author: MAXWELL, J.,

text:
    Robert Marquez WILLIAMS a/k/a Robert Williams a/k/a Robert Maequez Williams a/k/a Robert Markez Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01895-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2013.

      Sanford E. Knott, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Madison County sheriffs deputies pulled over Robert Marquez Williams for a traffic violation. During the stop, Williams, who was driving a rental car, was questioned about possessing drugs. When a deputy mentioned using a drug-detection dog to sniff around the car, Williams, who was standing outside of the car, made a dash for the vehicle. Though one of the deputies shot Williams with a taser, Williams jumped back in car, put it in gear, and sped away. A high-speed chase on the interstate ensued, ending up with Williams flipping the car, then fleeing from the abandoned vehicle. Williams was later caught and convicted of felony evasion.

¶ 2. On appeal, Williams argues the initial traffic stop was illegal, and thus the evidence of his subsequent felonious evasion was inadmissible. We disagree and find the traffic stop was justified. But even if it were not, Williams would not have been immunized from criminal liability for a distinct, voluntary crime. We also find the evidence was sufficient to support the evasion conviction, the jury instruction on flight from the abandoned vehicle was proper, and the circuit judge’s rulings on four of Williams’s Batson challenges were not clearly erroneous. We therefore affirm Williams’s conviction for felony evasion and his five-year prison sentence.

Background

¶ 3. On July 22, 2008, Williams was driving east on 1-220 in Madison County, Mississippi, when Madison County sheriffs deputies saw his vehicle cross the “fog line” on the right side of the road. When the deputies pulled Williams over, they discovered he was driving a rental car listed in someone else’s name. According to one of the deputies, Williams appeared extremely nervous. Williams was asked to step out of the vehicle and did. When questioned if he possessed certain illegal drugs in the vehicle, Williams answered “no” to each question. But when asked about cocaine, his demeanor markedly changed, though he denied possessing the drug. After Williams declined a request for consent to search the car, one of the deputies told him he as going to walk his drug-sniffing dog around the car. And when the deputy went to get the dog, Williams jumped back into the rental car. In an effort to stop Williams, one of the deputies shot him with a taser.

¶ 4. After being tased, Williams did not stop. Instead, he jammed the car in gear and sped back onto the interstate, almost running another vehicle off the road. According to the deputies who pursued him, Williams was going over one hundred miles per hour when he veered onto 1-55 and crossed into Hinds County. The deputies halted their high-speed pursuit at the Hinds County line. But minutes later they learned from neighboring law enforcement officers that the rental car had been found flipped over on the next interstate exit. However, Williams did not wait around for law enforcement to arrive. Instead, he abandoned the wrecked car and fled. Williams was apprehended a few days later when he falsely reported to the rental-car company that the car had been stolen.

¶ 5. The State indicted Williams for felony evasion in violation of Mississippi Code Annotated section 97-9-72(2) (Rev.2006). A Madison County jury found him guilty of felony evasion, and he was sentenced to five years’ imprisonment. See Miss.Code Ann. § 97-9-72(2). After his post-trial motion was denied, Williams timely appealed.

Discussion

¶ 6. On appeal, Williams challenges four separate rulings by the trial judge, none of which we find were erroneous.

I. Denial of Motion to Suppress All Evidence

¶ 7. Before trial, Williams moved to suppress all evidence of the felony evasion. At the suppression hearing, he argued the traffic stop — which was the but-for cause of his speeding away from the deputies— violated his Fourth Amendment right against an unreasonable search and seizure. See U.S. Const, amend IV (prohibiting unreasonable searches and seizures). Because of this alleged constitutional violation, he asked that the evidence of what happened after the stop be deemed inadmissible “fruit of the poisonous tree.”

¶ 8. “The ‘fruit of the poisonous tree’ doctrine is an exclusionary rule that makes inadmissible tangible evidence obtained incident to an unlawful search or seizure.” Mosley v. State, 89 So.3d 41, 45 (¶ 13) (Miss.Ct.App.2012) (citations omitted). But this exclusionary rule only applies where the search or seizure was not justified. And here, we find the stop and later mentioning of the drug-detection dog were both lawful.

¶ 9. Law enforcement officers have authority to stop motorists “if the officer has probable cause to believe that the person is committing a traffic offense.” Burnett v. State, 876 So.2d 409, 411 (¶ 6) (Miss.Ct.App.2003) (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). By observing Williams weave out of his lane of traffic and across the fog line, the deputies had reasonable suspicion to justify stopping Williams for a traffic violation. Tran v. State, 963 So.2d 1, 14 (¶ 48) (Miss.Ct.App.2006) (holding crossing the fog line is a reasonable basis for a traffic stop). And having a trained dog sniff the outside of a vehicle during a valid traffic stop is not a Fourth Amendment violation. This drug detection technique is permitted during a brief detention, even if there is no reasonable, articulable suspicion of other criminal activity. Jaramillo v. State, 950 So.2d 1104, 1107 (¶¶ 7-8) (Miss.Ct.App.2007) (citing Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)).

¶ 10. But even if, as Williams argues, the deputies had lacked reasonable suspicion to pull him over, or exceeded the scope of the traffic stop with the drug dog, we find it would be unreasonable to expand the “fruit of the poisonous tree” doctrine to immunize a defendant from prosecution for a new, distinct crime like Williams’s evasion. Such an expansive view would give the defendant, as one federal appellate court put it, “an intolerable carte blanche to commit further criminal acts” as long as they are sufficiently causally connected to the initial police misconduct. United States v. Bailey, 691 F.2d 1009, 1016-17 (11th Cir.1982).

¶ 11. While Mississippi has not addressed this particular issue, we agree with the Eleventh Circuit that “if the defendant’s response is itself a new, distinct crime, then the police constitutionally may arrest the defendant for that crime.” Id. In Bailey, federal agents attempted to seize the defendant at an airport, in violation his Fourth Amendment rights. The defendant responded by fleeing on foot, throwing a bag containing illegal drugs and cash as he ran. When an agent caught up with him, the defendant assaulted the officer. The Eleventh Circuit held that, because the defendant’s response to the agents’ illegality was to commit a new, distinct crime — evasion of and assault on an officer — the agents could legally arrest him. Id. The agents were also justified in seizing the drugs and cash as part of a search incident to the arrest for the new crime. Id. The court explained its reasoning:

[W]here the defendant’s response is itself a new, distinct crime, there are strong policy reasons for permitting the police to arrest him for that crime. A contrary rule would virtually immunize a defendant from prosecution for all crimes he might commit that have a sufficient causal connection to the police misconduct.

Id. at 1017.

¶ 12. The Ninth Circuit has also refused to recognize “any self-help right [that would] immunize suspicious conduct” by the defendant during an illegal stop. United States v. Garcia, 516 F.2d 318, 320 (9th Cir.1975). In Garcia, the defendants, who were detained at a border stop, feigned compliance with the stop but then sped off. The court held no taint attached to the drugs found as a consequence of the ensuing pursuit by border agents based on the defendants’ new suspicious voluntary activity.

¶ 13. And in United States v. Garcia-Jordan, 860 F.2d 159, 160 (5th Cir.1988), the Fifth Circuit held that it was “unnecessary to address the legality of the stop” because the defendant, even if detained illegally, was “not immunized from prosecution” for the assault on a police officer, which he committed during the detention.

¶ 14. So here, even if Williams had been illegally detained, he would not be immunized from arrest, prosecution, and conviction for felony evasion. He committed this new, distinct, and voluntary crime after he was stopped. Thus, we find the trial judge properly denied Williams’s motion to suppress, as the evidence of the crime of felony evasion was not tainted by any Fourth Amendment violation.

II. Denial of Motion for a Directed Verdict and/or a Judgment of Acquittal Notwithstanding the Jury’s Verdict

¶ 15. After the State presented its case-in-chief, Williams moved for a directed verdict. Williams presented no additional evidence in his defense. After he was found guilty, Williams filed a motion for a judgment of acquittal notwithstanding the jury’s verdict. Both motions challenged the sufficiency of the evidence. And on appeal, Williams reasserts his claim that the evidence was insufficient to support finding him guilty of felony evasion.

¶ 16. This court reviews a sufficiency-of-the-evidence claim by “viewing the evidence in the light most favorable to the prosecution” and asking if “any rational trier of fact could have found the essential elements of [felony evasion] beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 17. Williams was found guilty of violating Mississippi Code Annotated section 97-9-72(2). Under section 97-9-72(1):

The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor[.]

Miss.Code Ann. § 97-9-72(1) (Rev.2006). And under section 97-9-72(2):

Any person who is guilty of violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felonyf.]

¶ 18. Williams argues insufficient evidence existed to convict him of felony evasion. He insists: (1) the deputies lacked reasonable suspicion to believe that he committed a crime; and (2) there was no evidence the deputies signaled him to stop once he pulled back on the interstate.

