source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ramon TRAVIS.
    No. 2012-KA-0836.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 27, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee, Ramon Travis.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   TERRI F. LOVE, Judge.

11 This appeal arises from the State seeking review of the trial court’s granting of Ramon Travis’ motion to quash based on the expiration of the two-year prescriptive period for commencement of trial. For the reasons that follow, we find that the trial court did not abuse its discretion in granting the motion to quash, as the two-year prescriptive period expired and affirm.

FACTUAL BACKGROUND

The facts of this case are immaterial to the disposition of the issue presented for this Court’s review.

PROCEDURAL HISTORY

Ramon Travis was initially charged with possession of a firearm by a convicted felon on January 19, 2006 under case #463-720 in section “L.” On May 22, 2007, the day of trial, the State of Louisiana (“State”) entered a nolle prosequi.

On July 10, 2007, the State reinstated the charges under the current case number, and an alias capias was issued. The case was transferred back to section “L,” a number of status hearings were set without the presence of Mr. Travis or his attorney.

The May 9, 2008 minute entry states that Mr. Travis’ attorney, Cliff Stoutz, appeared without Mr. Travis and that the trial court recalled the alias capias. No new date was set.

Approximately two and one-half years transpired before any further action on the case. On November S, 2010, the State requested that the trial court set a hearing for November 15, 2010. Attorney Stoutz appeared without Mr. Travis. The case was reset for December 20, 2010. At the December 20, 2010 hearing, the trial court issued an alias capias for Mr. Travis’ arrest.

Mr. Travis was arrested pursuant to the alias capias on May 5, 2011. On November 18, 2011, Mr. Travis filed a motion to quash asserting that the time limitation or prescriptive period for commencement of trial expired. The trial court granted the motion to quash and the State’s appeal followed.

MOTION TO QUASH

The State alleges that the trial court erred in granting Mr. Travis’ motion to quash. A trial court’s ruling on a motion to quash on the ground that the time limitation or prescriptive period for commencement of trial has expired is reviewed under an abuse-of-discretion standard. See State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206.

The State re-instituted proceedings against Mr. Travis on July 10, 2007, by filing a bill of information charging him with possession of firearm by a convicted felon, which is a felony punishable by imprisonment at hard labor from ten up to twenty years. La. R.S. 14:95.1; La.C.Cr.P. art. 382(A). Louisiana Code of Criminal Procedure article 578(A)(2) sets forth the time period in which the State was required to bring Mr. Travis to trial. That article provides that in non-capital felony cases, “... no trial shall be commenced ... after two years from the date of institution of the prosecution.” La.C.Cr.P. art. 578(A)(2). Pursuant to the article, barring any interruption or suspension of this time limitation, the State had until July 11, 2009, to bring Mr. Travis to trial.

Mr. Travis’ motion to quash was based on the ground that the State failed to bring his case to trial within the two-year time limitation set forth in La.C.Cr.P. art. 578(A)(2). Mr. Travis averred that he never received actual notice to appear at any time and that he never received notice that the dismissed charges were reinstituted.

“The responsibility of proving timely prosecution rests with the state.” State v. Paul, 11-1347, p. 3 (La.App. 4 Cir. 10/3/12), - So.3d -, -. “When defendant brings an apparently meritorious motion to quash based on prescription, the state bears a heavy burden” to show a legal cause for the delay. State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286.

The State contends that prescription in this case was interrupted as provided for in La.C.Cr.P. art. 579, which provides, in part:

A. The period of limitation established by Article 578 shall be interrupted if:
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.

The State alleges that Mr. Travis received actual notice at the May 9, 2008 hearing. The minute entry states that Attorney Stoutz appeared without Mr. Travis and that the trial court recalled the alias capi-as. The State alleged that the logical inference from the minute entry is that Attorney Stoutz agreed to accept service on behalf of Mr. Travis. Otherwise, the State claims that the trial court would not have recalled the alias capias. The State then suggests that Mr. Travis should bear the burden of any further delay of the prosecution because he was aware that charges were pending against him, but never appeared in court until he was arrested on the later alias capias.

In granting Mr. Travis’ motion to quash, the trial court issued the following ruling:

The defense has filed a motion to quash for expiration of time limitations. The August 21, 2007 alias capias was apparently issued because the defendant did not appear — service in the record indicates “subject moved”, although nothing in open court indicates the judge was informed by the State or defense of that fact. The alias capias was recalled on May 9, 2008, no new date was set. The case languished for over two years with no action by the State until November 10, 2010, when the State requested that the matter be set for a hearing. The State’s response to the more than two year gap in time is conjecture and supposition (which may or may not be correct), but not based upon any fact which excuses the ultimate burden on the State under La.C.Cr. P. art. 578 to bring the defendant to trial within two years. Therefore, the motion to quash is GRANTED.

The State’s argument lacks merit. The trial court determined that the State’s argument was not based on any fact which could excuse its burden under La.C.Cr. P. art. 578, and that the argument was not based on anything other than conjecture or supposition. The record does not contain evidence that Mr. Travis failed to appear after receiving actual notice. Therefore, we find that the trial court did not abuse its discretion in granting Mr. Travis’ motion to quash, as the two-year prescriptive period expired.

| DECREE

Accordingly, for the above-mentioned reasons, we find that the trial court did not abuse its discretion in granting Mr. Travis’ motion to quash and affirm.

AFFIRMED

      . A written order recalling the alias capias appears in the record.

      . The record does not reflect that Attorney Stoutz was in contact with Mr. Travis or had knowledge of Mr. Travis’ location.


author: KEATY, Judge.

text:
    Joseph Charles CARPENTER v. ALLIED WASTE.
    No. 12-1264.
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2013.

      C. Luke Edwards, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Joseph Charles Carpenter.
    Sidney F. Lewis, David K. Theard, Jones, Walker, Waechter, Poitevent, Car-rére & Denégre, New Orleans, LA, for Defendant/Appellee, BFI Waste Services, LLC d/b/a Allied Waste Services of Acadi-ana-Scott.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

Plaintiff appeals from the trial court’s granting of summary judgment in favor of Defendant. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Defendant, BFI Waste Services, LLC d/b/a Allied Waste Services of Acadiana-Scott (Allied Waste), is engaged in commercial and residential garbage collection. Plaintiff, Joseph Charles Carpenter (Carpenter), was employed by Allied Waste as a garbage truck driver. Carpenter allegedly pulled a muscle in his back in 2006 and was placed on light-duty work which consisted of driving a pickup truck and a boom truck. In August 2007, Carpenter allegedly suffered a second injury to his lower back while at work and could no longer perform his light-duty work.

In December 2007, Carpenter was placed on twelve weeks leave pursuant to the Family and Medical Leave Act (FMLA), 29 U.S.C. 2612. When Carpenter failed to return to regular-duty work at the end of his twelve weeks of FMLA leave, he was placed on additional company leave for fourteen weeks. When he was unable to return from his FMLA leave and the extended leave which totaled twenty-six weeks, his employment was terminated effective June 26, 2008. Carpenter was eligible for re-hire.

On August 13, 2008, Carpenter filed a Disputed Claim for Compensation (Form 1008) with the Louisiana Department of Labor (LDOL) seeking workers’ compensation benefits under the Louisiana Workers’ Compensation Law (the Act) as a result of his alleged 2006 and 2007 work-related injuries. See La.R.S. 23:1020.1. A Judgment of Approval of Settlement (settlement) was signed and entered on September 6, 2011, with respect to Carpenter’s workers’ compensation claim. Carpenter received a full and final lump sum of $200,000 for his injury. The settlement specifically discharged Allied Waste from any and all liability, including “penalties,” “tort claims,” “causes of action,” and “employment discrimination or any statutory or jurisprudential remedy under the provisions of La. R.S. 23:1021 et seq.”

Prior to the signing of the settlement, Carpenter filed a Petition for Wrongful Termination against Allied Waste on September 19, 2008. Allied Waste filed a motion for summary judgment which was heard on September 28, 2009. The trial court deferred judgment on the motion pending resolution of Carpenter’s workers’ compensation claim. Upon the settlement of Carpenter’s workers’ compensation claim, Allied Waste re-filed its motion for summary judgment, which was heard on June 11, 2012. The trial court granted Allied Waste’s motion based upon Carpenter’s admission that he could not return to work. Carpenter appeals the trial court’s granting of summary judgment in favor of Allied Waste.

DISCUSSION

“Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” La. Safety Ass’n of Timbermen-Self Insurers Fund v. La. Ins. Guar. Ass’n, 09-23, p. 5 (La.6/26/09), 17 So.3d 350, 353 (citing Power Mktg. Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662).

I. Unlawful Termination

Carpenter alleges he sustained a work-related injury to his back and was denied medical treatment that had been recommended by his treating physician, Dr. Geoffery Mire. Carpenter contends that because he could not receive the medical treatment, he was unable to return to work, and he was terminated from employment. As such, Carpenter contends he was terminated because Allied Waste refused to provide medical treatment, i.e., physical therapy, for his work-related injury which precluded him from returning to work.

In opposition, Allied Waste contends Carpenter was afforded generous leave but was unable to return to work. It further contends that Carpenter’s discharge was specifically authorized by La. R.S. 23:1361(B) of the Act which provides, in pertinent part, “[n]othing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.” Finally, Allied Waste submits that Carpenter’s argument that his claim should succeed based on Allied Waste’s refusal to authorize continued therapy fails in light of Carpenter’s own admissions that the therapy was doing no good and that he could never drive a garbage truck again.

We find the trial court did not err in granting Allied Waste’s motion for summary judgment as Carpenter was lawfully discharged in light of his physical inability to return to work. It is undisputed that Carpenter was discharged after twenty-six weeks of leave because of his admitted inability to perform his regular job duties and the light-duty work provided by Allied Waste. Carpenter admits on the face of his petition and in his brief that he “was unable to recover from his injuries and was precluded from returning from his employment.” Carpenter should have known that he had no right to an indefinite leave or to light-duty work on an indefinite basis.

