author: GRIFFIS, P.J.,

text:
    Charles SHORTIE, Appellant v. Rochelle GEORGE, Individually and as the Personal Representative for and on Behalf of the Wrongful Death Beneficiaries of Oner K. Shortie, Deceased, Appellee
    NO. 2015-CA-00944-COA
    Court of Appeals of Mississippi.
    05/23/2017
    Rehearing Denied October 10, 2017
    Certiorari Denied December 14, 2017

      ATTORNEYS FOR APPELLANT: WILLIAM R. STRIEBECK, ROBERT A. BIGGS III '
    ATTORNEY FOR APPELLEE: JAMES BYRNES GRENFELL
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. This appeal considers whether Mississippi or South Carolina law should govern the distribution-of settlement funds in a wrongful-death action where a South Carolina resident was killed in a motor-vehicle accident in Mississippi. The circuit court determined that Mississippi law would govern who the proper beneficiaries were and the amount each would take. We affirm and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Charles and Oner Shortie were married residents of South Carolina. Oner had five adult children from a previous marriage: Rochelle George, Stephanie Nobles, Erlene Alexander, Rebecca Rogers, and Kristopher Alexander. On March 26, 2014, Charles and Oner were involved in an accident in Sunflower County, Mississippi. Oner died as a result of the injuries she sustained.

¶3. On April 3, 2014, Rochelle filed a complaint in the Circuit Court of Sunflower County, Civil Action No. 2014-0088. Rochelle filed the complaint individually and as the personal representative of the decedent. The complaint asserted a wrongful-death action, pursuant to Mississippi Code Annotated section 11-7-13 (Rev. 2004), and demanded damages for the benefit of Oner’s wrongful-death beneficiaries.

¶ 4. In May 2014, Charles filed a petition for formal probate of Oner’s estate in South Carolina. In August, the South Carolina court appointed Charles as the personal representative of Oner’s estate. The court also ruled that Oner died intestate and determined that Oner’s only known heirs were Charles and Oner’s five adult children from a previous marriage.

¶ 5. On September 8, 2014, Charles’s attorneys entered their appearance in Rochelle’s lawsuit. Charles’s pleading also expressly “join[ed] in the complaint filed ... by Rochelle ... as personal representative on behalf of all wrongful-death beneficiaries of Oner.” In February 2015, Charles filed his own complaint in the circuit court, Civil Action No. 2014-0271. Charles was the only named plaintiff, and he demanded the recovery of damages for his personal injuries sustained' in the accident, which included past, present, and future mental anguish; pain and suffering as a result of his injuries; medical bills resulting from his injuries; and lost wages. The complaint also requested damages for bystander liability. Charles’s complaint did not demand any damages on behalf'of or for Oner’s wrongful-death beneficiaries.

¶ 6. After the parties agreed to consolidate the two cases, the circuit court then referred the case to mediation. A successful mediation was held on April 15, 2015. The parties reached a settlement agreement. However, the next day, Charles’s attorneys informed Rochelle’s attorney that Charles intended to pursue distribution of the wrongful-déath settlement proceeds to the beneficiaries under the law of South Carolina. Under South Carolina law, Charles would be entitled to receive fifty percent of the settlement funds, and Oner’s children would share the remaining fifty percent. S.C. Code Ann. §§ 62-2-102 (2014). Under Mississippi law, Charles and Oner’s children would receive equal shares. Miss. Code Ann. § 11-7-13 (Rev. 2004).

¶ 7. On April 20, 2015, Rochelle filed a motion to approve the settlement and distribute the settlement proceeds to the wrongful-death beneficiaries. In this motion, Rochelle asserted that Mississippi law governed the distribution. Charles responded with a motion for a declaratory judgment, claiming that South Carolina law governed the distribution. Rochelle points out that this was the first pleading in which Charles claimed that there was -a choice-of-law issue before the circuit court.

¶ 8. On April 30, 2015, the circuit judge issued a twelve page, single spaced order that'decided the pending motions. The circuit judge concluded:

Balancing all of the above elements, this court finds [that] Mississippi, has the most significant relationship with the occurrence and with the parties. That South Carolina has any interest has not been “expressly shown” by any party. The: parties waived this issue by not raising the same in a timely manner. Even if this had been timely raised, Mississippi [r]ules of intestate succession apply to personal property located in Mississippi. Even if the complaints were somehow construed as being [an] action for [or] on behalf of the Estate of Oner Shortie, Mississippi laws Still apply to intestate succession of personal property for a nonresident decedent.

¶ 9. On June 1, 2015, the circuit judge executed a final declaratory judgment. It read:

Wherefore, the court hereby declares that the proper allocation of the wrongful[-]death proceeds of Oner K. Shortie, deceased, be distributed to the wrongful[-]death beneficiaries under section 11-7-13 of the' Mississippi Code of 1972, Annotated as [a]mended, with each .of the six (6) heirs receiving one-sixth (1/6) of the wrongful[-]death benefits.

The circuit judge also added the following language in his own handwriting: “Pursuant to Rule 54(b) [of the Mississippi Rules of Civil Procedure] the Court expressly determines that there is no just reason for delay in entering Final Judgment as to the parties[,] and the Clerk is directed to enter this order as a Final Judgment.” It is from this judgment that Charles now appeals.

ISSUES PRESENTED

¶ 10. Charles identified the following issues on appeal:

I. The trial court erred as a matter of law when it failed to apply a proper " choice-of-law' analysis when it determined Mississippi law and not South Carolina law applied to the distribution of wrongful[-]death proceeds.
II. The trial court erred as a matter of law when it determined Charles Shortie “waived” his right to raise the conflicts[-]of[-]law issue.
III. The trial court erred as a matter of law when it allowed a party to add documents to the record in violation of Rule 10(f) [of the Mississippi Rules of Appellate Procedure].

STANDARD OF REVIEW

¶ 11. All of the issues raised in this appeal are purely questions of law. This appeal raises no questions of fact. We review a trial court’s conclusions of law de novo. In re Estate of England, 846 So.2d 1060, 1064 (¶ 12) (Miss. Ct. App. 2003).