A. Reasonable Sitspicion Williams Committed Crime

¶ 19. As already discussed, because Williams had crossed a fog line, the deputies had reasonable suspicion to initiate the traffic stop. See Tran, 963 So.2d at 14 (¶ 48). And it was within the reasonable scope of the stop to walk the drug-sniffing dog around the car. Further, though Williams initially complied with the traffic stop, the jury heard evidence that Williams appeared nervous (the deputy could see Williams’s heart pounding in his chest), reacted differently when asked about cocaine versus other contraband, and broke for his car when informed about the drug-sniffing dog. Viewing this evidence in favor of the prosecution, a rational juror could have found beyond a reasonable doubt that the deputies, at the point Williams started to take off, had “a reasonable suspicion to believe that [Williams] ha[d] committed a crime.” Miss.Code Ann. § 97-9-72(1).

B. Signal to Williams to Stop

¶ 20. The jury also heard evidence that, when Williams began running back to the driver’s seat, one of the deputies pursued him, brandished his taser, then shot Williams with it. Yet rather than stopping or keeping his car parked, Williams sped off. The deputies then returned to their vehicle and began chasing Williams at a high rate of speed, only backing off when it became dangerous to continue pursuit.

¶21. Williams argues the signal element of section 97-9-72 was not met because the deputies did not signal him to stop after he sped off. Viewing the evidence in favor of the State, we certainly find shooting a suspect with a taser is akin to a full-sensory “hand” signal to Williams to stop and keep his car parked. And the deputies’ high-speed pursuit of Williams, who reached speeds of over one hundred miles per hour before ultimately flipping his vehicle, tends to prove he had been signaled to stop. So a rational juror could have found Williams was “given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop.” Miss.Code Ann. § 97-9-72(1).

¶ 22. The evidence, viewed in favor of the State, also supported the other elements of felony evasion. The deputies testified Williams almost caused another car to run off the road. And minutes later, the car Williams had been driving at extreme speeds was found flipped over on the side of an interstate exit. From this we find sufficient evidence that Williams’s evasion was felonious because he failed to stop “in such a manner as to indicate a reckless or willful disregard for the safety of persons or property” and “so operate[d] a motor vehicle in a manner manifesting extreme indifference to the value of human life.” Miss.Code Ann. § 97-9-72(2); cf. Betts v. State, 10 So.3d 519, 524 (¶¶ 14-17) (Miss.Ct.App.2009) (holding evidence in that case, when viewed in favor of prosecution, supported conviction of violating section 97-9-72(1) and (2)).

¶ 23. Thus, the trial judge properly denied both Williams’s motion for a directed verdict and his motion for a judgment of acquittal notwithstanding the jury’s verdict.

III. Giving of State’s Jury Instruction on Williams’s Unexplained Flight from the Scene of the Car Wreck

¶ 24. At trial, Williams objected to the State’s proposed jury instruction, S-3, which was given as Instruction 5:

“Flight” is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the Defendant, ROBERT MARQUEZ WILLIAMS, did flee or go into hiding, such flight or hiding is to be considered in connection with all other evidence in this case. You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt[ ] or innocence of the Defendant!.]

A. Two Requirements from Fuselier

¶ 25. Instruction 5 is a “flight” instruction. And a defendant’s “flight is admissible as evidence of consciousness of guilt.” Fuselier v. State, 702 So.2d 388, 390 (¶ 4) (Miss.1997). There are two principal considerations for determining if a flight instruction is appropriate — “(1) only unexplained flight merits a flight instruction, and (2) flight instructions are to be given only in cases where that circumstance has considerable probative value.” Id.

¶ 26. The flight referenced in Instruction 5 was Williams’s flight from the car he wrecked on 1-55, not his initial fleeing from the traffic stop on 1-220. Williams had objected to evidence that he wrecked and abandoned his car as irrelevant. But the judge found the evidence was relevant to whether Williams was consciously trying to evade law enforcement. The trial judge acknowledged the potential for confusion in having a flight instruction in a felony-evasion case. But he gave the instruction because he found the two paramount considerations of Fuselier had been met.

¶ 27. First, Williams had no explanation for why he abandoned his wrecked vehicle, other than his evasion of law enforcement. So there was no independent reason or basis for his flight. See Jimpson v. State, 532 So.2d 985, 990 (Miss.1988) (upholding flight instructions where there was no independent reason for flight); Mariche v. State, 495 So.2d 507, 508 (Miss.1986). And second, the circumstances of his unexplained flight were highly probative. To find Williams guilty of felony evasion, the jury had to find (1) Williams failed to stop in compliance with a signal from law enforcement, and (2) in failing to stop, he drove recklessly with indifference to human life. After review, we agree that evidence Williams flipped his rental car and then fled the wrecked car before law enforcement arrived was probative of both whether he was purposefully evading pursuing officers and whether, in doing so, he was driving recklessly.

B. Rule J03

¶ 28. Williams also suggests, even if evidence of his abandonment of the car was probative, its probative value was substantially outweighed by the danger of unfair prejudice. See M.R.E. 403. But we are mindful that trial judges are afforded “great discretion” in “determining whether to admit evidence of flight under Rule 403.” Shaw v. State, 915 So.2d 442, 447 (¶ 18) (Miss.2005) (citation omitted). And we hardly find that admitting evidence of Williams’s failure to stop even after he wrecked his car and fled on foot was unfair. This case is distinguishable from Fuselier, where the State offered evidence of the defendant’s flight to prove consciousness of guilt in a murder case, when the defendant’s independent reason for fleeing law enforcement officers was that he was a prison escapee — a highly prejudicial fact. Fuselier, 702 So.2d at 390-91 (¶¶ 3-9). Here, there was no independent reason for fleeing other than Williams’s abandoning his wrecked car to evade law enforcement, and no extraneous prejudicial fact. Because of the probative value of this evidence, we find neither the evidence, nor the related instruction violated Rule 403.

C. Williams’s Flight and Substantive Instruction

¶29. Williams next suggests the instruction allowed the jury to infer guilt based on flight, when “flight” itself was the charged crime. However, this argument is somewhat deceiving because Williams was not charged with — and the jury was not instructed on — the crime of “flight.” Rather, Williams was indicted for “felony evasion.” And based on Instruction 6, to find Williams guilty, the jury had to find beyond a reasonable doubt he committed all essential elements of felony evasion, none of which included the words “flight” or “hiding.”

¶30. While we recognize Williams’s flight after his wreck was a continuation of his initial failure to stop, we disagree that Instruction 5 took away the issue of Williams’s guilt from the jury. Instruction 5 clearly instructed that, before the jury could consider Williams’s flight as evidence of his consciousness of guilt, it first had to find he did indeed hide or flee. And only if the jury found Williams hid or fled must it consider, based on “all the facts[,] whether such flight or hiding was from a conscious sense of guilt.” Still, even then, the jury was told it could “give [its findings] such weight as [it thought].” So the flight instruction did not mandate the jury to convict Williams of evasion. It merely allowed the jury to weigh the evidence of Williams’s flight after the car wreck as it saw fit.

¶ 31. Instruction 5 in no way altered Instruction 6’s requirement that to find Williams guilty, the jury had to find beyond a reasonable doubt that Williams failed to stop after being signaled to do so by law enforcement.

¶ 32. “Jury instructions are within the discretion of the trial court and the settled standard of review is 'abuse of discretion.” Watkins v. State, 101 So.3d 628, 635 (¶ 22) (Miss.2012) (citation omitted). Reading all the instructions together, as we must, “if the jury instructions state the law of the case and create no injustice, then no reversible error will be found.” Id. Reading Instructions 5 and 6 together, we find the trial judge properly instructed the jury on both the law of unexplained flight and the charged crime of felony evasion.

IV. Ruling that State’s Use of Peremptory Strikes of Potential Jurors Was Not Racially Discriminatory

¶ 33. In Batson v. Kentucky, the United States' Supreme Court held that peremptory strikes of potential jury members cannot be exercised in a racially discriminatory way. Batson v. Kentucky, 476 U.S. 79, 82-84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). During jury selection, Williams, who is African American, challenged the State’s use of four of its peremptory strikes on African American venire members, arguing the State was striking these four potential jurors because of their race.

¶ 34. With the claim of racial discrimination having been raised, the trial judge applied the appropriate three-part inquiry:

First, the party objecting to the peremptory strike of a potential juror must make a prima facie showing that race was the criterion for the strike.
Second, upon such .a showing, the burden shifts to the State to articulate a race-neutral reason for excluding that particular juror.
Finally, after a race-neutral explanation has been offered by the prosecution, the trial court must determine whether the objecting party has met its burden to prove that, there has been purposeful discrimination in the exercise of the peremptory strike, i.e., that the reason given was a pretext for discrimination.

Pitchford v. State, 45 So.3d 216, 224 (¶ 14) (Miss.2010) (citing Flowers v. State, 947 So.2d 910, 917 (¶ 9) (Miss.2007)).

¶ 35. The trial judge found Williams made a prima facie case that race was the reason for the strikes. So the judge then required the State to articulate race-neutral reasons for each strike. The State gave these reasons for the four strikes:

(1) Juror 1 had been arrested by the Madison County Sheriffs Department, the same department responsible for stopping and pursuing Williams. She also had the same last name as a known crime family in Canton.
(2) Juror 2 had a relative that had been arrested and incarcerated for rape. When asked if she could be fair, she responded, “Hard to say.”
(3) Juror 9 had a father serving a life sentence in prison for murder.
(4) Juror 13 expressed that he distrusted law enforcement.