Carpenter’s only argument is that Allied Waste could not terminate him because it refused to provide the physical therapy needed to help him recover. There is absolutely no authority for this argument. In essence, Carpenter argues that an employer cannot dispute an employee’s workers’ compensation claim without violating the workers’ compensation retaliation provisions. Furthermore, Carpenter admitted that: (1) the therapy was not helping; (2) he was able to perform therapy at home; and (3) regardless, he could never drive a truck again.

The Act states that “[n]o person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter.... Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.” La.R.S. 23:1361(B). “To maintain an action for retaliatory discharge under La.R.S. 23:1361, the employee must prove, by a preponderance of the evidence, that he was terminated because he asserted a claim for workers’ compensation benefits.” Graham v. Amberg Trucking, Inc., 07-573, p. 4 (La.App. 3 Cir. 10/31/07), 969 So.2d 718, 721 (citing Penn v. La.-1 Gaming, 06-928 (La.App. 5 Cir. 4/11/07), 954 So.2d 925). “The [workers’ compensation retaliation] statute clearly provides that termination because of the employee’s inability to work due to injury is not retaliatory.” McDonald v. Television Mgmt., Inc., 93-2493, p. 6-7 (La.App. 4 Cir. 9/29/94), 643 So.2d 802, 805, writ denied, 94-2642 (La.12/16/94), 648 So.2d 393. We find Carpenter’s claim for wrongful discharge based on his physical inability to perform his job duties due to his injuries must fail as a matter of law. As such, the trial court’s ruling was not manifestly erroneous.

II. Settlement

Carpenter argues that his present tort claim, i.e., his Petition for Wrongful Termination, was not released based upon the workers’ compensation settlement. Carpenter contends the settlement limits the release to those remedies available under La.R.S. 23:1021 pursuant to La.R.S. 23:1271.

In opposition, Allied Waste contends that Carpenter’s wrongful termination claim was extinguished when he signed the release for his workers’ compensation claim and that any claim against Allied Waste in tort, based on its contesting Carpenter’s workers’ compensation claim, is not allowed under Louisiana law.

The jurisprudence provides that a tort claim against an employer may be settled along with a contested workers’ compensation claim. See Watkins v. Johns-Manville Corp., 458 So.2d 212 (La.App. 5 Cir.1984). In Spencer v. Howard, Weil, Labouisse and Friedrichs, Inc., 543 So.2d 547 (La.App. 4 Cir.1989), a plaintiff received $30,000 in her workers’ compensation case. She subsequently filed a workers’ compensation retaliation suit. The court noted that her workers’ compensation release “contained no reservation of rights to pursue the retaliatory discharge claim, nor did it exclude that cause of action from the effects of the release.” Id. at 551. The Spencer court cited Condoll v. Johns-Manville Sale Corp., 448 So.2d 169 (La.App. 5 Cir.1984) for the proposition that a general release may cover all present and future causes of action arising out of an employer-employee relationship. In Spencer, the failure of the plaintiff to reserve her right to pursue the retaliation claim in the face of the broad language in the judgment and release led the court to conclude that no other interpretation but that the tort action was contemplated and provided for by the express language of the judgment and release.

Like the release in Spencer, the settlement here released Allied Waste from “tort claims or causes of action, and/or for employment discrimination.” It also released any past, present, or future penalty under the Act. As such, the release effectively served to extinguish Carpenter’s current claim. The trial court’s judgment was not manifestly erroneous.

DECREE

The judgment of the trial court is affirmed. All costs of this appeal are assessed against Joseph Charles Carpenter.

AFFIRMED.

      . This suit, which is entitled Petition for Wrongful Termination, does not allege retaliatory discharge. Indeed, in his petition, Carpenter neither cites the anti-retaliation provision of the Act, nor does he allege he was discharged because he asserted a claim for workers' compensation benefits. However, his brief on appeal refers to La.R.S. 23:1361 which encompasses retaliatory discharge.


author: CHANDLER, Justice,

text:
    Dante Lamar EVANS v. STATE of Mississippi.
    No. 2009-CT-00854-SCT.
    Supreme Court of Mississippi.
    Jan. 31, 2013.
    Rehearing Denied April 11, 2013.

      Robert B. McDuff, Bryan A. Stevenson, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court:

¶ 1. On March 12, 2009, Dante Lamar Evans was convicted of the murder of his father, Darold Evans, and was sentenced as an adult to a mandatory term of life imprisonment. The Court of Appeals affirmed Dante’s conviction and sentence. Evans v. State, 109 So.3d 1056, 1058-59 (Miss.Ct.App.2011), reh’g denied (Sept. 6, 2011). Dante petitioned this Court for a writ of certiorari concerning six issues: (1) whether the trial court erroneously refused to permit the jury to consider Dante’s theory of imperfect self-defense; (2) whether the trial court erred in excluding testimony concerning Darold Evans’s alleged abuse of Dante and his mother; (3) whether the trial court erred in refusing funds to hire a post-traumatic-stress-disorder (PTSD) expert; (4) whether the trial court improperly prohibited the jury from considering Dante’s age in its deliberations; (5) whether the trial court erred in admitting Dante’s statements made to security guards and law-enforcement officers; and (6) whether Dante’s life sentence is unconstitutional.

¶ 2. This Court granted certiorari on December 15, 2011. On June 8, 2012, this Court requested supplemental briefing on whether the trial court abused its discretion in denying Dante funds to hire an expert on PTSD and whether that issue would be more appropriately addressed on a petition for post-conviction relief. Although Dante submits six issues for us to consider today, under Mississippi Rule of Appellate Procedure 17(h), we limit the question for review upon our grant of cer-tiorari, focusing on the third issue. Walton v. State, 998 So.2d 971, 975 (Miss.2008).

¶ 3. We find that Dante demonstrated an actual need for an expert on PTSD. Therefore, the trial court abused its discretion in denying funds to hire such an expert. We reverse the judgment of both the Court of Appeals and the trial court and remand for a new trial.

FACTS

¶ 4. On April 13, 2007, Dante Evans was arrested for shooting his father, Darold Evans. Dante was fourteen years old at the time of his arrest. On his videotaped police statement, Dante stated that he and his mother, Juanita Evans, had been victims of his father’s abuse. Dante told police that his father had threatened to kill his mother on several occasions and that he had witnessed his father holding his mother underwater in the bathtub. He also told the police that his father had tried to hit his mother with a car. Dante claimed that his father also had lashed out against him, at one point injuring his eye. Following these events, Dante was hospitalized for depression in 2001, and was diagnosed with PTSD.

¶ 5. Dante’s parents separated in 2006, and he moved with his mother to North Carolina shortly thereafter. After Dante began using drugs and spending time with a gang, his mother sent him to live with his father in Biloxi, Mississippi. In February 2007, Dante moved in with his father. After several weeks of living alone with his father in a Federal Emergency Management Agency (FEMA) trailer, Dante came to Latrice Walker Richardson, the school guidance counselor, and said he had been thinking about killing his father. Richardson then called in another counselor, Ms. Crockett. Dante then stated that he did not want to be in Mississippi and that his father was beating him. The next morning, Dante continued the conversation with Richardson, Crockett, and Cassandra Jones, the school’s social worker. Richardson and Crockett informed Jones of their conversation with Dante the day before, and Jones explained to Dante that a parent has the right to discipline his child as long as the parent does not leave a bruise. Dante stated that his father did not leave bruises on him, but that he did push and punch him in the chest and also forbade him from contacting his mother. Jones suggested Dante write to his mother. Dante attempted to write his mother a letter, but it was confiscated because he was writing the letter during class. Dante made several allegations in the letter, including that his father was abusing him.

¶ 6. The school notified Dante’s father of the complaint and the letter and scheduled a meeting. When asked if there were any problems at home, Dante’s father said he was strict, but that he and his son had a good relationship. Dante’s mother called Dante’s father during the meeting, and his father handed Dante the phone to speak to his mother.

¶ 7. Richardson and Jones met with Dante the next day and noticed that he had a bruise next to his eye. Dante told them that his father had pushed him against the trailer after their meeting the day before. Dante’s injuries also were reported to the Department of Human Services (DHS), but after visiting the trailer park, DHS found no reason to intervene.

¶ 8. A few weeks later, Darold Evans was found dead from a gunshot wound, and Dante was arrested and charged with murder. Dante explained the following in his videotaped police statement: He removed his father’s handgun from a locked toolbox two nights before the shooting. He stated he kept the gun under his pillow for protection from his father’s abusive behavior. Dante also told the police he practiced pointing the gun at his father one or two nights before the shooting, and that he had no prior experience with guns. When he pulled the trigger and the gun did not fire, Dante said he “took it as a sign I’m not suppose [sic ] to be doing it. But today, I tried it again....”

¶ 9. On September 5, 2008, in preparation for trial, defense counsel filed its Motion for Expert and Funds to Pay Same. The motion stated that Dante was diagnosed with PTSD as a child and that Dante needed a PTSD expert to assist in the preparation for trial and to testify. The motion identified Dr. Gerald O’Brien as the requested expert and asked for funds totaling no more than $3,000.

¶ 10. On September 11, 2008, the court held a hearing on the motion for funds. Defense counsel stated that, pursuant to a prior court order, Dr. Beverly Smallwood had been hired in April 2008 to conduct a pretrial psychological exam on Dante. Defense counsel emphasized to the court that Dr. Smallwood had been hired for the sole purpose of determining whether Dante was competent to stand trial and whether he was sane at the time of his offense. Dr. Smallwood’s report was introduced as an exhibit and reviewed by the court. During Dr. Smallwood’s investigation, she discovered that Dante had been diagnosed with PTSD in 2001. In her report, Dr. Small-wood stated that Dante showed symptoms of PTSD, and she also provided likely triggers for Dante’s trauma. These triggers included Dante’s living situation and abusive environment.

¶ 11. Defense counsel informed the court that, although Dr. Smallwood had identified Dante’s history of abuse and his symptoms, she could not provide the type of assistance on PTSD necessary for Dante’s defense. As a result, defense counsel requested that Dante be allowed funds to hire a PTSD expert. Specifically, defense counsel stated that an expert on PTSD, such as Dr. O’Brien, was necessary for Dante’s theory of defense. When the trial court asked whether Dr. Smallwood could provide the same testimony, defense counsel replied, “No sir. I have spoken to Dr. Smallwood about that, and she cannot.” Defense counsel further informed the court that Dr. Smallwood had recommended that Dante hire Dr. O’Brien, an expert in the field of PTSD. At the close of the hearing, the trial court denied Dante’s motion for funds to pay for Dr. O’Brien, stating that Dante, Dr. Smallwood, and other witnesses could testify regarding Dante’s abusive family history.

