear from the record whether Thomas in fact pleaded guilty because his attorney advised him that he would be allowed to file for post-conviction relief. From the evidence presented, we cannot find Thomas received ineffective assistance of counsel. This issue is without merit.

¶ 7. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT.

      . Prior to his guilty plea, Thomas waived the indictment and accepted the bill of information as the charging instrument. The bill of information is the functional equivalent of an indictment. McCullen v. State, 786 So.2d 1069, 1075 (¶ 12) (Miss.Ct.App.2001).