ANALYSIS

¶ 12. The review of every wrongful-death claim in Mississippi begins with section 11-7-13 and Long v. McKinney, 897 So.2d 160 (Miss. 2004). Section 11-7-13 is the statutory authority for a wrongful-death claim, and it defines the beneficiaries who are entitled to recover damages. In Long, the supreme court provided an in-depth, comprehensive review of and guidance for wrongful-death litigation in Mississippi. The court recognized that there were “many troubling issues related to wrongful-death litigation. The same issues and problems continually appear, and have been addressed on an ad hoc basis, leaving little in the way of dependable precedent.” Long, 897 So.2d at 163 (¶ 3). The supreme court noted: “Today, we are provided an opportunity to address and clarify several of these problems, and to provide guidance for these issues to the bar and judiciary.” Id. at (¶ 4). The court then concluded:

However, for several reasons, we must reject the proposition that the first heir to reach the courthouse with a lawyer will “control the litigation” to the exclusion of participation by other heirs who wish to join with other counsel of their choosing. - •
Perhaps the most glaring fallacy in such a policy is the potential for conflicts of interest which - should a view contrary to our view today prevail - would be both legislatively ordered and court sanctioned.
We are persuaded that, absent the [wrongful-death sjtatute, wrongful[-]death litigation would be reasonably uncomplicated. The rules to be followed are not substantially different from those which apply to any personal-injury suit where multiple plaintiffs pursue a claim against one or more defendants. Such matters as joinder, “[c]on-trol of the litigation,” and participation by counsel, are left to the sound discretion of the trial judge. We observe few problems with such cases, and we are confident that today’s decision will bring wrongful[-]death litigation to its rightful place under the Mississippi Rules of Civil Procedure.

Id. at 178 (¶¶ 76-78).

¶13. Here, as in Long, we have an experienced and learned trial judge. Likewise, the lawyers for Oners’ children" and Charles are experienced in complex litigation and are excellent lawyers. Indeed, consistent with Long’s guidance, they have worked together reasonably well to pursue this -litigation and obtain a substantial settlement. We turn to the issues raised.

I. The trial court erred■ as a matter of la%o when it failed to apply a proper choice-of-law analysis when it deter- ■■■ mined Mississippi - law and not South Carolina law applied to the distribution of wrongful-death proceeds. • .

¶ 14. Charles argues that South Carolina law governs the distribution of the settlement proceeds. He claims the circuit judge made an incorrect choice-of-law decision. Rochelle disagrees and argues that the circuit judge was correct to apply Mississippi law. If not, Rochelle claims that Charles waived the issue.

A. Circuit Court’s Analysis

■. ¶ 15. The relevant language in the April 30, 2015 order is the following ruling:

Balancing all of the above elements, this court finds [that] Mississippi has the most significant relationship with the occurrence and with the parties. That South Carolina has. any interest has not been “expressly shown” by any party. The parties waived this issue by not raising the same in a timely manner. Even if this- had been timely raised, Mississippi [r]ules of intestate succession apply to personal property located in Mississippi. Even if the complaints were somehow construed as being an action for [or] on behalf of the Estate of Oner Shortie, Mississippi'laws still apply to intestate succession of personal property for a nonresident decedent.

The circuit court made three rulings. First," the court made a decision on the choice-of-law issue and ruled-that Mississippi law applies to the distribution of the wrongful-death settlement proceeds. Second, Charles waived the issue because he did not raise it in a timely manner. Third,, the Mississippi laws of intestate succession apply because the settlement proceeds are personal property.

¶ 16. The judge was incorrect to consider the laws of intestate succession. Our supreme court has held that the wrongful-death “statute creates a new cause of action that accrues at [the] death [of the decedent] in favor of the heirs listed in the statute.” England, 846 So.2d at 1066 (¶ 16). “Therefore, a wrongful[-]death action cannot become a part of the wrongful [-]death victim’s estate except in the circumstance when, as provided by the statute, no statutory heirs survived the wrongful[-]death victim.” Id. at 1067 (¶ 19). In other words “[t]he deceased may not devise that which he does not have.” Id.

¶ 17. At oral argument, Rochelle’s attorney agreed that the circuit judge was in error for this part of his ruling. We find that the circuit judge erred in the ruling that included the last two sentences of the order quoted above. But this does not affect the outcome of this appeal.

B. Choice-of-Law Principles

¶ 18. Charles and Rochelle presented a true conflict between the laws of Mississippi and South Carolina. Section 11-7-13 provides that “damages for the injury and death of a married woman shall be equally distributed to the husband and children.” (Emphasis added). Thus, under Mississippi law, Charles would receive one-sixth of the settlement proceeds, and each of Oner’s five children would receive one-sixth. Under South Carolina law, the wrongful-death recovery is to be distributed according to the laws of intestate succession. S.C. Code Ann. § 15-51-40 (1996). Thus, under South Carolina law, Charles would receive one-half of the settlement proceeds, and Oner’s five children would receive the other half. S.C. Code Ann. §§ 62-2-102, -103 (2014).

¶ 19. “[A] choice[-]of[-]law analysis arises only when there is a true conflict between the laws of two states, each having an interest in the litigation.” Zurich Am. Ins. v. Goodwin, 920 So.2d 427, 432 (¶ 8) (Miss. 2006). Recently, in Williams v. Clark Sand Co., 212 So.3d 804, 809 (¶¶ 17-18) (Miss. 2015), the Mississippi Supreme Court held:

The center-of-gravity analysis is a choice-of-laws mechanism that this Court uses to resolve conflicts of law. Mitchell v. Craft, 211 So.2d 509, 515 (Miss. 1968) (“This doctrine is ⅜ rule wh,ereby the court trying the action applies the law of the place which has the racist significant relationship to the event and parties, or which, because of the relationship or contact with the event arid parties, has the greatest concern with the specific issues with respect to the liabilities and rights of the parties to the litigation.” (citing 15A C.J.S. Conflict of Laws 8(2) (1967))); see also Zurich, 920 So.2d at 433; Restatement (Second) Conflict of Laws §§ 145, 146 (Am. Law Inst. 1971)....
Where there is a conflict of laws, Mississippi follows the Restatement (Second) Conflict of Laws.