¶ 12. Dante’s trial commenced in Harrison County Circuit Court on March 11, 2009. At trial, Dante requested a jury instruction for his theory of imperfect self-defense. The trial court refused to offer such an instruction, finding that Dante had failed to present enough evidence to support his theory.

¶ 13. Dante was convicted of murder on March 12, 2009. On May 21, 2009, the court denied Dante’s Motion for a New Trial. He then filed a timely Notice of Appeal on May 27, 2009. The Court of Appeals issued an en banc decision on June 14, 2011, in which six judges affirmed Dante’s conviction and three judges dissented. Evans, 109 So.3d at 1068-69. In regard to Dante’s requested funds for an expert, the majority held the funds were properly denied because the expert testimony was intended to support Dante’s theory of imperfect self-defense, which was not supported by the evidence. Id. However, the dissent argued that the case should be reversed and remanded based on the trial court’s denial of Dante’s request for an expert on PTSD because such testimony was necessary for his defense. Id. at 1068-69 (Carlton, J., dissenting).

DISCUSSION

¶ 14. This Court must determine on a case-by-case basis whether the denial of expert assistance for an accused is in fact prejudicial to the assurance of a fair trial. Davis v. State, 374 So.2d 1293 (Miss.1979). “The majority of state and federal jurisdictions express a similar view and hold that relief will be granted only where the accused demonstrates that the trial court’s abuse of discretion is so egregious as to deny him due process and his trial was thereby rendered fundamentally unfair.” Johnson v. State, 476 So.2d 1195, 1203 (Miss.1985).

¶ 15. Dante argues that the defense theory of imperfect self-defense required an expert on PTSD and that the trial court’s refusal of funds for such an expert was an abuse of discretion and reversible error. Dante further argues that he demonstrated an actual need for an expert in PTSD and that the trial court’s denial of funds was a denial of due process. We agree.

I. DANTE DEMONSTRATED AN ACTUAL NEED FOR AN EXPERT ON POST-TRAUMATIC STRESS DISORDER.

¶ 16. A trial court’s decision on a motion for experts is reviewed for abuse of discretion. Grayson v. State, 806 So.2d 241, 254 (Miss.2001) (citation omitted). This Court has acknowledged that there are times when “the state in fairness should be required to pay the cost of an expert needed by the defense to insure a fair trial for an indigent accused.... ” Ruffin v. State, 447 So.2d 113, 118 (Miss.1984). Further, it would be an abuse of discretion for a trial court to deny funds for an expert if the defendant has provided concrete reasons showing a substantial need for such assistance. Hansen v. State, 592 So.2d 114, 125 (Miss.1991) (citations omitted).

¶ 17. We find that Dante satisfied his burden to show that an expert in PTSD was necessary for his defense. Dr. Small-wood was appointed solely to evaluate Dante and to determine his competency to stand trial. Although Dr. Smallwood ultimately gave her opinion that Dante was competent to stand trial, she informed defense counsel that she would not be able to testify as to how PTSD may affect a person’s state of mind because she lacked expertise in that field. Therefore, Dante did not have an expert who could assist in the preparation of his defense, which was that his PTSD affected his state of mind at the time of the shooting. Defense counsel informed the court that this testimony was necessary for Dante’s theory of defense, reiterating that an expert in PTSD could assist the jurors in understanding the mindset of a child suffering from PTSD. Defense counsel also informed the court that Dr. Smallwood “recommended that [the defense] hire Dr. O’Brien, who is ... very highly qualified....”

¶ 18. At the hearing, defense counsel also provided specific findings by Dr. Smallwood to show that expert testimony on PTSD was essential to assist the jury to understand the evidence. See M.R.E. 702. Dr. Smallwood’s report stated that, in 2001, Dante had been diagnosed with PTSD at the Moses Cone Hospital in Greenville, North Carolina. Dr. Small-wood’s report also revealed that Dante exhibited the following symptoms of PTSD: fear and a sense of helplessness, agitated behavior, outbursts of anger, difficulty concentrating, and intrusive memories of past abuse. Defense counsel reiterated that, while Dr. Smallwood stated she could recognize the symptoms of PTSD, she did not have the expertise to explain to a jury PTSD’s effects on a person’s mental state.

¶ 19. The role of an expert witness is to “ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense.” Ake v. Oklahoma, 470 U.S. 68, 80-81, 105 S.Ct. 1087, 1095, 84 L.Ed.2d 53 (1985). Such experts can “translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand.” Id. at 80, 105 S.Ct. 1087. In denying the motion for funds, the trial court claimed that Dante and other witnesses could testify about Dante’s abusive history. However, defense counsel requested Dr. O’Brien because Dr. Smallwood and lay witnesses could not testify to the symptoms and characteristics of a person suffering from PTSD. Dante needed an expert in PTSD to “ideally assist lay jurors ... to make a sensible and educated determination about the mental condition of the defendant at the time of the offense.” Ake, 470 U.S. at 80-81, 105 S.Ct. 1087. This Court recognizes the importance of expert testimony in regard to the psychological effects of PTSD. See, e.g., Norris v. State, 490 So.2d 839, 843 (Miss.1986) (allowing expert testimony regarding effect of PTSD on war veteran in aggravated-assault case).

¶ 20. Defense counsel explained to the court that Dr. Smallwood is not an expert in PTSD. Defense counsel also presented evidence of Dante’s medical diagnosis of PTSD. Finally, defense counsel explained that an expert in PTSD was necessary for Dante to prepare his theory of defense. We find that Dante met his burden of showing an actual need for an expert who could testify to the psychological effects of PTSD. Therefore, we find that the trial court’s denial of funds for Dante to hire Dr. O’Brien was an abuse of discretion.

II. THE TRIAL COURT’S DENIAL OF FUNDS FOR AN EXPERT ON POST-TRAUMATIC STRESS DISORDER VIOLATED DANTE’S DUE-PROCESS RIGHTS.

¶ 21. Dante’s primary theory at trial was imperfect self-defense. Dante was required to show that he acted without malice and under a bona fide belief that his actions were necessary to avoid death or bodily harm. Wade v. State, 748 So.2d 771 (Miss.1999) (citation omitted). Under this theory, the jury must determine whether Dante’s actions were “subjectively, in his ... own mind, reasonable.... ” Cook v. State, 467 So.2d 203, 207 (Miss.1985). Dante lacked a necessary component to his defense — an expert who could explain to a jury how a child’s state of mind may be affected when suffering from PTSD. This lack of expert testimony deprived the jury of the information needed to properly understand the evidence regarding whether Dante’s PTSD affected his mental state at the time of the shooting.

¶ 22. Under the theory of imperfect self-defense, a jury would need to determine whether Dante held, in his mind, a perception of fear that he was in danger of “death or great bodily harm” while living with his father. Wade, 748 So.2d at 775. Dante’s diagnosis of PTSD and abusive family history were the factual basis for his theory. At the hearing on the motion for funds, defense counsel specifically stated that Dr. O’Brien was needed so the defense could explain Dante’s theory of imperfect self-defense to the jury. The trial court’s denial of funds for Dr. O’Brien denied Dante the opportunity to offer a fact-based defense.

¶ 23. This case presents unique circumstances. We do not hold today that a defendant who is simply displeased with his expert or experts provided by the State has grounds for reversal. As previously stated in Ake, an indigent defendant does not have a constitutional right to hire an expert of his or her liking or to receive funds to hire his own. Ake, 470 U.S. at 83, 105 S.Ct. 1087. Rather, our holding is narrowly tailored to the particular facts of this case — in order to present his defense theory, Dante needed a PTSD expert who could explain to a jury how PTSD would affect a child’s state of mind. Dante was entitled to an adequate expert to assist in the preparation of his defense.

¶ 24. The trial court abused its discretion in denying Dante funds to hire a PTSD expert. This Court has stated that “[a]n indigent’s right to defense expenses is conditioned upon showing that such expenses are needed to prepare an adequate defense.” Hunt v. State, 687 So.2d 1154, 1161 (Miss.1996). We find that Dante met his burden and that the court’s denial of his request violated Dante’s due-process rights. See Johnson, 476 So.2d at 1203 (stating that the Due Process Clause, at times, requires the authorization of certain experts). Therefore, this Court finds that Dante’s conviction should be reversed and that this case should be remanded to the trial court for further proceedings consistent with this opinion.

CONCLUSION

¶ 25. We find that the trial court abused its discretion in denying Dante funds to hire an expert in PTSD to assist Dante in the preparation of his defense. And we find that the Court of Appeals erred in affirming the verdict and sentence. We reverse the judgments of both the Court of Appeals and the trial court. Therefore, we remand this case to the Harrison County Circuit Court for a new trial consistent with this opinion.

¶ 26. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE AND COLEMLAN, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Both parties agreed that this issue should be addressed in this appeal.

      . Ms. Crockett’s first name does not appear in the record.


author: DICKINSON, Presiding Justice,

text:
    VIRGINIA COLLEGE, LLC, Education Corporation of America, David Podesto, Milton Anderson and Erica Clark v. Cordero BLACKMON, et al.
    No. 2012-CA-00463-SCT.
    Supreme Court of Mississippi.
    March 28, 2013.

      Robert L. Gibbs, Jackson, F. Hall Bailey, Dellwyn K. Smith, Peter S. Fruin, Ollie Ancil Cleveland, III, attorneys for appellants.
    Kenya Reese Martin, Warren Louis Martin, Jr., Jackson, attorneys for appel-lees.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. The trial court denied defendant Virginia College’s motion to compel arbitration. Because the plaintiffs failed to allege sufficient facts to support a claim that they were fraudulently induced to agree to the arbitration provision, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. Virginia College requires students who wish to enroll in its surgical technology program to sign an Enrollment and Tuition Agreement (“Agreement”), which includes an agreement to arbitrate disputes. The plaintiffs claim that Virginia College fraudulently induced them to sign the Agreement by falsely representing that the program had, or would obtain, accreditation from the Commission on Accreditation of Allied Health Education Programs (“CAAHEP”), and that Virginia College’s failure to obtain CAAHEP accreditation deprived them of marketable degrees. Plaintiffs claim they are now prohibited by law from taking the required licensure examinations to become surgical technicians.