The trial judge determined the State met its burden of articulating race-neutral reasons. And in carrying out the third step, the judge found none of the State’s race-neutral reasons were pretextual.

¶ 36. On appeal, Williams argues the judge failed to apply step three. Williams focuses on Juror 9, whose father is incarcerated, and argues the judge did not compare her to other non-African American venire members who expressed similar situations but were accepted on the panel. But from our review it is apparent the judge did consider whether the State accepted other jurors with family members in jail. And what he found was that, while other venire members mentioned relatives or roommates that had been arrested, no other venire member had a relative that was currently not only in prison — but in prison for a life sentence. Indeed, the judge pointedly asked Williams’s attorney if he knew of “anyone else that has been accepted that has someone that’s actually been convicted and is presently serving time in jail.” And Williams’s counsel admitted no other venire member was closely related to someone “presently in jail.”

¶ 37. Our supreme court has directed this court to “give[] great deference to a trial court’s determinations under Batson because they are based largely on credibility.” Flowers, 947 So.2d at 917 (¶ 8) (citing Berry v. State, 802 So.2d 1033, 1037 (¶ 9) (Miss.2001)). Because of this required deference, we may only overturn a Batson ruling if the record shows it was “clearly erroneous or against the overwhelming weight of the evidence.” Id. (quoting Thorson v. State, 721 So.2d 590, 593 (¶ 4) (Miss.1998)). Because the record does not indicate the judge’s, ruling was clearly erroneous or contrary to the evidence, we find no reversible error.

¶ 38. For these reasons, we affirm Williams’s felony-evasion conviction and sentence of five years’ imprisonment.

¶ 39. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF FELONY EVASION AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $5000, WITH $4,000 SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . Williams was specifically charged with: (1) willfully failing to stop driving his motor vehicle in compliance with a visible and audible signal given by a law enforcement officer, who was acting in lawful performance of his duty and who had reasonable suspicion to believe Williams had committed a crime, and (2) in failing to stop, operating his vehicle in a manner indicating a reckless and willful disregard for the safety of persons or property and an extreme indifference to human life.

      . Between its second and third peremptory strikes, the State did accept an African American female, Juror 7, for the panel.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    In the Matter of the Heirship of Albert GARDNER: Kashonna Young, Linda White, Michael Bowman, Gwindle Aryeetay, Alvo Daniels, Melvin Henderson, Albert Henderson and Michael Moore, Appellants v. Arillia POLLION, The Estate of Albert Gardner, Stokes Anderson, Lucille Macklin, Janett Nadine White Reese, Lanett Marie White Stevenson, Darnett Voline, Norbert Lee White, Robert Lee White, Jr., Colnett Wendy White McGee, Gerry Lee White, Annette Sharon White Richardson, Minnette Karen White Blair, and Kerry Lee White, Appellees.
    No. 2012-CA-00480-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2013.

      Eduardo Alberto Flechas, Ronald Earl Stutzman Jr., Jackson, attorneys for appellants.
    Precious Tyrone Martin, Terri Denise Murry-Whalen, Derek Royce Arrington, Hattiesburg, Tenis Catón Harris, Jackson, attorneys for appellees.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Our supreme court has held that parties generally may only appeal from a final judgment. M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss.2006). “A final, appealable[ ] judgment is one that ‘adjudicates the merits of the controversy which settles all issues as to all the parties’ and requires no further action by the [trial] court.” Walters v. Walters, 956 So.2d 1050, 1053 (¶ 8) (Miss.Ct.App.2007). Absent an express certification by the trial judge that there is “no just reason for delay” and an explicit direction “for the entry of the judgment,” there can be no appeal from a judgment resolving less than all issues or claims against all parties. M.R.C.P. 54(b).

¶ 2. This case is a complex proceeding to determine the heirs of Albert Gardner in Yazoo County. In a February 2012 order, the trial court found that the Appellants’ claims for establishment as children of their putative deceased father are barred by Mississippi Code section 91-1-15 (Supp. 2012). Because the chancellor’s order was not certified under Rule 54(b), it is not a final, appealable judgment. Therefore, we lack jurisdiction to consider the merits of this case and must dismiss.

FACTS

¶ 3. Albert Gardner, whose estate consisted mainly of a parcel of real estate in Yazoo County, Mississippi, died intestate in 1924. The following year, his estate was opened and his heirs were adjudicated to be his wife, Francis; their five living children; and ten grandchildren, the offspring of a deceased child. More than eighty-two years after his death, on December 16, 2009, two of his grandchildren filed a petition to reopen his estate for determination of heirship, stating that his heirs were owed oil, gas, and mineral royalties.

¶ 4. The Appellants in this action are the putative children of Albert Clayborne, a great-grandchild of Albert Gardner. Albert Clayborne, the divorced father of eight legitimate children, died in 1998. No action was initiated to adjudicate his heirs until 2009.

¶ 5. Kashonna Young and others joined in the pending Yazoo County proceedings, claiming to be children of Albert Clay-borne. They opened estate proceedings in Humphreys County, Albert Clayborne’s residence when he died, seeking the same determination of the same issue: that Albert Clayborne is their father and they are entitled to a portion of his estate. The two actions were consolidated by the trial courts. From a finding that the claims of heirship by the thirteen putative children of Albert Clayborne were untimely and without standing, eight of those claimants have appealed and seek reversal of the chancellor’s decision.

DISCUSSION

¶ 6. We must first note that while neither side raised the issue of jurisdiction, we must address this threshold issue. See Anderson v. Britton & Koontz Bank, N.A., 55 So.3d 1130, 1131 (¶ 5) (Miss.Ct.App.2011).

¶ 7. In her fifty-page memorandum and order dated February 28, 2012, the chancellor, in a short paragraph on the next-to-last page, held that “the following are not the lawful heirs of Albert Gardner because they fail to comply with 91-1-15 of the Miss.Code Ann.” and listed the thirteen putative children of Albert Clayborne. That statute provides that paternity of an illegitimate may be adjudicated if: (1) there is a marriage of the parents of an illegitimate, though later dissolved, or (2) there has been adjudication of paternity during the lifetime of a deceased, or (3) there has been an adjudication of paternity after death of an intestate as therein provided. Miss.Code Ann. § 91 — 1—15(3)(a)— (c). The statute further provides, as to the third requirement:

[N]o such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child.

Miss.Code Ann. § 91 — 1—15(3)(e).

¶ 8. Under Rule 54(b), a trial judge “may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties” in an action. M.R.C.P. 54(b). But the judge may do so “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” Id. And absent a Rule 54(b) certification, any judgment — regardless of how designated — is not final if it “adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties.” Id.; see also M.R.C.P. 54(b) cmt.

¶ 9. Rule 54(b) does not require that a judgment be entered when the court disposes of one or more claims or terminates the action as to one or more parties. “Rather, it gives the court discretion to enter a final judgment in these circumstances and it provides much needed certainty in determining when a final and appealable judgment has been entered. If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner.” M.R.C.P. 54(b) cmt. Here, the chancellor did not indicate that the order was a final judgment or provide any Rule 54(b) certification. The fifty-page order contains many gaps regarding Albert Gardner’s descendants and their spouses, as recognized by the chancellor:

IT IS, FURTHER, ORDERED AND ADJUDGED that the aforementioned determination of heirs are subject to any spouse who survived said heirs who was not made a party to this litigation.

Whether Albert Clayborne’s mother and his grandfather survived their spouses is undetermined in the order. Further, the record shows that the order appealed from has been amended since the Appellants filed their appeal with this Court. We therefore conclude that these heirship proceedings are not final, even as to the Appellants, as they are still subject to further changes and amendments.

¶ 10. Without a certification under Rule 54(b), “any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54(b) cmt; see also Owens v. Nasco Int’l., Inc., 744 So.2d 772, 774 (¶ 8) (Miss.1999). Further, the Appellants neither sought nor received permission under Rule 5 of the Mississippi Rules of Appellate Procedure to proceed with an interlocutory appeal of this nonfinal judgment. An appellate court, on its own initiative, may dismiss an appeal for the absence of a Rule 54(b) certification. Miller v. R.B. Wall Oil, Co., Inc., 850 So.2d 101, 103 (¶ 5) (Miss.Ct.App.2002). Therefore, we dismiss for lack of jurisdiction.

¶ 11. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Albert Clayborne also spelled his name, as did some of his children, "Claiborne.”


text:
    Coby O. COOK a/k/a Colby O. Cook a/k/a Coby Cook, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01489-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2013.

      Coby 0. Cook, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Coby 0. Cook filed his second petition for post-conviction collateral relief in the Webster County Circuit Court. The circuit court dismissed the petition, finding it was procedurally barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2012). We find no error and affirm.

FACTS

¶ 2. Cook was indicted for two counts of armed robbery and one count of burglary of a dwelling. During his guilty-plea hearing on June 20, 2011, Cook stated that he no longer wanted to be represented by his court-appointed defense attorney. The trial court explained to Cook that he could either proceed with his court-appointed counsel, hire private counsel, or represent himself.