(Internal citations omitted).

¶ 20. “In determining which [s]tate’s law to apply, Mississippi relies on the ‘center of gravity' doctrine of the Restatement.” Zurich, 920 So.2d at 433 (¶ 10) (citing Mitchell, 211 So.2d at 510). This doctrine is described as:

[A] rule whereby the court ... applies the law of the place which has the most significant relationship to the event and parties, or which, because of the relationship or contact with the event and parties, has the greatest concern with the specific issues with respect to the liabilities and rights of the parties to the litigation.

Id. In this wrongful-death action, we will first apply the law of the state where the injury occurred in order to determine the rights and liabilities of the parties. Mitchell, 211 So.2d at 516. However, if we find that another state has a more significant relationship to the occurrence and the parties, then we will ultimately apply the law of the other state. Id.

¶ 21. In McDaniel v. Ritter, 556 So.2d 803, 310 (Miss. 1989), the supreme court itemized the “[c]ontacts to be taken into account [when] applying the principles ... to determine the applicable law.” These contacts include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation, and place of business of the parties, (d) the place where the relationship, if any, between the parties is centered. Id. (citation omitted). “These contacts are evaluated according to their relative importance with respect to the particular issue.” Id.

C. Application of Choice-of-Law Principles

¶22. Rochelle argues that Mississippi law is the only applicable law in this case. She claims that (1) all the events occurred in Mississippi, (2) the wrongful-death lawsuit was filed in Mississippi, and therefore, (3) Mississippi law governs the issue on appeal. She also claims that South Carolina does not have the most substantial relationship to either the parties or the decedent.

¶ 23. As to Rochelle’s claim that Mississippi law controls every issue in the case, the supreme court has held that “the law of a single state does not necessarily control every issue in a given case. We apply the center[-]of[-]gravity test to each question presented .... ” Boardman v. United Servs. Auto. Ass’n, 470 So.2d 1024, 1031 (Miss. 1985).

¶ 24. Mississippi law controlled whether the defendants were negligent, and whether the plaintiffs were entitled to recover. However, the question here only involves the distribution of the wrongful-death settlement proceeds. We must consider the factors relevant to this choice-of-law issue and evaluate the contacts “according to their relative importance with respect to the particular issue.” McDaniel, 556 So.2d at 310.

(a) The place where the injury occurred.

(b) The place where the conduct causing the injury occurred.

¶ 25. The injury and the conduct causing the injury occurred in Mississippi.

(c) The domicile, residence, nationality, place of incorporation, and place of business of the parties.

¶ 26. The domicile and residence of Oner and Charles was South Carolina. Also, at the time of her death, two of Oner’s children were living with them in South Carolina. Thus, as of her death, the decedent and three of her wrongful-death beneficiaries were domiciled in and residents of South Carolina. At the time of the settlement, Charles was the only resident of South Carolina, and the remaining five beneficiaries lived in other states. None of the beneficiaries ever lived in Mississippi.

(d)The place ivhere the relationship, if any, between the parties is centered.

¶ 27. As of the date of her death, the place of the relationship between the parties was centered in South Carolina. Oner, Charles, and two of Oner’s children resided there.

D. Mississippi Cases

¶28. In Mitchell, two Mississippi residents died as the result of an automobile accident in Louisiana. Mitchell, 211 So.2d at 510. A wrongful-death lawsuit was filed in Mississippi, and a counterclaim was also filed. Id. The circuit-court judge gave the plaintiff a peremptory instruction on liability and on Mitchell’s counterclaim. The jury rendered a verdict in the amount of $12,000 against the defendant, which was appealed. Id, The court identified the issue as follows:

We are concerned here with two wrongful[-]death actions[ ], involving Mississippi residents and their Mississippi estates, and arising from a two-car collision [that] occurred in the State of Louisiana. The Mississippi adminis-tratrix of- the estate of one of the decedents sued, in a Mississippi court, the Mississippi administratrix of the estate of the other decedent, who in turn filed a counterclaim against the plaintiff. Both parties alleged negligence by the other’s decedent, and that such negligence was a contributing cause of the respective deaths. The question is, which state’s law is applicable—Mississippi or Louisiana?

Id. at 512, The court had to decide whether to apply Mississippi’s law on comparative negligence or Louisiana’s la\v of contributory. negligence, which would have barred the recovery. Id. at 510. The. supreme court ruled:

This case involves a choice-of-law or conflict-of-law problem in an. action for wrongful death resulting from an automobile accident, in which plaintiffs decedent and defendant’s decedent were in separate cars. Both decedents, were domiciled in Mississippi, their estates are being administered here, and whatever expectations they might have had were centered in Mississippi. This State has a comparative negligence statute and Louisiana has the common-law rule by which contributory negligence bars recovery. We modify the previously existing rule in this jurisdiction, which applied invariably the law of the place of injury, and hold that under the factual situation existing in this case, the most substantial relationships of the parties and the dominant interest of . the forum require application of Mississippi law

Id. Then, the court reasoned:

A primary consideration in determining applicable law is the advancement of the forum’s governmental interests. Mississippi’s interests in the present controversy áre evident, while Louisiana has none. The parties Were residents of Mississippi, and no citizen of Louisiana is involved. If there ⅛ any recovery on a new trial, it -will be by a Mississippi pláintiff-administratrix' or a defendant-' administratrix as counterclaimant, acting as officers of a Mississippi, court for the benefit of Mississippi citizens. This state is especially concerned with the protection of its injured domiciliaries and their families, and the distribution of its domiciliaries’ estates. The law selected and applied in this case will determine the effect of the contributory fault, if any, of plaintiffs and counterclaim-ant’s decedents. It will determine whether this negligence, if any, will preclude plaintiff or counterclaimant from recovery. It is this Court’s duty to further this State’s governmental interests. The comparative[-]negligence statute of this State has been effectively administered for many years and we have an interest in applying it to Mississippi residents. Finally, an important consideration is application of the better rule of law. We believe in our own law in this instance. Comparative negligence, although. utilized in diverse ways in only seven states, is a fairer and more economically equitable standard of liability than that of the common-law rule of contributory negligence.
This analysis leads quite definitely, we think, to the application of the substantive law of Mississippi in this case. These relevant choice-of-law or conflict-of-law considerations are factual, realistic, and can be tested by a qualitative process of evaluation.