¶ 3. Plaintiffs’ second amended complaint asserts claims of fraud in the inducement of the contract; negligence; negligent hiring, retention, supervision, and/or control; gross negligence; negligence per se; fraudulent misrepresentation; trespass to chattels; breach of contract; breach of fiduciary duty; breach of the implied covenants of good faith and fair dealing; conversion; fraud; unjust enrichment; civil conspiracy; tortuous interference with potential business relationships; and fraudulent inducement of the arbitration provision. Virginia College filed a motion to compel arbitration under the Agreement’s arbitration clause, which provided that:

[a]ny claim, controversy or dispute arising out of or relating to [the Agreement] ... arising out of or in relation to the Student’s enrollment and participation in courses ... shall, upon notice by either party to the other party, be resolved and settled by binding arbitration....

¶ 4. Plaintiffs responded to the motion to compel arbitration by filing a motion to invalidate the arbitration provision, arguing that the provision was unconscionable and that they were fraudulently induced to enter into the contract.

¶ 5. The trial court did not adjudicate plaintiffs’ claim that the Agreement was unconscionable, finding instead that “the plaintiffs have pled facts sufficient to support a finding of fraud in the making of the agreement to arbitrate, thereby extinguishing the validity of the arbitration provision.” The trial court, finding that the arbitration clause was “unenforceable and void,” granted plaintiffs’ motion to invalidate, and denied Virginia College’s motion to compel arbitration.

¶ 6. Virginia College timely perfected its appeal, arguing that the trial court erred in finding that plaintiffs pleaded facts sufficient to support a finding of fraud in the making of the arbitration clause. We agree.

ANALYSIS

¶ 7. The sole issue on appeal is whether the trial court incorrectly found that plaintiffs properly and sufficiently alleged fraud in the inducement of the arbitration provision. We review de novo a circuit court’s grant or denial of a motion to compel arbitration.

¶ 8. The Federal Arbitration Act (“the Act”) controls “[w]hen a commercial transaction involving interstate commerce includes an agreement to arbitrate disputes.” Under the Act, such arbitration clauses “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The Act establishes a broad federal policy favoring arbitration, and thus places arbitration agreements on “equal footing” with all other types of contracts. Therefore, “[d]oubts as to the availability of arbitration must be resolved in favor of arbitration,” and the party opposing arbitration has the burden of establishing defenses to the enforcement of the provision.

¶ 9. For the first time, we are called upon to consider a challenge to the validity of an arbitration provision based on an alleged fraud in the inducement of the agreement to arbitrate. Because the Act “creates a body of federal substantive law” applicable in both state and federal courts, United States Supreme Court decisions interpreting the Act control our disposition of this issue.

¶ 10. Generally, fraud in the inducement “arises when a party to a contract makes a fraudulent misrepresentation, i.e., by asserting information he knows to be untrue, for the purpose of inducing the innocent party to enter into a contract.” In 1967, the United States Supreme Court addressed the issue of whether claims of fraudulent inducement of contracts that include arbitration provisions should be resolved by the courts or by arbitrators.

¶ 11. In Prima Paint Corp. v. Flood & Conklin Manufacturing Corp., Prima Paint refused to make payments under a consulting agreement with F & C Manufacturing on the grounds that F & C had fraudulently misrepresented its solvency at the time the parties executed the agreement. In its complaint, Prima Paint alleged that it was “fraudulently induced to accelerate the execution and closing date of the (consulting) agreement ... from October 21, 1964 to October 7, 1964.” The High Court, finding that arbitration clauses are “severable” from the contracts in which they are embedded, held that “if the claim is fraud in the inducement of the arbitration clause itself — an issue which goes to the ‘making' of the agreement to arbitrate — the federal court may proceed to adjudicate it.” However, the Court found that the Act did not extend to federal courts the power to hear claims of fraud in the inducement of the contract as a whole,

¶ 12. In a followup decision addressing fraudulent inducement of contracts that include arbitration clauses, the Supreme Court stated that

... in Prima Paint itself, where the alleged fraud that induced the whole contract equally induced the agreement to arbitrate which was part of that contract — we nonetheless require the basis of the challenge to be directed specifically to the agreement to arbitrate before the court will intervene.”

¶ 13. A claim that a party was fraudulently induced to enter into a contract is not a sufficient basis for a trial judge to usurp the authority of the arbitrator to decide the issue, because federal law has clearly established that allegations of fraud in the inducement of a contract as a whole must be submitted to arbitration. We will not invalidate an arbitration provision on the basis of fraudulent inducement, unless the complaint specifically and clearly alleges the party was fraudulently induced to enter into the agreement to arbitrate — which must be independent of any fraud inducing the contract as a whole— and the claim must be pleaded with particularity.

¶ 14. Virginia College argues that plaintiffs’ fraud allegations are deficient because they allege fraud in the making of the overall Agreement, and that plaintiffs fail to allege any fraudulent misrepresentations specifically designed to persuade plaintiffs to arbitrate claims arising from the Agreement. We agree. The allegations of fraud — despite the generalized title of “Fraudulent Inducement of the Arbitration Provision” in the complaint — allege fraudulent inducement of the whole Agreement.

¶ 15. A claim of fraudulent misrepresentation concerning the arbitration provision requires Plaintiffs to make specific allegations concerning the arbitration provision itself, including:

(1) a representation, (2) its falsity, (8) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

¶ 16. But plaintiffs’ allegations of fraud attach to the Agreement rather than the arbitration provision. So we must apply federal law, which requires such claims to be decided by an arbitrator.

¶ 17. In their complaint, plaintiffs do allege that the arbitration clause “gives these Defendants a ‘green light’ to perpetrate all sorts of fraudulent acts — including charging these Plaintiffs for dormitory fees when Virginia College at Jackson does not even offer or provide student housing ... all while hid[ing] behind the cover of an illegal arbitration provision.” But these allegations — although situated under the heading “Fraudulent Inducement as to the Arbitration Provision” — address fraudulent acts that are alleged to have occurred after plaintiffs signed their Agreements, and not some action by Virginia College inducing them to agree to the arbitration clause.

¶ 18. Plaintiffs argued in their response to Virginia College’s motion to compel that they “only consented to arbitration based solely upon fraudulent inducement and fraudulent misrepresentation of material facts regarding Virginia College’s accreditation status.” Similarly, in a sworn affidavit submitted to supplement plaintiffs’ motion to invalidate, one plaintiff alleged: “[b]ut for the false statements made by Virginia College and the school’s concealment of its true accreditation status, I would not have signed the Enrollment and Tuition Agreement.”

¶ 19. But these allegations fail to allege that Virginia College officials misrepresented facts solely related to the arbitration clause itself. They do not allege, for example, that a Virginia College official stated that the clause would not be enforced in the event of a dispute, or that there was NO arbitration clause in the Agreement when, to their surprise, there actually was. Instead, their allegations touch upon the inducement of the overall contract, and for the courts to adjudicate these claims would be inconsistent with the dictates of Prima Paint. As discussed, supra, it is the arbitrator’s duty to determine whether the contract was fraudulently induced.

¶ 20. At oral argument, plaintiffs argued that the Agreement, and its arbitration clause, are unconscionable. But because the trial judge failed to address this claim, it is not ripe for our review.

CONCLUSION

¶ 21. Because plaintiffs failed to allege or demonstrate facts sufficient to support a claim of fraudulent inducement of the arbitration clause, we reverse and remand for proceedings consistent with this opinion.

¶ 22. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . The plaintiffs brought suit against Virginia College, LLC, Education Corporation of America, David Podesto, Milton Anderson, and Erica Clark, who will be referred to collectively throughout this opinion as "Virginia College.”

      . The Plaintiffs are as follows: Cordero Blackmon, Charity Brady, Sharie Dessell, Ashley Dixon, Karessia Gibson, Monique L. Graham, La'Derian Hartwell, Joan Jones, Barbara D. Nevels, Pamela Wright, Erica D. Twilley, Chickieta S. Clark, Beverly Ellis, Billie Robertson, Crystal Harris, Terriette L. Weidman, Courtney Flaggs, LaJuanna Anderson, Julie Yates, Rhonda R. Moore, Jeffery Sanders, Jessica Curtiss, Joseph De-Deaux, Jennifer Runnels, Charisse Pitts, Sandra D. Johnson, Ashley M. Belcher, Kizzy D. Thornton, Terrance Bell, Terry T. Barksdale, and Tamara Gray ("Plaintiffs”).

      . Univ. Nursing Assocs., PLLC v. Phillips, 842 So.2d 1270, 1276 (Miss.2003).

      . Miss. Credit Ctr. v. Horton, 926 So.2d 167, 173 (Miss.2006); The parties do not dispute the applicability of the Act and likewise acknowledge that the Agreement contains an agreement to arbitrate disputes arising from the students’ enrollment at Virginia College.

      . 9 U.S.C. § 2 (1947).

      . Buckeye Check Cashing, Inc. v. Cardegna et al., 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006).

      . Terminix Int’l Inc. v. Rice, 904 So.2d 1051, 1054 (Miss.2004).

      . Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).

      . Southland Corp. v. Keating, 465 U.S. 1, 12, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (citations omitted).

      . Lacy v. Morrison, 906 So.2d 126, 129 (Miss.Ct.App.2004).

      . Prima Paint Corp. v. Flood & Conklin Mfg. Corp., 388 U.S. 395, 402, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967).

      . Id. at 398.

      . Id. at 398 n. 2.

      . Id. at 403-404 (emphasis added).

      . Id. (emphasis added).

      . Rent-A-Center, West, Inc. v. Jackson, — U.S. -, 130 S.Ct. 2772, 2778, 177 L.Ed.2d 403 (2010).

      . Prima Paint, 388 U.S. at 403-404, 87 S.Ct. 1801; Buckeye Check Cashing, 546 U.S. at 445-46, 126 S.Ct. 1204.