¶ 3. Cook requested a continuance, stating that his family was coming up with the money to hire private counsel. Cook’s request was denied. The trial court reasoned that it was unrealistic that Cook’s family would provide funds for private counsel, since they had not come up with the funds in the past six months. After the trial court again informed Cook of his choice to either proceed with his appointed counsel or continue pro se, Cook stated that he would represent himself.

¶ 4. Based on Cook’s request, the trial court the conducted an on-the-record examination to determine whether Cook knowingly and voluntarily desired to represent himself. The trial court allowed Cook to continue pro se but kept Cook’s dismissed attorney in the courtroom as standby counsel. Ultimately, Cook pled guilty to the one count of armed robbery in exchange for the State’s recommendation to dismiss the second count of armed robbery and the count of burglary of a dwelling. Cook was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections.

¶ 5. Cook filed a petition for post-conviction relief, stating his counsel was ineffective. The trial court denied his petition on February 8, 2012. Cook then filed a second petition for post-conviction relief in the trial court on the same grounds, and that petition was dismissed on August 6, 2012 as a successive writ. Cook now appeals that decision.

STANDARD OF REVIEW

¶ 6. When reviewing a trial court’s decision to dismiss a PCR petition, this Court will not disturb the trial court’s factual findings unless we find them to be clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). This Court employs a de novo review when reviewing questions of law. Id.

DISCUSSION

¶ 7. Under Mississippi Code Annotated section 99-39-23(6) (Supp.2012), a petitioner is prohibited from filing successive petitions for post-conviction relief. Section 99-39-23(6) further provides that “any order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” The trial court denied Cook’s first petition for post-conviction relief on February 8, 2012. Therefore, the trial court properly dismissed the second petition for post-conviction relief as successive-writ barred.

¶ 8. Notwithstanding the fact Cook’s second petition for post-conviction relief was properly dismissed as successive-writ barred, Cook’s ineffective-assistance claim is without merit. Cook made a knowing, voluntary, and intelligent decision to dismiss counsel and proceed pro se at the guilty-plea hearing. “[WJhere a defendant declines appointed counsel and proceeds to represent himself with appointed counsel only standing by to provide assistance if called uponf,] ... the defendant will not be heard to complain on appeal of ineffective assistance of counsel.” Jackson v. State, 1 So.3d 921, 926 (¶ 10) (Miss.Ct.App.2008) (citation omitted).

CONCLUSION

¶ 9. We find that the trial court properly dismissed Cook’s second petition for post-conviction relief.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF WEBSTER COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WEBSTER COUNTY.

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


author: GRIFFIS, P.J.,

text:
    Jonathan Taylor HARRIS, by and Through His Natural Parents and Legal Guardians, Anthony T. HARRIS and Susan W. Harris, Appellant v. BOARD OF TRUSTEES OF the CLINTON PUBLIC SCHOOL DISTRICT, John McKee, Tommie Cardin, Denotris Jackson, Nancy Perry, Dennis Dyse, Tommye Henderson, Corey Schneider, and Kevin Daniels, Appellees.
    No. 2012-CA-01621-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.

      David Neil McCarty, attorney for appellant.

      Elizabeth Lee Marón, James A. Keith, Jessica Iris Morris, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Jonathan Taylor Harris, a minor, by and through his natural parents and legal guardians, filed a tort-claims action against the Clinton Public School District as well as its board members and employees. The circuit court granted a summary judgment after finding the District and its board members and employees were immune from liability under the Mississippi Tort Claims Act (MTCA). We find no error and affirm.

FACTS

¶ 2. The facts of this case are not in dispute. On May 1, 2007, Clinton Junior High School administered the Mississippi Curriculum Test (MCT), a standardized, state-wide test conducted through the Mississippi Department of Education (MDE). MDE requires school districts to develop a testing-security plan for administration of the MCT in order to maintain and protect the security and integrity of the testing process. The District formulated and adopted its test-security plan. District employees were assigned to each classroom to administer and proctor the MCT.

¶ 3. The school plan also established a procedure for proctors to address “student emergencies,” which included when a student needed to go to the bathroom or was faced with a sudden illness. Under the plan, a proctor would be assigned to each hall in case of a student emergency. The proctor would accompany the student to the office or wherever the student needed to go in the event of an emergency.

¶ 4. Kevin Daniels and Corey Schneider were teachers at Clinton Junior High. They administered and proctored the MCT exam for Harris’s classroom. Harris, a seventh-grade student, took the MCT test under Daniels’s and Schneider’s supervision.

¶ 5. During the test, Harris raised his hand and requested to use the restroom. Schneider told Harris he could not leave the classroom during the test. After the test was over, Harris requested again if he could use the restroom. Daniels refused Harris’s request, but asked if Harris could wait until the students were released for the next class. After about twenty minutes, Harris asked a third time if he could go to the bathroom. Daniels granted this request. As Daniels went to get the hall proctor to accompany Harris to the restroom, however, Harris urinated on himself in front of the classroom and his fellow students.

¶ 6. On December 17, 2007, Harris, by and through his natural parents and legal guardians, filed his complaint in the County Court of Hinds County. Harris alleged that the two denials to use the restroom by Daniels and Schneider were the proximate cause of emotional and financial damages he suffered from urinating on himself in front of his classmates. Harris claimed that the District, Daniels, Schneider, the superintendent, and the board members of the District, who were acting within the scope of their employment with the District, were liable for those damages under the tort theories of outrage, intentional infliction of emotional distress, negligence, negligence per se, and negligent supervision.

¶ 7. The District filed a motion for summary judgment, pursuant to Mississippi Rule of Civil Procedure 56. The District claimed that it was immune from liability under the MTCA, as the actions of Daniels and Schneider were discretionary within the meaning of the law. Miss.Code Ann. § 11 — 46—9(l)(d) (Rev.2012). The county court granted summary judgment in favor of the District. The county court held that Daniels’s and Schneider’s refusal to allow Harris to use bathroom until his third request was a discretionary function, and thereby, the District was immune from liability.

¶ 8. Harris appealed the county court’s decision to the circuit court. The circuit court affirmed the county court’s grant of summary judgment and found the District immune from liability under the MTCA for the discretionary actions of Schneider and Daniels. It is from this judgment that Harris now appeals.

DISCUSSION

I. Standard of Review

¶ 9. The circuit court’s grant or denial of a motion for summary judgment is reviewed de novo. Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So.3d 68, 71 (¶ 5) (Miss.2012) (citation omitted). We view the evidence “in the light most favorable to the party against whom the motion has been made.” Id. (citation omitted). The supreme court has also held:

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to [a] judgment as a matter of law.... [T]he [party opposing summary judgment] “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.”

Id. (citations and quotation marks omitted).

¶ 10. The supreme court has also held that “immunity is a question of law and is a proper matter for summary judgment under [Rule] 56.” Dancy v. E. Miss. State Hosp., 944 So.2d 10, 15 (¶ 16) (Miss.2006) (citations omitted).

II. Whether the District is immune from liability under the MTCA.

¶ 11. Both the county and circuit court found the District as well as its board members and employees to be immune. Harris argues that it was error to find the District employees’ conduct to be discretionary and, thereby, protected by the MTCA. Harris claims that because the plain language of the District’s testing plan defined his need to go to the bathroom as a “student emergency,” his need was an inherent emergency and not a discretionary function under state law. Further, Harris claims the District’s plan’s own public policy was thwarted when the District failed to properly follow its language.

¶ 12. The MTCA “provides the exclusive civil remedy against a governmental entity or its employee for acts or omissions which give rise to a suit.” Sanders v. Riverboat Corp. of Miss.-Vicksburg, 913 So.2d 351, 355 (¶ 14) (Miss.Ct.App.2005) (citation omitted). The law, however, provides exceptions to liability for certain acts and omissions by a governmental entity. Mississippi Code Annotated section 11-46-9(l)(d) provides:

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

¶ 13. A duty is discretionary when it is not established by law and relies on the choice or judgment of the governmental entity and/or its employee. Dancy, 944 So.2d at 16 (¶ 19). A duty is ministerial if it is imposed by law and required to be performed at a specific time and place, removing a governmental employee’s or entity’s choice or judgment. Covington Cnty. Sch. Dist. v. Magee, 29 So.3d 1, 5 (¶ 8) (Miss.2010) (citation omitted).

¶ 14. Further, a two-part “public-policy function” test is applied to determine whether conduct is considered a discretionary function subject to immunity. Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 795 (¶ 20) (Miss.2012) (internal citations omitted). First, the court must determine “whether the activity involved an element of choice or judgment.” Id. “If so, this Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations.” Id.