Id. at 514.

¶ 29. The court determined that Mississippi possessed the dominant interest of the two forums, and' held that “Louisiana’s sole relationship with the occurrence [was] the purely adventitious circumstance'that the collision happened there.” Id. at 513 (emphasis added).

¶ 30. More recently, the supreme court considered a choice-of-law issue in a ease with facts very similar to this case. In re Estate of Blanton, 824 So.2d 558 (Miss. 2002) (overruled on other grounds as recognized by Clark v. Neese, 131 So.3d 556, 562 (¶ 21) (Miss. 2013)).

¶ 31. Bryce and Juanita Blanton were married residents of Mississippi. Id. at 559 (¶ 1). There were killed in an automobile accident while they were on vacation in Arkansas. Id. Bryce and Juanita had no children together, and they were survived by their adult children from previous marriages. Id. at 561 (¶ 7).

¶ 32. Bryce’s will was probated in Hinds County Chancery Court. Id. at 559 (¶ 1). His will provided that, if Juanita predeceased him, his estate would be distributed equally among Bryce’s children from a previous ■ marriage (Toñita Gonzales and Tim Blanton), and Juanita’s children .from a previous marriage (Steven DeFord, Charles DeFord, and Kimberly Burrell). Id. at 561 (¶ 8). Bryce’s will also named Toñita and Juanita’s adult sister, as his co-executrixes. Id. at (¶ 1). They filed a wrongful-death lawsuit in an Arkansas federal court. The lawsuit was settled for two million dollars. Id.

¶ 33. In the Hinds ■ County Chancery Court, the co-executrixes filed a petition to determine heirs and wrongful-death beneficiaries, and a petition for authority to settle doubtful claims, -disbursement of attorneys’ fees, and distribution of settlement proceeds. Id. They claimed that Arkansas law should apply because the deaths occurred in Arkansas. Id. at 559 (¶ 2). Also, they stated that there was an agreement for the distribution of the settlement-proceeds. Id. The agreement'was to divide the net settlement proceeds equally between Bryce’s and Juanita’s estates. Id. at 559-60 (¶ 2). Then, based on Arkansas law, Bryce’s portion would be divided between his two adult children and his five living, brothers and sisters. Id. at 560 (¶ 2). Juanita’s shard of the proceeds was dispersed in a separate civil action and was not a part of the appeal. Id.

¶ 34. Tim, Bryce’s son, filed an objection on the day of the scheduled hearing. Id, at (¶ 3). The chancellor continued the hearing, and Tim later filed a petition that objected to the application of Arkansas law. Id. at (¶ 4). After a hearing, the chancellor determined that Arkansas law applied and ordered the distribution of twenty-five percent to each of Bryce’s two children, and ten percent to each of Bryce’s five siblings, or their estates. Id. at (¶ 5). Tim appealed and the only issue was the distribution of Bryce’s share of the wrongful-death-settlement proceeds. Id. at 561 (¶ 9). Under Arkansas daw, Bryce’s children and his siblings were beneficiaries. Id. at (¶12). Under Mississippi law, only Bryce’s children weré beneficiaries. Id.

¶ 35. The court then held:

Just as in Mitchell, Arkansas’ sole relationship with the occurrence is the purely adventitious circumstance that the accident happened there. Bryce’s children correctly argue that Mississippi clearly has the most substantial contacts in the present case ....
Applying the rule of Mitchell, it is clear that Mississippi substantive law must be applied to the case sub judice. First, Bryce and Juanita were domiciled in Mississippi. All of Bryce’s brothers and sisters are domiciled in Mississippi. Tim is domiciled in Mississippi (Toñita lives in California). In fact, both decedents and six of the seven parties to this suit are domiciled in Mississippi; none are domiciled in Arkansas. Second, Bryce’s estate is being administered in Mississippi. Third, whatever expectations Bryce might have had were centered in Mississippi. Bryce’s last will and testament was drafted and witnessed in Hinds County, Mississippi. In his will, Bryce directed that if he and his wife died, he wanted the balance of his estate to be distributed equally among their five children. Nowhere does Bryce make provision for part of his estate to be distributed to his siblings. It would be fair to say that Bryce’s justified expectations were that, upon his death, his estate would be distributed equally to his children, not half to his children and half to his siblings. Mississippi law would provide for that outcome; Arkansas law would not. As in Mitchell, under the factual situation existing in this case, the most substantial relationships of the parties and the dominant interest of the forum require application of Mississippi law.

Id. at 562-63 (¶¶ 14-15). It is important to note that, in the choice-of-law analysis, the court gave great importance to the domicile of the parties, the fact that the decedent’s “estate [was] being administered in Mississippi,” and the fact that the expectations of the decedent “centered in Mississippi.” Id. at 562 (¶ 15). Also, the supreme court found that “Arkansas’ sole relationship with the occurrence [was] the purely adventitious circumstance that the accident happened there.” Id. at (¶ 14).

¶ 36. In both Mitchell and Blanton, the supreme court declined to apply the laws of the state where the accident occurred and the death/injuries occurred. Instead, the supreme court instructed that, in choice-of-law decisions, we are to look carefully at each state’s contacts, determine which state had the most significant relationships of the parties, and conclude which state has the dominant interest between the forums.

¶37. Because the issue before us is a legal question, our review is de novo. We are not required to defer to the trial court’s decision. When we consider the contacts, we recognize that (a) the place where the injury occurred and (b) the place where the conduct causing the injury occurred was Mississippi. However, we also recognize that (c) the domicile and residence and (d) the center of the parties’ relationship is in South Carolina. Consistent with Mitchell and Blanton, we find that South Carolina has the dominant interest because South Carolina was the domicile of Charles, Oner, and two of her children, as determined at the time of her death. None of the potential beneficiaries are residents of Mississippi. Also, Oner’s estate was probated in South Carolina, and her heirs were established under South Carolina law. We find that Oner’s expectations were centered in South Carolina, not Mississippi.