      . See Will-Drill Resources, Inc. v. Samson Res. Co., 352 F.3d 211, 218 (5th Cir.2003); Rent-A-Center, 130 S.Ct. at 2778.

      . Miss. R. Civ. P. 9(b).

      . Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 831 (Miss.2009).


author: IRVING, P.J., CARLTON, J.,

text:
    Dante Lamar EVANS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00854-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.

      Robert B. McDuff, Robert Charles Stewart, Bryan A. Stevenson, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. On March 12, 2009, Dante Lamar Evans was convicted of the murder of his father, Darold Evans. In accordance with the requirements of Mississippi Code Annotated section 97-3-21 (Rev.2006), the Harrison County Circuit Court sentenced Evans to life in the custody of the Mississippi Department of Corrections. Although Dante was fourteen years old at the time of the offense, the circuit court had no discretion in the pronouncement of sentence.

¶ 2. On March 20, 2009, Dante filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, Dante appeals and argues that: (1) the circuit court erred by refusing to instruct the jury on imperfect self-defense; (2) the circuit court erred in excluding testimony regarding Dante’s father’s alleged past abuse of Dante and Dante’s mother; (3) the circuit court erred in refusing funds to hire an expert on post-traumatic stress disorder; (4) the circuit court denied Dante’s right to a fair trial and an impartial jury by improperly influencing potential jurors during voir dire and by excluding potential jurors who indicated that Dante’s age would inhibit their ability to be fair and impartial; (5) the circuit court erred in admitting Dante’s statements made to security guards; (6) the circuit court erred in admitting Dante’s statements made to Biloxi police officers; and (7) Dante’s life sentence is unconstitutional.

¶ 3. Finding no reversible error, we affirm.

FACTS

¶ 4. According to Dante’s videotaped police statement, he had witnessed his father physically abusing his wife and Dante’s mother, Juanita, on several occasions. Dante stated that he had witnessed his father hold his mother’s head underwater in a bathtub until she could not breathe. Dante told the police that his father had tried to run Dante’s mother over in a car. According to Dante, he also overheard his father threaten to kill Dante’s mother numerous times.

¶ 5. In 2006, Dante’s mother and father separated. Following the separation, Dante and his mother moved to North Carolina. Dante began associating with a gang, using drugs, and getting into trouble. Dante’s mother decided to send him to live with his father, whom she described as a “strict disciplinarian.”

¶ 6. On February 27, 2007, Dante moved from his mother’s home in North Carolina to his father’s home in Biloxi, Mississippi. According to Dante, his father’s abusive behavior continued when he moved in with his father. Within weeks of moving in with his father, Dante came to Latrice Walker Richardson, a guidance counselor at Dante’s school, and told her, ‘Well, I’ve been thinking about killing my dad.” At that point, Richardson called another counselor, Ms. Crockett, to her office. Dante then complained that his father had beaten him. He explained that he did not want to be in Mississippi with his father. He wanted to go back and live with his mother. Before they could talk further, the bell rang for the end of the school day. Richardson asked Dante if he felt comfortable going home, and he stated that he did. However, the next morning, Dante returned to Crockett’s office, and Crockett called Richardson and the school’s social worker, Cassandra Jones, to her office. During the meeting, Richardson and Crockett informed Jones of the conversation that they had had with Dante the previous day. Jones explained to Dante that parents have the right to discipline their children but not to bruise them. She inquired of Dante whether his father had left bruises on him, and Dante said that he had not, although his father “might push or punch him in the chest.” Dante again expressed a desire to return to his mother’s home, but he stated that his father refused to allow him to contact his mother. Jones suggested that Dante write a letter to his mother, which he did. However, because Dante was working on the letter during class, his teacher confiscated it. In the letter, Dante alleged that his father had “already put his hands on me leaving lumps and marks.” Dante further stated: “I can’t stand living down here, and you know that Daddy is acting like a straight fool!!! He already has got [sic] me thinking about committing serious murder and killing, and I mean SERIOUS! Daddy is a liar, a money[-]hungry, too[-]strict dummy.” As stated, Dante’s teacher confiscated the letter. Dante became defiant and, as a result, was written up for his behavior. Richardson and Jones contacted Dante’s father to discuss Dante’s behavior. Jones asked Dante’s father if there were any problems in the home. The father explained that he was a strict father but that he and Dante had a good relationship. He further explained that they prayed together in the mornings. During the meeting, Dante’s mother called Dante’s father’s cellular telephone. The father passed the telephone to Dante, and Dante spoke with his mother. This surprised the school officials because Dante had told them that his father would not allow him to contact his mother.

¶ 7. The following day, Richardson and Jones met with Dante again. Dante stated that when he and his father returned home, his father pushed him against their trailer and told him to leave. Richardson and Jones noticed that Dante had a small dark bruise next to his eye. Jones contacted the Department of Human Services (DHS). DHS later performed a home visit, but the record is unclear as to what DHS’s findings were.

¶ 8. In his videotaped police statement, Dante explained that two nights before the murder, he had removed his father’s handgun from a locked toolbox and began sleeping with it under his bed. Dante stated that he had kept the gun under his bed for protection from one of his father’s “outbursts.” Dante further stated that he had never handled a gun before. Dante told the police that either one or two nights before the murder, he had practiced pointing the gun at his father while his father slept. Dante pulled the trigger, but the gun did not fire. Dante told police that he “took it as a sign I’m not suppose [sic] to be doing it. But today, I tried it againOn April 13, 2007, Dante shot his sleeping father in the face.

¶ 9. Additional facts, as necessary, will be related during our discussion and analysis of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Imperfect Self-Defense Instruction

¶ 10. Dante argues that the circuit court erred by refusing his jury instruction on imperfect self-defense. Under the theory of imperfect self-defense, “an intentional killing may be considered manslaughter if done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent great bodily harm.” Moore v. State, 859 So.2d 379, 383 (¶ 9) (2003) (quoting Wade v. State, 748 So.2d 771, 775 (¶ 12) (Miss.1999)).

¶ 11. In Wade, the Mississippi Supreme Court recognized the theory of imperfect self-defense in the context of a domestic-violence case. Wade, 748 So.2d 771. Deanna Wade shot and killed her boyfriend, Ralph Simpson, after he had brutally beaten her in a bar. Id. at 773 (¶¶ 5-6). According to witness testimony, Simpson beat Wade’s head against a table top, pulled Wade by the hair, “and beat her head against the edge of a pool table.” Id. at (¶ 5). Immediately after the attack, Wade went to the house that she shared with Simpson and retrieved a gun. Id. at (¶ 6). Wade returned to the bar, and when Simpson moved toward her, she shot him. Id. Our supreme court found that Wade should have been convicted of manslaughter instead of murder based on either “heat of passion” or imperfect self-defense. Id. at 777 (¶ 19). In support of its finding, the court noted Simpson’s long history of abusive behavior toward Wade and the short lapse of time between the shooting and the most recent episode of abuse. Id. at 776 (¶ 15).

¶ 12. However, in Moore, a case which also involved domestic abuse, our supreme court found that the theory of imperfect self-defense did not apply. Moore, 859 So.2d at 383 (¶ 11). Rachel Moore’s husband, Jason Moore, had physically abused Rachel throughout their marriage. Id. at 381 (¶ 2). On the day that Rachel killed Jason, the couple had argued, and Jason had physically abused her. Id. at (¶ 3). When the altercation ended, Rachel told Jason, “I hope you know you’re fixing to die.” Id. Jason ran into the woods beside their trailer, but he returned approximately forty-five minutes later and yelled for Rachel to come outside and talk. Id. Once Rachel came outside, Jason walked toward her, and Rachel shot him. Id.

¶ 13. Our supreme court concluded that the facts in Moore were distinguishable from those in Wade. Id. at 383-84 (¶ 13). While both Wade and Moore were victims of domestic violence, the court noted that Moore waited over forty-five minutes after the abuse to shoot her husband. Id. at 384 (¶ 13). Additionally, the court noted that whereas Wade had no access to a telephone, Moore had access to a telephone and a car, and she failed to call for help or leave the premises. Id. at (¶¶ 12-13).

¶ 14. Our supreme court has stated that “[a] defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Clark v. State, 40 So.3d 531, 544 (¶ 36) (Miss.2010) (emphasis added) (quoting Spires v. State, 10 So.3d 477, 483 (¶ 28) (Miss.2009)). Dante correctly points out that a defendant is entitled to present his theory of the case even where the evidence in support of that theory is “minimal” or “meager.” See Spires, 10 So.3d at 483 (¶ 27). However, based on the facts above, Dante has failed to meet even the low evidentiary burden announced in Spires.

¶ 15. While there is evidence that Dante’s father had physically abused Dante in the past, Dante admitted in his police statement that no abuse had occurred on the night of the murder or on the days leading up to the murder. Dante also told the police that he had practiced aiming the gun at his father, while his father slept, either one or two nights before the murder. Finally, there was no evidence of a renewed attack by Dante’s father, who was asleep when Dante shot him.

¶ 16. Based on the holdings in Wade and Moore, we find that the facts of this case do not support a theory of imperfect self-defense. Therefore, the circuit court properly refused the instruction on imperfect self-defense. This issue is without merit.

2. Testimony Regarding the Father’s Prior Abuse

¶ 17. Dante argues that the circuit court erred in excluding the testimony of Terrence Russell, a neighbor who saw Dante’s father strike Dante with his fist and with a chain, and the testimony of Officer Susan Kimball, who would have testified regarding restraining orders issued against Dante’s father in 2006. Dante contends that the excluded testimony is central to his theory of imperfect self-defense. However, as stated above, Dante has failed to present a sufficient evidentiary basis in support of his theory of imperfect self-defense. Moreover, Dante killed his father in 2007. The excluded testimony concerns conduct that allegedly occurred in 2006, before Dante came to live with his father. Therefore, this issue is without merit.