¶ 15. Here, we find that the refusal to allow Harris to use the restroom was a discretionary function subject to immunity by the MTCA. While the District was required to establish a student-testing plan for administration of the MCT, the testing-security procedures of the plan were left to the discretion of the District employees, particularly the assigned test proctor and administrator. While the plan established a protocol for student emergencies that involved restroom requests by the students, neither the plan nor the MDE automatically required the proctor to allow a student to use the bathroom at a specific time or location. The testing-security plan clearly states that “if there is an emergency, the proctor will accompany the student to the office or wherever he/she needs to go.” The test administrator and proctor had to exercise their own discretion to determine whether the student’s restroom request was an emergency that necessitated immediate bathroom use or could wait until the next bell rang or testing was over. An element of choice or judgment was involved in the decision because it was left up to the administrator or proctor to allow bathroom use in case of an emergency. The circuit court order cited an Alabama case that held that a teacher’s denial of a student’s request to use the restroom is a discretionary function that entitled the school teacher and school district to immunity from suit. Boyett ex. rel. Boyett v. Tomberlin, 678 So.2d 124, 127 (Ala.Civ.App.1995). We find that the refusal to allow Harris to use the bathroom until his third request was a discretionary function under the MTCA.

¶ 16. Further, we find that the decision to grant or deny Harris’s bathroom request was for the public-policy purpose of maintaining the integrity and security of the MCT test and the testing environment. Such a purpose is crucial for administering the test in a way that gives fair and accurate results as a means of measuring student performance. Paramount to the ability of protecting the integrity and security of the test is the ability of the proctor and the administrator to have discretion to conduct the test and to control them classes. The supreme court recognized the public-policy significance of school employees being able to control and make decisions regarding their students when a football coach and the school district were granted immunity from suit under the MTCA after a student suffered from a heat stroke after the coach denied his request for a break. Harris v. McCray, 867 So.2d 188, 193 (¶ 17) (Miss.2003). If a different result were reached, school officials, in fear of lawsuit, would be unable to discipline students and maintain order because they would have to agree to every student’s request and would not be allowed to determine the legitimacy of a student’s request. Id.

¶ 17. Because the decision to allow a student permission to go to the bathroom is grounded in the public policy of maintaining student discipline, safety, and order, we find that the District is immune under the MTCA. The circuit court’s decision to enter summary judgment in favor of the District and its board members and employees was proper. Accordingly, we affirm the circuit court’s judgment.

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

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART.


author: LEE, C.J.,

text:
    Twila Dawn NUNNERY a/k/a Twila Nunnery, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00816-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.

      Shirlee Marie Fager-Baldwin, attorney for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This appeal arises from Twila Dawn Nunnery’s conviction for neglect of her adopted daughter, Jane, and touching her for lustful purposes. Nunnery now appeals, arguing: (1) the trial court erred in allowing hearsay testimony in violation of her confrontation rights and right to a fair trial; (2) the trial court erred in allowing Connie Keene’s testimony regarding her interview with Jane because it was improper, prejudicial, and inflammatory; (3) the trial court erred in not allowing the testimony of Dan Smith; (4) the trial court erred in allowing Quentin Nunnery to testify about his relationship with Nunnery prior to their marriage; (5) plain error; and (6) cumulative error.

FACTS AND PROCEDURAL HISTORY

¶ 2. Nunnery was arrested in May 2008, and, in January 2009, was indicted by a Forrest County grand jury for neglect of a child and touching a child for lustful purposes. She was tried in Forrest County Circuit Court on August 10, 2009.

¶ 3. At trial, Quentin, Nunnery’s husband, testified that while he began fondling Jane when she was young enough to be given a bath, the sexual abuse escalated in 2007 when she was twelve years old. According to Quentin, he had confessed to Nunnery in 2007 that he had fondled Jane. Quentin stated that after communicating his unhappiness about their marriage to Nunnery, Nunnery brought Jane into the bedroom, and after Nunnery demonstrated oral sex on Quentin, Jane also performed oral sex on him. Quentin testified that Nunnery had touched Jane in a sexual manner. Additionally, Quentin stated that he and Nunnery abused Jane four times during the late spring and summer of 2007.

¶ 4. Jane, who was fourteen years old at the time of trial, testified that Quentin began sexually abusing her when she was about six or seven years old. She also testified that Nunnery had demonstrated oral sex on Quentin and that she then performed oral sex on him. During this abuse, Jane, Nunnery, and Quentin were naked in Nunnery’s bed. Jane also stated that Nunnery had touched her in a sexual way. Jane could not recall the number of times the abuse occurred, nor could she recall many details about the abuse. When questioned about her lack of memory, Jane stated that she had tried to block the incidents out.

¶ 5. Keene, an investigator with the Forrest County and Perry County District Attorney’s Office, testified that she had interviewed Jane and that Jane had told her about the same accounts of abuse to which Jane had testified in court.

¶ 6. Additionally, Sergeant Gavin Guy of the Petal Police Department testified. Sergeant Guy stated that he had interviewed Nunnery twice, and that the second interview had been recorded on video. This recording was shown to the jury. In the interview, Nunnery stated that she had witnessed Quentin sexually abusing Jane twice. According to Nunnery, on the first occasion Quentin brought Jane into the bed, and while restraining Nunnery’s arm so that she could not leave, Quentin instructed Jane to perform oral sex on him. On the second' occasion, Nunnery walked into the bedroom and found Quentin performing oral sex on Jane. Nunnery stated that she did not inform the police because Quentin had threatened to take their children away from her.

¶ 7. Nunnery attempted to offer as an expert Stan Smith, a certified counselor with a doctoral degree in clinical psychology. Smith was to testify about Nunnery’s propensity to sexually abuse someone based on several tests, including the ABEL Assessment for Sexual Interest. At the time of trial, Smith had never been admitted to testify as an expert in a Mississippi court. The trial court did not allow Smith to testify.

¶ 8. Nunnery did not testify, nor did she present any evidence. The jury found Nunnery guilty of contributing to the neglect of a child and touching a child for lustful purposes. Nunnery was sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC) for the first count, neglect of a child, and to fifteen years in the custody of MDOC for the second count, touching a child for lustful purposes. The sentences were ordered to run consecutively. This appeal followed.

DISCUSSION

I. HEARSAY TESTIMONY

¶ 9. This Court applies “an abuse-of-discretion standard when reviewing claims that the trial judge erred by admitting hearsay.” White v. State, 48 So.3d 454, 456 (¶ 9) (Miss.2010) (citation omitted).

¶ 10. Nunnery argues that the trial court erred when it allowed Keene to testify to information Jane had given her during their interview. Nunnery asserts that the court should have conducted a hearing under Mississippi Rule of Evidence 803(25).

¶ 11. Rule 803(25) is also known as the tender-years exception, and provides:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

For the trial court to determine if a young declarant’s out-of-court statement is admissible under the tender-years exception, “the court must determine (1) that the declarant is a child of tender years and (2) that the time, content, and circumstances of the statement provide substantial indicia of reliability.” Veasley v. State, 735 So.2d 432, 486 (¶ 14) (Miss.1999) (internal quotations omitted). The Mississippi Supreme Court in Veasley found that “there is a rebuttable presumption that a child under the age of twelve is of tender years.” Id. at (¶ 16). When the child declarant is twelve or older, the presumption does not apply, but “the trial court must make a case-by-case determination as to whether the [declarant] is of tender years. This determination should be made on the record and based on a factual finding as to the [declarant’s] mental and emotional age.” Id. at 437 (¶ 16).

¶ 12. Here, although Nunnery raised the issue of the tender-years exception in a motion in limine, she failed to raise it at the pretrial motions hearing and failed to object on that basis during Keene’s testimony. Nonetheless, the trial court failed to make an on-the-record determination whether Jane was of tender years. We find that the trial court erred in failing to determine if Jane was of tender years and if the tender-years exception was applicable.

¶ 13. The trial court’s error does not warrant reversal, however, because “the weight of the evidence against [Nunnery] is sufficient to outweigh the harm done by allowing admission of the evidence.” Klauk v. State, 940 So.2d 954, 957 (¶ 7) (Miss.Ct.App.2006). Prior to Keene’s testimony regarding Jane’s interview, Jane testified and recounted the abuse. Keene did not testify to any information Jane gave her during the interview that was not contained within Jane’s in-court testimony. Additionally, Quentin testified to the abuse, Sergeant Guy testified that Nunnery had confessed to knowing about the abuse, and the State played the video recording of that confession. The evidence properly before the jury outweighs the harm done by the admission of the hearsay statements. Therefore, we find the admission of the hearsay statements to be harmless error.

II. KEENE’S TESTIMONY

¶ 14. Nunnery asserts that the trial court erred in allowing Keene’s testimony about her interview of Jane, because the testimony was improper, prejudicial, and inflammatory. But Nunnery fails to cite any relevant authority to support her argument. “Failure to cite to relevant authority results in a waiver of the issue on appeal.” Bennett v. State, 933 So.2d 930, 953 (¶ 86) (Miss.2006). Therefore, this issue is without merit.

III. EXPERT TESTIMONY

¶ 15. For her next issue on appeal, Nunnery argues the trial court erred in not allowing the testimony of Smith. Smith was to testify to Nunnery’s propensity to sexually abuse a child based on several tests, including the ABEL Assessment for Sexual Interest.

¶ 16. Again, Nunnery fails to cite any supporting authority, and, therefore, has waived this issue on appeal. See id. This issue is without merit.