¶ 38. Mississippi only has a small interest in the distribution of the settlement among the potential beneficiaries. As discussed in Mitchell and Blanton, Mississippi’s “sole relationship with the occurrence is the purely adventitious circumstance that the accident happened there.”

¶ 39. We find that the choice-of-law analysis requires that the law of South Carolina apply to the distribution of the wrongful-death proceeds. We find the circuit court in error on this issue.

II. The trial court erred as a matter of law when it determined Charles “waived” his right to raise the con-flids-of-law issue.

¶40. We also recognize that the trial court held that Charles waived his right to raise the choice-of-law issue. The April 30, 2015 order ruled: “The parties waived this issue by not raising the same in a timely manner.”

¶41. Charles argues that the circuit judge incorrectly cited Owens v. Mississippi Farm Bureau Casualty Insurance, 910 So.2d 1065 (Miss. 2005). In Owens, Linda Owens filed a direct action against her uninsured motorist carrier. Id. at 1068 (¶ 8) The issue of waiver of a right to assert application of Tennessee law by the uninsured-motorist carrier was raised by the plaintiff for the first time on appeal. Id. at (¶ 12). The court held there was no waiver of the choice-of-law issue because the issue of which state’s law should apply was clearly placed before the trial court. Id. at 1072 (¶ 25). Charles claims that he “clearly place[d]” the choice-of-law issue squarely before the trial court in his cross-motion for a declaratory judgment, which he filed after the settlement agreement was reached.

¶ 42. Charles argues that he raised the choice-of-law issue when it became relevant and applicable to the case. He contends that there was no reason to dispute which state’s law applied to the distribution of the wrongful-death proceeds prior to the settlement agreement.

¶ 43. Rochelle argues that the question of waiver is “the single most important issue that this court should consider before addressing the conflict-of-laws issue.” She cites the principle that the “failure to timely and reasonably raise and pursue the enforcement of any ... affirmative matter or right” constitutes a waiver. Miss. Credit Ctr. Inc. v. Horton, 926 So.2d 167, 180 (¶ 44) (Miss. 2006).

¶ 44. In Horton, the trial court denied a motion to compel arbitration. Id. at 171 (¶ 1). Catherine Horton filed her lawsuit on December 27, 2002. Id. at 172 (¶ 6). The defendant did not include arbitration as an affirmative defense in its original answer, but did in its July 7, 2003 answer to an amended complaint. Id. at (¶ 7). Then, on March 16, 2004, the defendant filed a motion to compel arbitration. Id. at 173 (¶ 10). The supreme court held:

The record before us today clearly demonstrates that the [defendants asserted their right to compel arbitration in their respective answers. However, rather than proceeding within a reasonable time to file a motion to compel arbitration and request a hearing on the motion, defendants proceeded to substantially engage the litigation process by consenting to a scheduling order, engaging in written discovery, and conducting Horton’s deposition. Horton asserts that this participation in the lawsuit constituted a waiver of the [defendants’ right to compel arbitration. Although participation in the litigation is an important factor to be considered, more is required to constitute a waiver. Horton also asserts that [defendants waived the right to compel arbitration by their unreasonable delay in bringing the issue before the trial court for adjudication. We ñnd that, ordinarily, neither delay in pursuing the right to compel arbitration nor participation in the judicial process, standing alone, will constitute a waiver. That is to say, a party who invokes the right to compel arbitration and pursues that right will not ordinarily waive the right simply because of involvement in the litigation process, and a party who seeks to compel arbitration after a long delay will not ordinarily be found, to have waived the right where there has been no participation in, or advancement of, the litigation process. However, where—as here—there is a substantial and unreasonable delay in pursuing the light, coupled with active participation in the litigation process, we will not hesitate to find a waiver of the right to compel arbitration.
The amended complaint was filed on May, 5, 2003. The [i]nsurance [djefen-..dants filed their answers to the amended complaint on May 23, 2003, and MS Credit filed its answer to the amended complaint on July 7, 2003. The [defendants did not file a motion to compel arbitration or otherwise pursue their , right to arbitrate until March 22, 2004, a delay of eight months, all the while participating in the litigation process. The [defendants have'provided no plausible explanation for this delay.
Our holding today is not limited to assertion of the right to compel arbitration. A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.

Id. at 180 (¶¶ 41-44) (emphasis added) (footnotes omitted).

. ¶ 45. Rochelle also argues that the conflict of law between South Carolina and Mississippi over the distribution of settlement proceeds to the wrongful-death beneficiaries is a matter that should be raised promptly. “Early determination of which state law governs a case is essential for judicial economy, efficiency and fairness to the parties.” Bailey v. Wyeth Inc., 422 N.J.Super. 343, 28 A.3d 856, 860 (2008). The Bailey court also ruled that “a choice-of-law issue should be raised as soon as prudently possible to avoid prejudice, surprise, waste and delay.” Id. at 864. See also Kucel v. Walter E. Heller & Co., 813 F.2d 67, 74 (5th Cir. 1987) (holding that defendants have “an obligation to call the applicability of another state’s law to the court’s attention in time to be properly considered”).

¶ 46. In order to consider whether Charles waived his right to assert that South Carolina law should govern the distribution of the proceeds obtained as a result of the ■ wrongful-death claim, we must determine when the issue should properly be brought to the attention of the trial judge.

¶ 47. Charles claims that Blanton is authority for his decision to wait and bring this matter to the attention of the trial court only after the settlement was obtained. He is correct that Tim Blanton did not file his objection to the determination of the proper wrongful-death beneficiaries until after the settlement, and as such did not bring the choice-of-law issue to the court’s attention until that time. Blanton, 824 So.2d at 560 (¶ 4). In fact, Tim waited until the day the chancery court had a hearing scheduled to approve the settlement .and authorize the distribution. Id. at (¶ 3). However, we do not find this to be authority on the issue of waiver. There is no indication in Blanton that the co-execu-trixes or any affected individual asserted that Tim had waived the .right to make this claim.