3. Funds for an Expert on Post-Traumatic Stress Disorder

¶ 18. The circuit court appointed Dr. Beverly Smallwood, a psychologist, to evaluate Dante and determine whether he was competent to stand trial. In her evaluation report, Dr. Smallwood stated that “over the years Dante has been irritable and has shown outbursts of anger; he has had difficulty concentrating; he has displayed aggressive behavior throughout his childhood,” and that “all of the above are symptoms of post-traumatic stress disorder.” Dr. Smallwood noted that Dante had been diagnosed with post-traumatic stress disorder (PTSD) in 2001. She gave an opinion, to a reasonable degree of psychological certainty, that:

A. At the time of the alleged crime(s) with which [Dante] is being charged, [he] was of sufficient mental capacity to distinguish between right and wrong and comprehend the nature and the quality of said act(s);
B. [Dante] is now in possession of mental faculties so as to enable [him] to comprehend the nature of the charge(s) against him and rationally aid in the conduct of his defense;
C. [Dante] is in such condition of mind and memory as to be able to recall the evidence connected with the offense(s) with which [he] is charged so as to enable [him] to advise counsel in a rational manner and to testify at the trial of their [sic] case if so called upon to do so;
D. At the time [Dante] allegedly committed the crime(s) with which he is charged, [he] did not suffer from mental disease, injury, or congenital deficiency such that because of a delusional compulsion, his will to resist committing the acts which constitute the crime(s) with which he is charged was overmastered.

According to Dante, Dr. Smallwood was not qualified to testify regarding the effects of PTSD on a person’s state of mind or behavior, so he requested funds to hire Dr. Gerald O’Brien, a PTSD expert. The circuit court denied Dante’s request. Because Dante sought O’Brien’s testimony in support of his theory of imperfect self-defense, which is not supported by the evidence, we find that this issue is also without merit.

4. Statements Made to, and Exclusion of, Potential Jurors

¶ 19. Dante argues that the circuit court erred in instructing potential jurors that they were “not to be concerned with the fact that [Dante] was only [fourteen] years of age at the time of [the murder].” Additionally, Dante asserts that the circuit court improperly excluded potential jurors who stated that Dante’s age would inhibit their ability to be fair and impartial.

¶ 20. During its examination of potential jurors, the circuit court made the following statement:

I think that it’s very obvious that at the time of this incident back two years ago, that the defendant in this case, Mr. Dante Evans, at the time was 14 years of age. Under the law of the State of Mississippi, due to the nature of the crime that is charged, that being with a weapon, that it is automatically certified to the [c]ircuit [c]ourt because of-irregardless of age. So you’re not to be concerned with the fact that he was only 14 years of age at the time of this incident.

Defense counsel objected to the circuit court’s statements, and the circuit court overruled the objection and explained:

I had some reservations about bringing up-for the [c]ourt to bring up the matter of the age of the accused, but in order to be sure that we had jurors that could be fair to the State as well in considering the age of this defendant, [I think] that they should be questioned and be actually instructed that a 14 year old is certified to the [c]ircuit [c]ourt once they are charged with ... this type of crime.

¶ 21. Dante contends that the circuit court’s statements improperly influenced the potential jurors and impaired his ability to proceed on his theory of imperfect self-defense. As stated above, the evidence does not support a theory of imperfect self-defense. Furthermore, we do not find that the circuit court’s statements to potential jurors were improper. Under Mississippi law, the circuit court has original jurisdiction over “[a]ny act attempted or committed by a child, which if committed by an adult would be punishable under state or federal law by life imprisonment or death-” Miss.Code. Ann. § 43-21-151(l)(a) (Rev.2009). The circuit court correctly stated that because Dante was accused of murder, he could be tried as an adult in the circuit court. This issue is without merit.

¶ 22. The circuit court also asked potential jurors if they would allow Dante’s age to influence them during the course of the trial. Five potential jurors indicated that Dante’s age would influence them, and we have included excerpts from the voir dire examination of these jurors below.

BY THE COURT: Can all of you tell me that you’re going to follow the law, that you’re not going to allow the fact or the age of the defendant to enter into your deliberations during the course of this trial? Do I have anybody that’s going to allow that to influence them?
* * * *
A: Yes, sir, I [Charlotte Damiano] believe that I don’t think I could ignore the fact that he was 14.
* * * *
BY THE COURT: Is there anybody else in this group that is going to take into consideration and allow the fact of age to enter into your deliberations on the evidence in the case? Number 27? 27, are you telling the [c]ourt that if you were selected to be on this case, that you’re going to allow the age of the defendant to overweigh [sic] any evidence that you hear from the witness stand?
A: I [Stuart Sanders] would agree with the previous statement and just say I would be influenced by that.
BY THE COURT: All right. Thank you. Number 20, what is your answer to that?
A: I [Tina Mobbs] have a daughter that’s 14, so yes, I would have to take that into consideration.
BY THE COURT: Okay. Thank you, ma’am. Anybody else? Number 4, Ms. Byrd?
A: I [Marilyn Byrd] likewise think that I’m too much into the grandmother thing. I’ve got three grandchildren right in that age group, and I have a tendency to be a little lenient with them.
BY THE COURT: All right, Ms. Byrd. So in fairness to the State of Mississippi, you feel like you probably should not sit on this case then; is that right?
A: I would feel like — I don’t think I could be as fair as I should be.
BY THE COURT: All right. Number 5, did you raise yours, Ms. Marin?
A: Yes. I [Brenda Marin] too don’t feel that I could be as objective as I might could be because of the age involved.

Defense counsel attempted to rehabilitate both Byrd and Marin.

BY DEFENSE COUNSEL: Now, Ms. Byrd? I know you had some reservations about standing in judgment on a boy 14 years old because you have some children or grandchildren at that age.
A: Yes, I do.
BY DEFENSE COUNSEL: Would you agree with me not because of your personal reservations about standing in judgment of such a young man, could you set that aside and listen to the evidence and just apply the law as you see fit? Could you set aside your personal reservations and follow the law as the Judge will direct you to do? Could you do that?
A: I will do my best.
BY DEFENSE COUNSEL: Okay. And Ms. Marin?
A: Yes.
BY DEFENSE COUNSEL: I know you were in the same position, and I ask the same-I do ask that same question because I want a fair jury, and I want somebody to sit here and hear the evidence. Obviously we have personal preferences. The State is entitled to a fair trial. But as long as you can sit there and apply the law as you see fit, could you do that?
A: Like the lady next to me, I could try. I have a very soft spot in my heart for the younger group.

The circuit court struck each of the above potential jurors for cause.

¶ 28. The Mississippi Supreme Court has stated that “a defendant does not have a vested right to any particular juror but only the right to be tried by a fair and impartial jury.” Smith v. State, 724 So.2d 280, 328 (¶ 193) (Miss.1998) (quoting Johnson v. State, 631 So.2d 185, 191 (Miss.1994)). Furthermore, the circuit court “has a duty to ensure ‘that a competent, fair and impartial jury is empaneled.’ ” Neal v. State, 15 So.3d 388, 398 (¶ 20) (Miss.2009) (quoting Tighe v. Crosthwait, 665 So.2d 1337, 1339 (Miss.1995)); see also Miss.Code Ann. § 13-5-79 (Rev. 2002) (stating that “[a]ny juror shall be excluded ... if the court [is] of [the] opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error”). Finally, a circuit court’s “determination that the jury is impartial will not be overturned by [an appellate court] absent an abuse of discretion.” Neal, 15 So.3d at 399 (¶ 20) (citation omitted).

¶ 24. The excluded jurors all stated that they would be influenced by Dante’s age and could not be totally impartial. The circuit court was statutorily bound to exclude potential jurors who stated that they could not try the case impartially. Therefore, we find no merit to this assignment of error.

5. Statements Made to Private Security Guards

¶ 25. Dante argues that his statements made to two security guards were inadmissible because they were obtained without a Miranda warning. Our supreme court has held that “for private conduct to be turned into state action, there must be a clear nexus between the state or law enforcement and a private investigation.” DeLoach v. State, 722 So.2d 512, 519 (¶ 26) (Miss.1998). In DeLoach, the court held that a private security guard hired by a public-housing authority was not required to give a Miranda warning. Id. at (¶ 29). The court concluded that “[t]he mere fact that the security guards performed their duties on public or city property, or for the public’s benefit, does not make them state actors....” Id. at (¶ 28).

¶ 26. At Dante’s suppression hearing, Jeffrey Jones testified that he was employed by Asset Protection and Security Services (APSS). APSS contracted with the Federal Emergency Management Agency (FEMA) to provide security services at the FEMA trailer park where Dante and Dante’s father lived. Jeffrey testified that in addition to basic security training, he was trained to use handcuffs, batons, mace, and guns. Additionally, he received training from the United States General Services Administration (GSA) on bombs and bomb scares. Jeffrey further testified that guards who patrolled the trailer park wore uniforms and a ballistic vest and carried guns, batons, and mace.

¶ 27. When Jeffrey arrived at Dante’s father’s trailer, he drew his weapon and ordered Dante to exit the trailer and lie on the ground. Jeffrey then placed handcuffs on Dante. Dante asked Jeffrey, “What did I do?” Jeffrey answered, “Well, you know, you shot your dad. That’s what we’re being told. You know, that’s what we’re here for. Biloxi P.D. is on the way, and that’s the reason I’m restraining you.” Jeffrey then told Dante, “I’m not placing you under arrest. You’re being restrained until Biloxi [P.D.] gets here.” Jeffrey then asked Dante, “Where is the gun?” Dante replied, “I hid it under a trailer.” Jeffrey testified that he did not give Dante a Miranda warning.

¶ 28. Based on DeLoach, we find that the APSS security guards were not required to give Miranda warnings to Dante. Like the guards in DeLoach, the security guards were employed by a private security company who had contracted to provide security with a government agency, FEMA. While the APSS security guards received some government training, we do not find that such training constitutes a sufficient “nexus” to elevate the private investigation by the guards to a state action.

¶ 29. Even if the APSS security guards were found to be state actors, the public-safety exception to Miranda would apply. The United States Supreme Court has held that Miranda warnings are not required where “police officers ask questions reasonably prompted by a concern for the public safety.” New York v. Quarles, 467 U.S. 649, 656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). In Quarles, a woman approached the police and told them that she had been raped. Id. at 651. She told the police that the man had a gun and had entered a nearby supermarket. Id. at 651-52. A police officer entered the supermarket and apprehended a man who matched the woman’s description of her attacker. Id. at 652. As the officer frisked the suspect, he noticed that he was wearing an empty gun holster. Id. The officer asked the suspect where the gun was, and the suspect answered, “the gun is over there.” Id. The Quarles Court held that the suspect’s answer was admissible under the public-safety exception to Miranda. Id. at 655.