IV. QUENTIN AND NUNNERY’S RELATIONSHIP PRIOR TO MARRIAGE

¶ 17. At trial, the State elicited testimony from Quentin about his relationship to Nunnery prior to their marriage, namely that Quentin met Nunnery when he was fifteen years old and she was thirty-one and that Nunnery was pregnant when she married Quentin, then seventeen. On appeal, Nunnery claims that this testimony was inflammatory, improper, prejudicial, and in violation of Mississippi Rules of Evidence 404(b) and 403.

¶ 18. Nunnery failed to object to this testimony at trial. Additionally, Nunnery questioned Quentin on cross-examination about their respective ages at the beginning of their relationship. “If no contemporaneous objection is made, the error, if any, is waived.” Rubenstein v. State, 941 So.2d 735, 751 (¶ 27) (Miss.2006). This issue is without merit.

V. PLAIN ERROR

¶ 19. Nunnery contends that plain error existed because: (1) her confrontation right was violated by Keene’s hearsay statements regarding Nunnery’s knowledge of Quentin’s abuse of Jane, as well as Nunnery’s own abuse of Jane, and (2) the State asked leading questions during Jane’s testimony and the trial court overruled Nunnery’s objection.

¶ 20. For this Court to apply the plain-error doctrine, “a party [must] prove that an error occurred which resulted in a manifest miscarriage of justice. This doctrine is only available when a defendant’s substantive or fundamental rights have been violated.” Starr v. State, 997 So.2d 262, 266 (1111) (Miss.Ct.App.2008) (internal quotations and citations omitted). Additionally, “[f]or the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings.” Conners v. State, 92 So.3d 676, 682 (¶ 15) (Miss.2012) (internal quotations omitted).

¶ 21. Nunnery contends that “Keene gave improper hearsay testimony regarding [Nunnery’s] knowledge [of Quentin’s abuse of Jane, as well as Nunnery’s own] abuse of [Jane,] which violated [Nunnery’s] confrontation rights.” Nunnery does not point out which statements were improper hearsay testimony. Keene’s testimony did contain hearsay statements by Jane, as noted previously. However, Jane testified at trial and was subject to cross-examination. In order for the Confrontation Clause to be triggered, the statements must be made by “a witness who does not testify at trial[.]” Id. at 683 (¶ 16). Thus, we find there is no plain error.

¶ 22. As for the leading questions asked by the State during Jane’s testimony, Mississippi Rule of Evidence 611(c) prohibits leading questions during direct examination “except as may be necessary to develop [the witness’s] testimony.” “However, the ‘classic example’ of a situation ripe for leading questions on direct is where the witness is a child.” Eakes v. State, 665 So.2d 852, 869 (Miss.1995). Here, it cannot be said that allowing the State to ask leading questions that were necessary to develop Jane’s testimony was “a manifest miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings.” Conners, 92 So.3d at 682 (¶ 15). Therefore, this issue is without merit.

VI. CUMULATIVE ERROR

¶ 23. Nunnery argues that the cumulative effect of multiple errors deprived her of a fundamentally fair trial.

¶ 24. Under the cumulative-error doctrine, the non-reversible errors may combine to create a reversible error because the defendant has been deprived of a fundamentally fair trial. Ross v. State, 954 So.2d 968, 1018 (¶ 138) (Miss.2007). While we found admittance of Keen’s hearsay testimony to be a non-reversible error, we found no other errors to combine to create a reversible error. Therefore, this issue is without merit.

¶ 25. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, NEGLECT OF A CHILD, AND SENTENCE OF TEN YEARS, AND COUNT II, TOUCHING OF A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF FIFTEEN YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The name of the victim has been changed to protect her identity.

      . Quentin was arrested in December 2007, and pleaded guilty to sexual battery, in violation of Mississippi Code Annotated section 95-3-95(2) (Rev.2006). At the time of trial, he had not been sentenced.


text:
    Richard LACOSTE, Appellant v. SYSTEMS & SERVICES TECHNOLOGIES, INC., Appellee.
    No. 2012-CA-01922-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.

      Floyd J. Logan, Gulfport, attorney for appellant.
    Stephen E. Gardner, Jackson, Frank Edwin McRae III, attorneys for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This is an appeal of a replevin — a legal action to gain possession of personal property wrongfully held by another. “Although replevin was recognized in early common law, its use has been controlled and regulated by statute for several hundred years.” Mississippi’s replevin statute gives would-be possessors two procedural options — (1) request that the court issue a writ to seize the property from the defendant or (2) ask the court to summon the defendant for a hearing to determine who has the right to possess the property. Because, under the first option, the plaintiff gets the property based on his own unchallenged allegations, the statute requires the plaintiff first post a bond before the writ is issued. But the second option does not require a bond, since the court does not award possession until after it considers each party’s claims to the property.

¶ 2. Richard Lacoste argues the “failure” by Systems & Services Technologies, Inc. (SST) to post a bond renders invalid the judgment awarding it possession of a recreational vehicle (RV) securing a debt Richard had failed to pay. However, SST clearly used the second option for its re-plevin, so no bond was required.

¶3. Further, we find SST sufficiently supported its claim for possession of the RV and attorney’s fees under the loan agreement. There was no contradictory assertion, let alone evidence, from Richard that he did not owe the debt. Nor did he show he was current on his payments and was not wrongfully detaining the RV. Thus, we affirm the circuit court’s award of possession of the RV to SST, as well as its award of attorney’s fees to SST under the loan agreement.

Background Facts and Procedural History

¶ 4. In 1999, Richard and Linda Lacoste financed the purchase of a used RV with a secured loan assigned to Bank One. In 2009, the Lacostes stopped making payments, despite still owing $62,642.43, plus additional interest. By this time, Bank One had merged with JP Morgan Chase Bank, making JP Morgan Chase the owner of the Lacostes’ loan and lienholder of the RV. JP Morgan Chase had appointed SST power of attorney to service the Lacoste loan, authorizing SST to collect payments and, in case of default, the collateral.

¶ 5. In June 2010, SST exercised its power of attorney on behalf of JP Morgan Chase and commenced a replevin. Instead of seeking immediate seizure of the RV under Mississippi Code Annotated section 11-37-101 (Rev.2012), SST elected to follow the procedure of section 11-37-131 (Rev.2012) and summon the Lacostes to court. Possession under this latter course necessarily takes a little longer, as a hearing and a determination of the merits must precede an award of possession. And here, the case drug on until October 2012. So SST had to wait more than two and a half years before finally being granted the right to possess the RV, which by that time had depreciated in value to under $20,000.

¶ 6. Back in June 2010, SST utilized section 11-37-131 and asked the circuit court to issue summonses to the Lacostes to appear before the court to determine the rights to the RV as between SST and them. SST also prayed for attorney’s fees, under the terms of the loan agreement. While the summons against Linda was never executed, Richard was properly summoned. He filed an answer to SST’s complaint, along with a motion to dismiss. And he was notified of a hearing in February 2011.

¶ 7. Following this February hearing, the circuit court entered a final judgment awarding SST possession of the RV. But within ten days of the judgment, Richard moved to set aside the resulting writ. The circuit court stayed the writ, pending a second hearing. During the time the writ was being stayed, Richard reasserted his motion to dismiss SST’s complaint. SST in turn moved for summary judgment. Richard responded by moving to strike the affidavits SST had offered in support of summary judgment.

¶8. In June 2011, the circuit court entered a second “final judgment.” The judge found there were no material facts in dispute and that SST was entitled to possession as a matter of law, so he once again granted SST possession of the RV. However, Richard moved to set aside the judgment once more, this time arguing his attorney had not been notified of the summary-judgment hearing. He also claimed the judge had failed to rule on his motion to dismiss and motion to strike. And once again, the circuit court agreed to set aside the judgment of possession and hold a hearing.

¶ 9. Another hearing was set for October 11, 2012. Thereafter, on October 22, 2012, the circuit judge entered three orders. The first dismissed the complaint against Linda, finding she had never been properly summoned. The second denied Richard’s motion to strike SST’s affidavit and motion to dismiss SST’s complaint. The third found SST’s motion for summary judgment well-taken and awarded SST immediate possession of the RV and “reasonable attorney’s fees in the amount of $7,461.81 for efforts required to recover the above property.”

¶ 10. Richard appeals the second and third orders — the denial of his motion to strike SST’s affidavits, the denial of his motion to dismiss SST’s complaint, and the award to SST of possession of the RV and attorney’s fees under the loan agreement.

Discussion

I. “Failure” to Post Bond

¶ 11. “Replevin is one of the most ancient and well-defined writs known to the common law.” Three States Lumber Co. v. Blanks, 133 F. 479, 481 (6th Cir.1904). But despite its deep common-law roots, replevin is now purely governed by statute. Rawles v. Ogden, 284 So.2d 532, 534 (Miss.1973).

¶ 12. Richard first argues the circuit court failed to follow the replevin statute by not requiring SST to post bond. In support, Richard cites Mississippi Code Annotated section 11-37-101, which requires a replevin plaintiff to post a bond double the value of the personal property when “immediate possession ” of the property is sought. (Emphasis added). But this route is just one of two replevin options authorized by statute. And here, SST did not seek immediate possession, so section 11-37-101’s bond requirement did not apply.