¶ 48. To decide this issue, we must first consider when it should or could have been brought to the trial court’s attention. For example, it is expected that the parties’ agreement to arbitrate is a right .that should properly be brought to the court’s attention early in the litigation, and any delay or “active participation in. the litigation process” will suggest that the right has been waived. Horton, 926 So.2d at 180 (¶ 42). To answer this question, we examine the guidance in Long.

¶ 49. In Long, the supreme court considered many aspects of the wrongful-death case. The court announced certain procedures and guidance' for the attorneys that are instructive here:

By our decision today and the procedure announced below, we intend to eliminate the inherent conflict of interest and simplify the decisions to be made by trial .courts where more than one heir wishes to participate in the litigation to protect their individual interests. We also address the dilemma faced by counsel who have seemingly been forced into the uncomfortable position of representing a client with conflicts of interest.
The resolution of this case requires only that we address appropriate practice and procedure in wrongfulHdeath litigation.

Long, 897 So.2d at 171 (¶¶ 46-47). Then, the court said this about the .“[d]etermination of wrongfulHdeath. beneficiaries”:

Section 11-7-13- provides that wrong-fulHdeath litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. Mississippi] Code Anntotated section] 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a-decedent; that is, those who inherit in the absence of a will.' Although our statutes mandate no specific procedure for the identification of wrongfulHdeath beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should dó so early in the proceedings.

Long, 897 So.2d at 175-76 (¶ 67) (emphasis added, footnote omitted). The' supreme court followed this with a discussion about the “[c]hoice of attorneys and payment of attorney fees”:

Where, as here, one of the wrong-fulHdeath beneficiaries' proposes to engage counsel and file a 'wrongfulHdeath suit without participation of the personal representative of the decedent and all other beneficiaries, the beneficiary who files suit does so as the representative of all statutory beneficiaries and -must, within a reasonable time following the filing of the complaint, provide reasonable notice- (i) to all other wrongful[-]death beneficiaries; (ii) to the personal representative of the decedent if one has been appointed; and (iii) to each person who bears a relationship -to the deceased specified in section 11-7-13. Such notice should, at a minimum, include • the identity of the plaintiffs and defendants, the nature of the claims against those defendants, the identity of counsel representing the plaintiffs, and a copy of the complaint.
In addition, full disclosure is required of any agreement or arrangement for the payment of costs or attorney’s fees from the portion of recovery attributable to those receiving such notice. Should the personal representative[ •] or one or more of the beneficiaries join in the litigation with separate 'Counsel representing. their respective interests, the portion of recovery attributable to such claimants shall not be subject to such agreement or arrangement, absent written consent after full disclosure. However, the personal representative or any beneficiary may petition the court for a review of the proposed payment of costs and distribution of attorney fees, and the trial court may equitably adjust and allocate fees among the attorneys based on the quantitative and qualitative contribution of each to the case, provided however, that so long as an attorney is reasonably involved, and makes a reasonable contribution to all aspects of the litigation, no deduction should be made from his or her fees.

Id. at 176 (¶¶ 68-69) (footnotes omitted). The supreme court turned to a discussion on the “Control of the Litigation—‘First to File’”:

In his January 19, 2002[ ] order denying consolidation, the trial court characterized the phrase, “first to file an action has a right to prosecute it to its conclusion,” as an “old established rule,” which he held was not “diluted” by Franklin [v. Franklin ex. rel. Phillips, 858 So.2d 110, 122 (¶ 41) (Miss. 2003) ], which allowed consolidation of two wrongful[-]death suits for the same death. He believed such consolidation required agreement of the parties. Specifically, the trial court stated, “The Wrongful[-]Death Statute provides for any beneficiary to bring the action in behalf of all beneficiaries and the ‘first to file’ shall have control of the handling of the case.”
We recognize that ample dicta, and even some direct authority, exists under our prior case law which justifies the conclusions reached by the trial court here and by the federal court in Rampy [ex. rel. Rampy v. Austin, 718 F.Supp. 556, 561 (S.D. Miss. 1989) ]. However, for several reasons, we must reject the proposition that the first heir to reach the courthouse with a lawyer will “control the litigation” to the exclusion of participation by other heirs who wish to join with other counsel of their choosing. Perhaps the most glaring fallacy in such a policy is the potential for conflicts of interest which—should a view contrary to our view today prevail—would be both legislatively ordered and court sanctioned.
We are persuaded that, absent the [wrongful-death sjtatute, wrongful[-]death litigation would be reasonably uncomplicated. The rules to be followed are not substantially different from those which apply to any personal[-]injury suit where multiple plaintiffs pursue a claim against one or more defendants. Such matters as joinder, “[cjontrol of the litigation,” and participation by counsel, are left to the sound discretion of the trial judge. We observe few problems with such cases, and we are confident that today’s decision will bring wrongful[-]death litigation to its rightful place under the Mississippi Rules of Civil Procedure.

Id. at 178 (¶¶ 70, 76-78).

¶ 50. In this case, the accident that claimed Oner’s life occurred on March 26, 2014. Rochelle filed her lawsuit very quickly—on April 3, 2014. In May 2014, Charles filed probate proceedings in South Carolina, and he was appointed the personal representative of Oner’s estate in August. On September 8, 2014, Charles entered his appearance in the lawsuit filed by Rochelle, and in February, he filed his own complaint. As noted above, Charles also expressly “join[ed] in the Complaint filed ... by Rochelle.” Rochelle’s complaint specifically sought damages under the Mississippi wrongful-death statute. Certainly, as early as May 2014, Charles was represented by lawyers in South Carolina, and could have known the difference in the distribution laws of South Carolina as opposed to Mississippi. This case was settled on April 15, 2015, and the following day, Charles’s lawyer told Rochelle’s lawyer that they would object to the distribution under Mississippi law and ask the court to apply South Carolina law.