¶ 30. In this case, the APSS security guards knew that a trailer-park resident had been shot; however, when they arrived at the scene, Dante was not in possession of a gun. Additionally, Jeffrey testified that a small crowd had formed at the trailer. Even if the APSS security-guards were found to be state actors, they were entitled to ask Dante about the gun’s location under the public-safety exception to Miranda. Based on DeLoach and Quarles, we find that the circuit court properly admitted Dante’s tatements to APSS security guards. This issue is without merit.

6. Statements Made to Biloxi Police Officers

¶ 31. Dante argues that the circuit court erred in denying his motion to suppress his videotaped statement to Biloxi police officers because the statement was involuntary. Dante asserts that his age, his inexperience with law-enforcement interrogation, and the use of “coercive tactics” by the police rendered his statements inadmissible.

¶ 32. “For a confession to be admissible, it must have been given voluntarily and not given as a result of promises, threats or inducements.” Nelson v. State, 10 So.3d 898, 910 (¶ 52) (Miss.2009) (quoting Martin v. State, 871 So.2d 693, 701 (¶ 29) (Miss.2007)). “A confession is voluntary when, taking into consideration the totality of the circumstances, the statement is the product of the accused’s free and rational choice.” Wilson v. State, 936 So.2d 357, 361-62 (¶ 8) (Miss.2006) (citing Jacobs v. State, 870 So.2d 1202, 1207 (¶ 10) (Miss.2004)). “This totality-of-the-cireum-stances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved.” Dancer v. State, 721 So.2d 583, 586 (¶ 19) (1998) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).

¶ 33. Before beginning the interrogation, Officer Kimball told Dante, “Just got off the phone with your mom, Dante, ok. She knows I’m talking to you.” Dante contends that Officer Kimball’s statement implied that his mother approved of the interrogation and wanted Dante to confess. In support of his contention, Dante cites Carley v. State, 739 So.2d 1046 (Miss.Ct.App.1999) and Murray v. Earle, 405 F.3d 278, 289 (5th Cir.2005). In Carley, this Court found that a fourteen-year-old’s confession was involuntary based, in part, on promises of religious salvation made by the police. Carley, 739 So.2d at 1053 (¶ 27). In Murray, the United States Fifth Circuit Court of Appeals found that an eleven-year-old’s confession was involuntary where “the police officers represented to [her] that they had already talked to everyone in her family, that everyone ‘knew’ what happened, and that she could help her family only by telling the truth.” Murray, 405 F.3d at 289.

¶ 34. We do not find that Officer Kimball’s statement to Dante at the beginning of the interrogation amounts to the type of overreaching and coercive tactics found in Carley and Murray. Officer Kimball simply informed Dante that she had spoken to his mother and that his mother knew that Dante was speaking to the police. Officer Kimball’s statement included no promises of leniency or reward in exchange for Dante’s confession-in fact, it did not even request a confession from Dante. Dante’s argument that Officer Kimball’s statement somehow implied that his mother wanted him to speak to the police amounts to mere speculation.

¶ 35. During the videotaped interview, Officer Kimball verbally informed Dante of his Miranda rights and gave Dante a waiver form, which Dante signed. Officer Kimball asked Dante whether he understood his rights, and he indicated that he did. There is no evidence that Dante lacked the intellectual capacity to understand his rights. Officer Kimball testified that during the interview, Dante was articulate, coherent, and was not intoxicated or under the influence of drugs. Furthermore, Officer Kimball testified that Dante was not coerced, threatened, or promised anything in exchange for his confession.

¶ 36. Dante contends that because of his age, the absence of a parent, attorney, or other friendly adult during the interrogation renders his statement involuntary. However, Dante never asked to speak to an attorney, his mother, or any other adult during the interrogation. Furthermore, our supreme court has held that in crimes where the “circuit court has original jurisdiction, ‘age ha[s] no special bearing on [a child’s] ability to be questioned without a parent and voluntarily waive his rights.’ ” Clemons v. State, 733 So.2d 266, 270 (¶ 14) (Miss.1999) (quoting Blue v. State, 674 So.2d 1184, 1205 (Miss.1996) (overruled on other grounds)). Because Dante was accused of murder, he was no longer afforded the protections of the Youth Court Act, which requires notification of a judge and the child’s parent or guardian when a child is taken into police custody. Miss.Code Ann. 43-21-303(3) (Rev.2009). Therefore, the fact that Dante was interviewed without a parent, guardian, or other friendly adult present does not render his statement inadmissible.

¶ 37. Based on the totality of the circumstances, we find that the circuit court did not err in determining that Dante’s confession was voluntary and admissible. This issue is without merit.

7. Constitutionality of Dante’s Life Sentence

¶ 38. Dante argues that his mandatory life sentence constitutes cruel and unusual punishment and is unconstitutional. Under Mississippi law, “[e]very person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.” Miss. Code Ann. § 97-3-21 (Rev.2006). The statute carries a mandatory life sentence, and it does not afford the trial judge any sentencing discretion.

¶ 39. While a sentence may be subject to attack if it is “grossly disproportionate” to the crime committed, a sentence will not be subject to appellate review when it falls within the limits prescribed by statute. Johnson v. State, 950 So.2d 178, 183 (¶ 22) (Miss.2007). Furthermore, our supreme court has held that “providing punishment for crime is a function of the legislature, and, unless the punishment specified by statute constitutes cruel and unusual treatment, it will not be disturbed by the judiciary.” Id. (citing Presley v. State, 474 So.2d 612, 620 (Miss.1985)). Finally, the United States Supreme Court has held “that a sentence does not need to take into account ‘individual degrees of culpability’ to be constitutional, and Congress may ‘define criminal punishments without giving the courts any sentencing discretion.’” Edmonds v. State, 955 So.2d 864, 895 (¶ 96) (Miss.Ct.App.2006) (rev’d on other grounds by Edmonds v. State, 955 So.2d 787 (Miss.2007)) (quoting Chapman v. United States, 500 U.S. 453, 466-67, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)).

¶ 40. In Edmonds, Tyler Edmonds was convicted of the murder of Joey Fulgham and sentenced to life imprisonment. Edmonds, 955 So.2d at 790 (¶ 2). Edmonds was thirteen years old at the time of the murder. Id. at (¶ 3). Because our supreme court found that Edmonds had been denied a constitutionally fair trial, it reversed and remanded the case for a new trial, and it did not reach the issue of whether Edmonds’s life sentence was unconstitutional. Id. at (¶ 2).

¶ 41. This Court did address the issue of whether Edmonds’s life sentence was unconstitutional, and we held as follows:

The Mississippi [L]egislature has explicitly legislated that convictions for murder are intended to carry life sentences. No exception is named in the statute for a defendant of tender years. The fact that the [L]egislature has specifically written the code so as to expose a minor to prosecution in the circuit court as an adult indicates that juveniles prosecuted for grievous offenses, such as the one here, are intended to be tried and sentenced like an adult. The special exceptions and protections rendered to defendants of tender years are reserved for juveniles prosecuted in youth court. Therefore, despite the fact that no discretion is given the trial court by the statute, Edmonds’s sentence is still constitutional, and the court did not err in sentencing Edmonds to life. Indeed, any other sentence would have constituted error on the part of the court, since it had no discretion to impose a different sentence.

Edmonds, 955 So.2d at 895 (¶¶ 97-98).

¶ 42. Despite this Court’s holding in Edmonds, Dante argues that the recent United States Supreme Court decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) supports his argument that his life sentence is unconstitutional. However, Graham is distinguishable from Dante’s case. In Graham, the Court held that juvenile offenders could not be sentenced to life imprisonment for nonhomicide crimes. Id. at 2034. The Court did not expressly address the constitutionality of imposing life sentences on juveniles who commit murder. However, the Court did draw a distinction between murder and other violent crimes:

The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. There is a line between homicide and other serious violent offenses against the individual. Serious nonho-micide crimes may be devastating in their harm but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability. This is because life is over for the victim of the murderer, but for the victim of even a very serious nonhomicide crime, life is not over and normally is not beyond repair.

Id. at 2027 (internal quotations and citations omitted).

¶ 43. The Graham Court refused to extend its holding beyond the context of juveniles who commit nonhomicide crimes. Additionally, the Court expressly stated that murder was distinguishable from other violent crimes. Given the existing precedent and state law, we find no basis for extending the holding in Graham to juveniles who commit murder. This issue is without merit.

¶ 44. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT 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 HARRISON COUNTY.

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

CARLTON, J.,

dissenting:

¶ 45. I dissent from the majority’s opinion and respectfully submit that I would reverse and remand the present case for a new trial. I specifically write as to issue three in the majority’s opinion that concerns the trial court’s denial of Dante Evans’s request for the appointment of an expert on post-traumatic stress disorder (PTSD). I find this issue to be case dis-positive due to its impact upon Evans’s ability to prepare and present his defense. Evans was denied a fair trial and due process as a result of the trial court’s denial of his request for a court-appointed expert to assist in presenting his defense. I submit that Evans should have been allowed funds to hire an expert in the field of psychiatry to testify as to the impact of his previously diagnosed PTSD on his mental state at the time he committed the underlying offense in order to allow for the adequate preparation and presentation of his theory of imperfect self-defense to the jury-

¶ 46. Without the assistance needed by an expert regarding his PTSD, Evans was unable to present his theory of imperfect self-defense to show that he lacked the requisite mental state for murder. The record shows that Evans was subjected to years of violent domestic and child abuse resulting in a previous diagnosis of PTSD. The record further reflects that due to his current home environment, Evans lived in a constant state of hostility, fear, and abuse. The record revealed that Evans’s current home environment was permeated with violent outbursts and physical attacks upon Evans, a minor, by a man who possessed legal authority, legal custody, and legal control over him, his father and legal guardian. Without the requested psychiatric expert assistance, Evans was unable to explore or present sufficiently the necessary evidence to show how these tumultuous circumstances impacted his mental state at the time that he committed the offense to support his theory of imperfect self-defense.