¶ 13. As mentioned, Mississippi’s re-plevin statute gives plaintiffs like SST two options when commencing a replevin — (1) seek immediate possession under section 11-37-101 or (2) wait until the court determines the plaintiffs right to possess under section 11-37-131. Only under the first “immediate-possession” option is a bond required. This is because, when an action is commenced under section 11-37-101, the court issues a writ directing the sheriff to seize the property from the defendant and turn it over to the plaintiff. Since the writ issues solely on the plaintiffs unchallenged allegations of his right to possess, the statute requires he post a bond double the value of the property, to protect the defendant if it turns out the plaintiffs immediate seizure of the property was wrongful. Miss.Code Ann. § 11-37-101(e).

¶ 14. However, when an action is commenced under section 11-37-131, instead of a writ, the court issues a summons. This summons directs the defendant “to appear for a final hearing to determine the rights of the parties as to possession.” Miss.Code Ann. § 11-37-131. Because, under this option, possession is awarded after an adjudication of the merits of the plaintiffs claim, there is not the same concern that the defendant may be damaged by the plaintiffs wrongful possession. Thus, no bond is required. See id.

¶ 15. Contrary to Richard’s assertion, SST clearly filed a section 11-37-131 re-plevin. In its complaint, it asked the court to issue summonses to Richard and Linda Lacoste. It did not ask the court to issue a writ directed to the sheriff to seize the RV. And the court’s award of possession to SST followed a hearing in which the court determined the evidence indisputably entitled SST to possession. As SST’s eventual award of possession of the RV was anything but “immediate,” the circuit court was under no statutory requirement to set a bond amount or require SST to post bond when it issued its third “final judgment” awarding SST possession.

II. Award of Summary Judgment

A. Relationship Between Replevin Statute and Rules of Civil Procedure

¶ 16. Replevin is governed by Mississippi Code Annotated sections 11-37-101 to -157 (Rev.2012), and its proceedings are “supplemented only by so much of [the Mississippi Rules of Civil Procedure] as are not inconsistent with those statutes.” Hall v. Corbin, 478 So.2d 253, 256 (Miss.1985). Here, the circuit court used Rule of Civil Procedure 56 to award SST possession via summary judgment. So as a preliminary matter, we ask whether this procedure under the rules supplemented or was inconsistent with the procedures under our replevin statutes.

¶ 17. Ideally, Rule 56 should never come into play in a replevin. As the re-plevin statute directs: “All replevin actions shall be treated by the court as preference cases and shall be heard on the merits at the earliest possible date, with the view of reaching an early determination as to the rights of the parties to the property in question.” Miss.Code Ann. § 11-37-145 (Rev.2012) (emphasis added). And “[w]here process in any replevin action is by way of a summons,” a trial on the merits may be held as soon as five days following process. Miss.Code Ann. § 11— 37-139 (Rev.2012). Thus, the statute contemplates an expedited cause of action, in which the issue of possession is determined as soon as possible.

¶ 18. But here there was quite a bit of protraction. The first hearing was not until February 2011 — eight months after Richard was first summoned. And the “final judgment” that issued from that hearing was stayed to accommodate Richard’s claims of lack of notice. Though over the ensuing year and a half Richard was given ample opportunity to defend against SST’s claims, Richard never made assertions, let alone presented evidence, that contradicted SST’s allegation that he was in default under the loan agreement. Therefore, we find summary judgment was an appropriate means to determine the possessory rights to the RV.

¶ 19. “[S]ummary judgment roots out mere accusation and conjecture in favor of merit and ultimately functions to force a non-movant to present some modicum of material evidence.” Stuckey v. The Provident Bank, 912 So.2d 859, 866 (¶ 12) (Miss.2005). When forced to present material evidence to challenge the merits of SST’s claim, Richard brought none. So no full trial by the court on SST’s replevin was required. “Summary judgment cannot substitute for a trial to resolve disputes of material fact, but neither should a trial on undisputed material facts substitute for a summary judgment.” Wolf v. Stanley Works, 757 So.2d 316, 319 (¶ 8) (Miss.Ct.App.2000) (citing M.R.C.P. 56). After two and a half years and multiple hearings, the circuit judge was well familiar with the claims and documentary evidence in this case. See Miss.Code Ann. § 11-37-147 (Rev.2012) (directing all replevin actions to be tried by the court without a jury, unless one of the parties requests in writing a jury trial). Determining there were no material facts in dispute and SST was entitled to possession of the RV as a matter of law, we find the judge’s use of Rule 56 supplemented — and was not inconsistent with — section 11-37-145’s requirement that replevins be resolved as early as possible.

B. Evidence in Support of Summary Judgment

¶ 20. This brings us to Richard’s second argument — that the circuit judge erred in granting summary judgment because SST, through the affidavits and exhibits attached to its motion for summary judgment, failed to prove it was entitled to possession of the RV as a matter of law.

¶ 21. As the moving party, to be entitled to summary judgment, SST had the burden to show through documentary evidence that there were no material facts in dispute and it was entitled to a judgment of possession as a matter of law. See M.R.C.P. 56(c). And as the replevin plaintiff, SST had the burden to prove it had the present right to the possession of the Lacostes’ RV. See Robinson v. Friendly Fin. Co. of Biloxi, 241 Miss. 239, 243, 130 So.2d 256, 257 (1961). SST did so primarily through the attached affidavit of its employee and agent authorized to speak on its behalf, Valerie Wedding. Through Wedding’s affidavit we learn that SST is the authorized servicing agent for JP Morgan Chase, successor by merger to Bank One. And the title to the RV shows that Bank One was the lienholder on the RV. So when Bank One merged into JP Morgan Chase, JP Morgan Chase became the lienholder of the Lacostes’ RV.

¶ 22. By written power of attorney — a copy of which Wedding attached to her affidavit — JP Morgan Chase authorized SST to receive payments from the La-costes and, in case of default, collect the collateral. According to SST’s records— also attached to Wedding’s affidavit — the Lacostes have been in default since September 2009, owing $62,642.34 on the principal alone.

¶ 23. Richard attacks the affidavit, saying it should have been stricken as non-compliant with Rule 56(e). While we review the grant of summary judgment de novo, Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 762 (Miss.1989), we review the denial of a motion to strike an affidavit in support of summary judgment for abuse of discretion. Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 832 (¶ 51) (Miss.2009) (citation omitted). And here we find the judge did not abuse his discretion in not striking Wedding’s affidavit.

¶ 24. One of Richard’s criticisms of Wedding’s affidavit is that it did “not state that Wedding is authorized to make factual allegations on the affidavit on behalf of SST[J” But in her affidavit, Wedding attested she was an “authorized agent” of SST. Since she also represented that the facts to which she attested were within her personal knowledge and that she was legally competent to testify, Wedding’s affidavit met all the requirements of Rule 56(e).

¶ 25. Richard also criticizes the written power of attorney attached to Wedding’s affidavit. Though he claims it did not specifically list the Lacostes’ loan as one that SST was authorized to service, the power of attorney expressly covers “a certain recreational vehicle portfolio.” And Wedding attested it was within her personal knowledge that the Lacostes’ RV was part of that portfolio. Further, the fact Wedding had access to the Lacoste’s payment records and amortization schedule— which she attached to her affidavit — supports her assertion that SST had power of attorney from JP Morgan Chase to service the Lacoste loan. Cf. Brown v. Credit Ctr., Inc., 444 So.2d 358, 364 (Miss.1983) (holding that “an undisputed affidavit from the creditor’s manager that the account is due and is unpaid[,] where accompanied by the account or ledger sheet which is obviously a business record, entitle[d] the creditor to summary judgment”).

¶ 26. Richard also complains that SST failed to show JP Morgan Chase actually merged with Bank One to become the lienholder on the RV. But the power of attorney explains that JP Morgan Chase is the successor by merger to Bank One. So we disagree with Richard that it is unproven or disputed that JP Morgan Chase is the current lienholder. JP Morgan Chase, by right of being successor lienholder, is entitled to possession of the RV. And SST, having been expressly authorized to repossess the RV on behalf of JP Morgan Chase, was authorized to initiate a replevin on JP Morgan Chase’s behalf. See Keefe v. City of Hollywood, 487 So.2d 311, 311 (Fla.Dist.Ct.App.1986) (holding that agent granted power of attorney by principal, who had right to possess personal property, could initiate replevin on principal’s behalf).

¶ 27. As the non-moving party to SST’s summary-judgment motion, Richard had a burden too — the burden of rebuttal. See Price v. Purdue Pharma Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006) (citation omitted). Once SST satisfied its burden that no material factual disputes existed, the burden shifted to Richard to “set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “Mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment.” Brown, 444 So.2d at 364 (quoting Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967)).

¶ 28. We find Richard’s argument to be similar to the debtor in Brown, who “insist[ed] that, with respect to Credit Center’s claim on the ... note for the outstanding balance of $268.60, there are genuine issues of material fact. What those issues are, however, we know not.” Id. Like the debtor in Brown, Richard “offers no reason in law why the debt is not due and why judgment ought not be entered against [him] thereon. [He] is merely putting off the evil day of [repossession] as long as possible.” Id.