¶ 51. This litigation lasted just over one year. Rochelle claims that Charles knew of the choice-of-law issue for at least a year and remained silent. Rochelle’s lawyer argues that the there was no mention of the choice-of-law issue during the mediation or prior to settlement. Charles’s lawyer claims that they did not know that Rochelle’s lawyer did not know of their allegation that South Carolina law would apply to the distribution of the settlement proceeds.

¶ 52. In addition, there is general law that provides that the “[e]arly determination of which state law governs a case is essential for judicial economy, efficiency and fairness to the parties.” Bailey, 28 A.3d at 860. The Bailey court also explained that “a choice-of-law issue should be raised as soon as prudently possible to avoid prejudice, surprise, waste and delay.” Id. at 864. See also Kucel, 813 F.2d at 74 (holding that defendants have “an obligation to call the applicability of another state’s law to the court’s attention in time to be properly considered”).

¶ 53. We rely primarily on Long. There, the supreme court made it clear that any dispute over the “determination of wrongful[-]death beneficiaries” should be decided early in the litigation. Long, 897 So.2d at 175-76 (¶ 67). Specifically, the court held:

Section 11-7-13 provides that wrongful[-]death litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. [Mississippi Code Annotated section] 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a decedent; that is, those who inherit in the absence of a will. Although our statutes mandate no specific procedure for the identification of wrongful[-]death beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings.

Id. (emphasis added, footnote omitted).

¶ 54. Because we find the “duty to identify the beneficiaries” includes a duty to identify the percentages that the beneficiaries would be entitled to take, we find that Charles was required by Long to bring the choice-of-law issue to trial court’s attention “early in the proceedings,” and he did not. Therefore, we find that the circuit judge was correct to find that Charles waived this issue. As a result, we affirm the trial court’s decision to apply Mississippi law to the percentage of distribution by each wrongful-death beneficiary.

¶ 55. We remand this case for the circuit judge to approve the distributions to the beneficiaries.

III. The trial court erred as a matter of law when it allowed a party to add documents to the record in violation of Mississippi Rule of Appellate Procedure 10(f).

¶ 56. Based on the Court’s ruling above, we find no reason to address this issue and decline to do so.

¶ 57. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT IS AFFIRMED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

ISHEE, FAIR, WILSON AND GREENLEE, JJ„ CONCUR. BARNES AND CARLTON, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., AND WESTBROOKS, J., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. LEE; C.J., NOT PARTICIPATING. ■

      . We agree with Charles that the circuit judge incorrectly cited Owens. Charles is correct that he “clearly place[d]" the choice-of-law issue squarely before the trial court in his cross-motion for a declaratory judgment, which was filed after the settlement agreement was reached. Charles did not first assert this issue on appeal.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Rothell CHAMBLISS a/k/a Rothel Chambliss, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00316-COA
    Court of Appeals of Mississippi.
    05/23/2017
    Rehearing Denied August 29, 2017
    Certiorari Denied December 14, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR CÓOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY .GENERAL BY: JOSEPH SCOTT HEMLEBEN
    DISTRICT ATTORNEY: ALEXANDER C. MARTIN
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ l. A Jefferson County jury convicted Rothell Chambliss of burglary of a dwelling, and the trial’court subsequently sentenced Chambliss,- as a habitual offender, to serve twénty-five years-in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for parole or probation. See Miss. Code Ann. § 99-19-81 (Rev. 2015). '

¶ 2. - Chambliss now appeals his conviction and sentence, asserting the following assignments of error: (1) the trial court erred when it denied his motion for a mistrial during voir dire, and (2) the trial court violated the United States Constitution’s Confrontation Clause when it admitted testimony regarding “known” fingerprints of Chambliss. Finding no error, we affirm.

FACTS

¶ 3. On August 29, -2015, Michael Dubois discovered that two campers on his property in Fayette, Mississippi, had -been burglarized. Dubois observed that the campers had been broken into and cameras on the property had been stolen. Dubois purchased new cameras and installed them along the property.

¶ 4. When Dubois returned to the property on September 2, 2015, he discovered that someone had again broken into the campers. Dubois testified it appeared that someone entered the campers through the storage compartments. Dubois observed that televisions and other items had been removed from the campers. Dubois watched the footage from the new cameras he installed, and he pulled photographs of an individual walking around the property. Dubois then reported the burglary to the authorities.

¶ 5. Jefferson County Sheriffs Deputy James Bailey investigated the case and reviewed the photographs taken from the camera on Dubois’s property. Deputy Bailey testified that, while reviewing the footage, he observed a black male, whom he recognized as Chambliss, on Dubois’s property. Deputy Bailey then processed the scene and collected fingerprints, which he subsequently sent to the Mississippi Crime Laboratory for analysis.

If 6. Mike Hood, the forensic section chief of latent prints at the Mississippi State Crime Laboratory, tested the latent prints collected from the crime scene and concluded they matched the “known prints” of Chambliss. Hood testified that he obtained Chambliss’s known prints from the Mississippi criminal history system database.

¶7. On October 6, 2015, a Jefferson County grand jury indicted Chambliss on one count of burglary of a dwelling in violation of Mississippi Code Annotated section 97-17-23 (Rev. 2014). Chambliss’s indictment reflected his status as a habitual offender pursuant to section 99-19-81.

¶ 8. At a jury trial held on February 10, 2016, the jury heard testimony from Du-bois, Deputy Bailey, Hood, and Chambliss. After the State rested its case-in-chief, Chambliss moved for a directed verdict, which the trial court denied. The trial court sentenced Chambliss as a habitual offender to twenty-five years in MDOC’s custody. Chambliss filed an unsuccessful motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV). Aggrieved, Chambliss appeals.

DISCUSSION

I. Motion for Mistrial

¶ 9. Chambliss argues the trial court erroneously denied his motion for a mistrial during voir dire after a prospective juror made an improper statement regarding Chambliss’s alleged criminal history. Chambliss submits that, because the jury that convicted him was tainted by the highly prejudicial comments of the prospective juror, the trial court erred in not granting Chambliss’s motion for a mistrial.