¶ 47. Additionally, the record shows that the court appointed an expert, a psychologist, who evaluated Evans’s competency to stand trial and discovered that Evans had been previously diagnosed in 2001 with PTSD. However, this expert lacked the qualifications needed to testify as to the effect of PTSD on Evans’s mental state at the time of the offense for which he was indicted. In fact, the psychologist verbally recommended to the defense that the defense hire an expert in the field of psychiatry to aid in Evans’s defense by testifying as to the impact of PTSD on one’s mental state.

¶ 48. Therefore, I submit that the majority erred in finding that since the record failed to support Evans’s theory of imperfect self-defense, then the trial court’s denial of Evans’s request to appoint an expert on PTSD was not error. I contend, in contrast, that the record only lacked sufficient evidence warranting an imperfect self-defense jury instruction because the trial court denied Evans’s request for the expert assistance needed to present his theory of imperfect self-defense and, more specifically, the issue related to his mental state at the time of the offense. Thus, I assert that the trial court abused its discretion in denying Evans’s request for a court-appointed expert, and in doing so, the trial court violated Evans’s due-process rights. The court’s denial of Evans’s request for expert assistance denied Evans of his right to a fair trial because Evans, an indigent minor, lacked the funds necessary to hire an expert to testify as to the effects of PTSD on his mental state. See Johnson v. State, 476 So.2d 1195, 1202 (Miss.1985) (quoting Ruffin v. State, 447 So.2d 113, 118 (Miss.1984)) (“[T]he doctrine of fundamental fairness, guaranteed by the Due Process Clause of the Constitution, at times requires authorization for appointment of a particular expert or investigator.”). See also State v. Janes, 121 Wash.2d 220, 850 P.2d 495, 503 (1993) (quoting Steven R. Hicks, Admissibility of Expert Testimony on the Psychology of the Battered Child, 11 L. & Psychol. Rev. 103,104 (1987)) (“Without the aid of expert testimony on the psychology of battered children, the jury will be unable to appreciate the manner in which the abused child differs from the unabused child.... Expert testimony can help the jury understand the sense of powerlessness, fear, and anxiety which permeate the battered child’s world.”).

¶ 49. After reviewing the record, I contend that Evans, through the psychologist’s testimony, who was appointed by the court to determine Evans’s competency to stand trial, met his burden of showing that a substantial need existed for a court-appointed expert to testify as to the effects of PTSD. Howell v. State, 989 So.2d 372, 390 (¶ 60) (Miss.2008) (quoting Ruffin, 447 So.2d at 118) (“An indigent’s right to defense expenses is conditioned upon a showing that such expenses are needed to prepare and present an adequate defense.”); Hunt v. State, 687 So.2d 1154, 1161 (Miss.1996); Butler v. State, 608 So.2d 314, 321 (Miss.1992) (providing that expert assistance should be granted upon a showing of substantial need); Fisher v. City of Eupora, 587 So.2d 878, 883-84 (Miss.1991).

¶ 50. In closing, I recognize that appellate courts utilize the following standard of review when considering this issue: “to reverse, the trial court’s denial of expert assistance must be an abuse of discretion ‘so egregious as to deny the defendant due process and where the defendant’s trial was thereby rendered fundamentally unfair.’” Hunt, 687 So.2d at 1161 (quoting Fisher, 587 So.2d at 883). The Mississippi Supreme Court has acknowledged that courts are to consider the following factors in deciding whether a defendant was denied a fair trial when the trial court failed to appoint a requested expert: (1) the degree of access the defendant has to the State’s expert; (2) whether those experts were available for rigorous cross-examination; and (3) the lack of prejudice or incompetence by the State’s expert. Fisher, 587 So.2d at 883 (citing Johnson v. State, 476 So.2d 1195, 1203 (Miss.1985)).

¶ 51. After reviewing the factors articulated in Fisher, as noted above, I submit that Evans was denied a fair trial by the trial court’s denial of his request for an expert in psychiatry. The record in the present case shows that the court-appointed expert, a psychologist, failed to possess the requisite qualifications to address the impact that the previously diagnosed PTSD had upon Evans’s mental state at the time that he committed the acts that killed his father, and the defense possessed no access to a state psychiatric expert in the area of PTSD. The trial court’s denial of Evans’s requested jury instruction on the theory of imperfect self-defense shows that prejudice occurred to Evans’s case since the denial of the expert assistance prevented Evans from presenting evidence necessary to support such an instruction. Expert assistance could also have shown how the prior beatings and abuse of Evans by his father were relevant to his mental state at the time that he committed the offense. See generally M.R.E. 803(3) (Allowing statements to be admitted into court as admissible hearsay if it is “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health....”)). I, therefore, submit that the trial court erred in denying Evans’s request to have an expert appointed to present evidence pertaining to his mental state at the time that he committed the underlying offense.

¶ 52. Additionally, I recognize that the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), delineated three factors to be utilized in making a determination as to whether a defendant is entitled to an expert’s assistance in the defense of his case. Richardson v. State, 767 So.2d 195, 199 (¶ 19) (Miss.2000). These factors include: “[(]1) the private interest that will be affected by the action of the State; [ (]2) the governmental interest that will be affected if the safeguard is to be provided; and [ (]3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.” Id. Like the Fisher factors, the standard set forth in Ake, when applied to this case, also demonstrate that Evans provided the required substantial showing of a specific need for expert assistance to present his defense related to his mental state when the offense was committed due to his PTSD and current hostile environment. The record shows that no substitute psychiatric expert was provided, and because of this, Evans suffered an erroneous deprivation of his ability to present a defense. See Jordan v. McKenna, 573 So.2d 1371, 1377 (Miss.1990); Norris v. State, 490 So.2d 839, 843 (Miss.1986) (Experts testified that Norris suffered from PTSD, wherein he relived the emotional trauma of Vietnam in “flashbacks” and that PTSD could remain latent until triggered causing the flashback to previous trauma. Experts disagreed, however, as to whether the defendant understood right from wrong at the time of the offense). See also Penry v. Lynaugh, 492 U.S. 302, 324, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (noting that “mental retardation and history of abuse is thus a two-edged sword: it may diminish [the petitioner’s] blameworthiness for [the] crime even as it indicates that there is a probability that he will be dangerous in the future”).

¶ 53. Every accused has a right to present his or her theory of defense to the jury, see Chinn v. State, 958 So.2d 1223, 1225 (¶ 13) (Miss.2007); Wade v. State, 748 So.2d 771, 774-75 (¶¶ 8-13) (Miss.1999), and for that reason, I would reverse Evans’s conviction and remand this case to the trial court for further proceedings consistent with this opinion.

BARNES AND ISHEE, JJ„ JOIN THIS OPINION.

      . Crockett's first name does not appear in the record.

      . The letter was not introduced into evidence, only marked for identification.

      . Specifically, Dr. Smallwood was asked to determine the following:
      A. Whether the Defendant, at the time of the alleged crime(s) with which the Defendant is being charged, was of sufficient mental capacity to distinguish between right and wrong and comprehend the nature and the quality of said act(s);
      B. Whether the Defendant is now in possession of mental faculties so as to enable [the] Defendant to comprehend the nature of the charge(s) against him and rationally aid in the conduct of his defense;
      C. Whether the Defendant is in such condition of mind and memory as to be able to recall the evidence connected with the offense(s) with which [the] Defendant is charged so as to enable [the] Defendant to advise counsel in a rational manner and to testify at the trial of their [sic] case if so called upon to do so;
      D. Whether at the time [the] Defendant allegedly committed the crime(s) with which he is charged, said Defendant suffered from mental disease, injury, or congenital deficiency such that because of a delusional compulsion, his will to resist committing the acts which constitute the crime(s) with which he is charged was overmastered.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Eighth Amendment to the United States Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Mississippi Constitution contains a similar prohibition: "Cruel or unusual punishment shall not be inflicted, nor excessive fines be imposed.” Miss. Const. art. 3, § 28.

      . Under a theory of imperfect self-defense, "an intentional killing may be considered manslaughter if done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent great bodily harm." Moore v. State, 859 So.2d 379, 383 (¶ 9) (Miss.2003) (quoting Wade v. State, 748 So.2d 771, 775 (¶ 12) (Miss.1999)). Section 97-3-35 defines manslaughter 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 "a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce homicide from the grade of murder to that of manslaughter. 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." Nolan v. State, 61 So.3d 887, 892, 2011 WL 1797005 *5 (¶ 26) (Miss.2011) (quoting Tait v. State, 669 So.2d 85, 89 (Miss.1996)). The issues surrounding immediacy are questions of fact and must be resolved based upon the specific facts of each case and the defendant’s condition or temperament. Id. at 90-91 (¶ 30) (citing Hartfield v. State, 186 Miss. 75, 189 So. 530, 532 (1939); Haley v. State, 123 Miss. 87, 85 So. 129, 131—32 (1920)).

      . I pause to note that the psychologist came upon records showing that Evans had been diagnosed with PTSD prior to the his father’s demise, which occurred in 2007.

      . The record reveals that the defense proffered to the trial court that the court-appointed psychologist provided a written report of her examination of Evans and also verbally informed the defense that she recommended that Dr. Gerald O’Brien, a psychiatrist, be retained by the defense as an expert on PTSD.

      . The defense explained to the trial court the need for a psychiatrist to testify as to the effects of PTSD on Evans’s mental state to prove their theory of imperfect self-defense. The defense informed the trial court that the court-appointed psychologist came upon records showing that Evans had been diagnosed at a very young age with PTSD. The defense also explained to the trial court that the court-appointed psychologist verbally recommended to the defense that Dr. O’Brien be hired.

      . Jordan is a civil case that involved a rape victim who developed PTSD. Jordan, 573 at 1377. At trial, a psychiatric PTSD expert testified that those afflicted with PTSD often times have numbed emotions and restricted emotional ranges. Id. The PTSD expert also explained that those suffering from PTSD are always on the lookout for danger and physically relive their trauma when in stressful situations. Id. Jordan testified that she endured night mares, carried a gun, and lived in constant fear. Id.