¶ 29. Because SST met its burden to prove no material facts were in dispute and that it was entitled as a matter of law to possess the RV on behalf of JP Morgan Chase, we affirm the grant of SST’s motion for summary judgment.

III. Award of Attorney’s Fees Under the Loan Agreement

¶ 30. As part of our holding, we also affirm the award to SST of $7,461.81 in reasonable attorney’s fees.

¶ 31. Richard suggests SST was not entitled to attorney’s fees because it failed to prove Richard’s actions in refusing to turn over the RV warranted punitive damages. It is true “that attorneys’ fees in a replevin action are not recoverable, except when punitive damages are allowed.” Standard Fin. Corp. v. Breland, 249 Miss. 413, 428, 163 So.2d 232, 239 (1964). But our replevin statute is explicit that an action for replevin “shall be cumulative and in addition to all other actions presently available at law or in equity.” Miss.Code Ann. § 11-37-157 (Rev.2012). SST’s request for attorney’s fees was not based on the replevin but instead on its separate claim for “attorney’s fees pursuant to the contract ]” — i.e., the loan agreement, which SST attached to its complaint, in compliance with Mississippi Rule of Civil Procedure 10(d).

¶ 32. Because SST’s right to attorney’s fees was in addition to its right to possess the RV, SST did not have to prove it was entitled to punitive damages to be awarded attorney’s fees. As the circuit court found SST was indisputably entitled under the loan agreement to attorney’s fees and that the $7,461.81 in attorney’s fees was reasonably incurred while SST tried to collect the collateral, we find no error in the court awarding SST’s claim for fees under the loan contract.

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

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

      . Gen. Motors Acceptance Corp. v. Fairley, 359 So.2d 1386, 1387-88 (Miss.1978).


text:
    Demetric RATCLIFF a/k/a Demetric Tarell Ratcliff, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01911-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.

      Demetric Ratcliff, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES, MAXWELL and JAMES, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Demetric Ratcliff waited nearly a decade before seeking post-conviction relief (PCR) from his 2003 guilty plea to selling cocaine. In 2012, he claimed for the first time that his indictment was defective and that a conflict of interest existed because the presiding judge, while previously serving as an assistant district attorney, had signed Ratcliffs indictment. After review, we find Ratcliffs failure to timely raise these challenges within three years, as mandated by statute, resulted in them being properly time-barred by the circuit judge.

¶ 2. And even had he not procedurally defaulted, we find his indictment was not defective for charging that he “wilfully” instead of “knowingly” sold cocaine, since both terms carry the same meaning. Further, Ratcliff explicitly waived, on the record, any potential conflict he may have had involving the former prosecutor presiding as judge in his case. We therefore affirm.

Facts and Procedural History

¶ 3. In 2001, a grand jury indicted Rat-cliff for sale of cocaine. The indictment was signed by the assistant district attorney at the time, Robert Helfrich, who later became circuit judge. On August 25, 2003, Ratcliff — after expressly waiving a potential conflict of interest regarding Helfrich presiding as judge in his case — pled guilty to selling cocaine. He was sentenced to serve fifteen years.

1f 4. But almost nine years later, on May 18, 2012, Ratcliff filed a PCR motion. Ratcliff sought to vacate his conviction and sentence, urging his indictment was defective and that Judge Helfrich should not have handled his guilty plea. On December 10, 2012, Judge Helfrich entered an order summarily dismissing Ratcliffs PCR motion as time-barred. Ratcliff appealed.

Standard of Review

If 5. “We review the dismissal of a PCR motion under an abuse-of-discretion standard.” Williams v. State, 110 So.3d 840, 842 (¶ 11) (Miss.Ct.App.2013). Reversal is proper only “if the circuit court’s decision was clearly erroneous.” Id. “We review questions of law de novo.” Id.

Discussion

I. Time-Bar

¶ 6. Ratcliff first insists the circuit court erred in summarily dismissing his PCR motion as untimely. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), when a defendant enters a guilty plea, a PCR motion must be filed within three years of entry of the judgment of conviction. See Miss.Code Ann. § 99-39-5(2) (Supp.2013). Ratcliff pled guilty on August 25, 2003, and the court entered the judgment of conviction on August 28, 2003. So Ratcliff had three years from that date to file a PCR motion. Because he waited until May 18, 2012 — almost nine years after his judgment of conviction was entered — to seek PCR review, his motion was properly dismissed as time-barred.

¶ 7. Ratcliff is correct that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010). But his “mere assertion of a constitutional right violation” does not trigger the exception. Wicker v. State, 16 So.3d 706, 708 (¶ 5) (Miss.Ct.App.2009). To the extent he seeks to circumvent the time-bar based on his challenge to the indictment and his conflict claim, we find neither of these claims are viable. So his PCR challenge remains time-barred.

II. The Indictment

¶ 8. Still, we briefly touch on Ratcliffs substantive arguments. His first is that his indictment was defective, because it charged he “willfully,” instead of “knowingly,” sold cocaine. As support, he cites Mississippi Code Annotated section 41-29-139(a)(1) (Rev.2013), which makes it “unlawful for any person knowingly or intentionally ... [t]o sell ... a controlled substance[.]” (Emphasis added).

¶ 9. The indictment alleged that on September 6, 2000, Ratcliff “[d]id unlawfully, wilfully[,] and feloniously, without authority of law, deliver and sell ... 30.8 grams of [cjocaine, a Schedule II controlled substance,” to an officer for $1,200. (Emphasis added). While the term knowingly was not used, our supreme court has emphasized that “it is inconceivable that an act willfully done is not also knowingly done.” Moore v. State, 676 So.2d 244, 246 (Miss.1996) (emphasis added) (quoting Ousley v. State, 154 Miss. 451, 122 So. 731, 732 (1929)). “Stated differently, ‘willfully’ means ‘knowingly.’ ” Id.; see also Boyd v. State, 977 So.2d 329, 335 (¶ 22) (Miss.2008) (holding that “[a]n act ‘willfully’ done is an act ‘knowingly’ and ‘intentionally’ done”). Essentially, “ ‘wilful’ means nothing more than doing an act intentionally.” Moore, 676 So.2d at 246.

¶ 10. More recently, we found no deficiency in an indictment that charged the defendant had “ ‘wilfully, unlawfully, and feloniously’ committed the offense,” because it was “in substancef ] the same as an allegation that the act was ‘knowingly or intelligently’ committed.” Hamilton v. State, 44 So.3d 1060, 1064-65 (¶ 10) (Miss.Ct.App.2010). Because Ratcliffs indictment alleged that he had “unlawfully, wil-fully[,] and feloniously” sold cocaine, we find the drug-sale offense was sufficiently pled.

III. Alleged Conflict

¶ 11. Ratcliffs other assertion is that Judge Helfrich, who had signed his indictment as a prosecutor, was prohibited from later presiding over Ratcliffs 2003 guilty plea and subsequent collateral challenge to the plea. As Ratcliff now sees it, Judge Helfrich should have recused himself. But this recent allegation is rebuffed by the record of Ratcliffs plea hearing.

¶ 12. Indeed, Judge Helfrich was very much up front with Ratcliff, noting “there could be some appearance of impropriety or some conflict if I was prosecutor at the time of this event and now I’m sitting as the judge taking this plea. If you would like, I will recuse myself and ask the Mississippi Supreme Court to appoint another judge to hear your case.” The judge advised Ratcliff he could “discuss this with [his] attorney” and could “waive any potential conflict and we will go forward.” Rat-cliffs attorney represented that Ratcliff “understands that, Your Honor, and he has no problem and he understands you’ll be the judge and he’s waived it and reaffirms that.” To be sure, Judge Helfrich asked Ratcliff, “And that’s your decision, correct?” And Ratcliff responded, “Yes, sir.”

¶ 13. We find this sort of conflict of interest was waivable and indeed was expressly waived by Ratcliff. Under Mississippi Code Annotated section 9-1-11 (Rev.2002):

The judge of a court shall not preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, or wherein he may have been of counsel, except by the consent of the judge and of the parties.

(Emphasis added). See also Holmes v. State, 966 So.2d 858, 860-61 (¶ 8) (Miss.Ct.App.2007) (citing Miss.Code Ann. § 9-1-11) (“As with constitutional disqualification, a judge may preside despite statutory disqualification if the judge and parties consent.”).

¶ 14. After review, it is clear Ratcliff knowingly and voluntarily waived any conflict involving Judge Helfrich presiding over his plea hearing, which is permitted by section 9-1-11. While Ratcliff also insists the judge should not have handled his PCR motion, Ratcliff neither withdrew consent nor asked Judge Helfrich to recuse. Because Smith failed to raise re-cusal in his PCR motion, it was not before the circuit judge, and is proeedurally barred from our review. See Bell v. State, 117 So.3d 661, 663 n. 1 (Miss.Ct.App.2013) (citing Hamilton, 44 So.3d at 1065 (¶ 15)). Furthermore, the nine-year-old claim was time-barred with no exception applicable; thus, no decision other than dismissal could have been reached. We affirm.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.