¶ 10. “[T]he decision to declare a mistrial is within the sound discretion of the trial judge.” Whitaker v. State, 114 So.3d 725, 730 (¶ 14) (Miss. Ct. App. 2012) (citing Evans v. State, 725 So. 2d 613, 649 (¶ 114) (Miss. 1997)); Tate v. State, 20 So.3d 623, 629 (¶ 13) (Miss. 2009). “To obtain reversal based on a trial court’s refusal to ... grant a mistrial, the defendant must show prejudice.” Beasley v. State, 74 So.3d 357, 363 (¶ 28) (Miss. Ct. App. 2010).

¶ 11. During the trial court’s voir dire, the transcript reflects that the following exchange occurred between the prospective juror and the trial judge:

Prospective Juror: I didn’t know who the defendant was when I came up here, but—
The Court: Yes, sir. I didn’t either.
Prospective Juror: Well, I’m not sure if it’s been a year and a half, two years ago I had to be here in court to testify against him for breaking in—

¶ 12. The transcript shows that Cham-bliss’s counsel immediately interrupted the comment and requested an opportunity to approach the bench. However, the trial court continued its voir dire as follows:

The Court: You don’t need to say anything else. You don’t think you could be fair?
Prospective Juror: Well, I don’t think it would be—I couldn’t say I wouldn’t lean one way or the other.
The Court: Well, we need jurors that will be right on the 50[-]yard line and won’t lean one way or the other. Thank you, sir.

¶ 13. At the end of the trial court’s voir dire, defense counsel moved for a mistrial, arguing that the prospective juror “said that he had been up here a year and a half ago when he had to testify against [Cham-bliss]. Everybody laughed.” The trial court denied the defense’s motion and stated:

[T]here was no explanation, there was no charge. I think that in a situation ... where there was any indication, I would consider your request more harmful, but in this situation, the court finds that there was nothing said that would create or cause any prejudice to the [Defendant. There was no mention of what kind of case it was, civil, criminal[,] or anything else, what the result was or anything else. Of course, the record will indicate what was said, but the juror merely indicated that he was up here testifying in a case that Mr. Chambliss was involved in, and that’s all that was said and ... I don’t believe that there had been any prejudice that has been created that would [adjhere against the [Djefendant, so I’ll overrule your motion.

¶ 14. Defense counsel reiterated that the prospective juror specifically mentioned that Chambliss had previously been accused of a similar property crime, stating, “Your Honor, I don’t mean to argue with you, but I wanted to make it clear that what I heard was that he did specifically say for breaking in my place or whatever, but it’s the same kind of case that he specifically said that.” Defense counsel asked that the trial court listen to what the recorder picked up regarding the statement. The trial court refused and denied the motion for a mistrial. The record reflects that the prospective juror was not chosen to sit on Chambliss’s jury.

¶ 15. We recognize that “the trial court is in the best position to determine if an alleged improper comment had a prejudicial effect; therefore, absent an abuse of that discretion, the trial court’s ruling will stand.” Tate, 20 So.3d at 642 (¶ 48) (citing Jones v. State, 962 So.2d 1263, 1275 (¶ 45) (Miss. 2007)). This Court has held:

While a comment by a single prospective juror during voir dire may taint the entire panel, where there is no evidence of such a taint, the court may correctly refuse to disqualify the entire panel from service if the jury affirms that it can render a verdict based solely on the evidence brought before the court.

Whitaker, 114 So.3d at 730 (¶ 15). The Mississippi Supreme Court has explained that, when a trial judge conducts follow-up questions and the jury panel shows no indiction of bias, prejudice, or inability to be fair in discharging its duty, “it is proper for a trial judge to refuse to disqualify the entire jury panel.” Id. at (¶ 14) (citing Benson v. State, 551 So.2d 188, 191 (Miss. 1989)). We recognize the “presumption in Mississippi that juries have followed the instructions of the trial judge.” Id. at 729 (¶ 14).

¶ 16. In the case before us, the trial transcript shows that, at various points after the prospective juror made his comment, all the prospective jurors, including those ultimately seated on Chambliss’s jury, were asked by the trial judge whether they could be impartial and base their decisions solely on the evidence. The trial judge instructed the jury as follows: ‘You should base your decision ... strictly on what you hear from the witness stand and the evidence that’s introduced into a trial. Is there any one of you who could not do that? Anyone?” The trial judge further explained: “Mr. Chambliss is presumed innocent .... You’ll be required as jurors to maintain that presumption unless and until the State proves his guilt beyond a reasonable doubt. Anyone of you who could not do that? Anyone?”

¶ 17.' The trial judge also asked the jurors if the “nature of the charges in this case ... makes you question in your mind whether or not you could be completely fair and impartial or anything about your past experiences with the. law or as the victim of a crime which would cause you to lean- one way or the other in this case? Anyone?”

¶ 18. Finally, before permitting the parties to proceed with voir dire, the trial court instructed the jury as follows:

Both the [Sjtate of Mississippi and the [Djefendant have a right to expect that the jurors who hear this case-will be completely fair and impartial .to both sides, will base them verdict solely on the basis of the evidence adduced in open .court and the law as instructed by the .court. ...
Ladies and gentlemen,. I would ask you to examine your own hearts and minds, and if you 'could not be that juror, please indicate by raising your hand at this time. Anyone?

¶ 19. After our review of the record, we find no abuse of discretion in the trial court’s' finding of no indication that the jurors in this case were “biased, prejudiced, or would be less than fair in discharging [their] duty” due to the comment made by the prospective juror. Whitaker, 114 So.3d at 730 (¶ 14). Furthermore, the trial court instructed the jurors of their duty to be fair and impartial. Accordingly, we find no abuse of discretion by the trial judge in denying Chambliss’s motion for a mistrial and allowing the jury to continue to trial. See Tate, 20 So.3d at 629 (¶ 13). This issue lacks merit.

II. Testimony

¶20. Chambliss next argues that the trial court violated the Confrontation Clause of the United States Constitution by admitting Hood’s testimony about a “known” fingerprint of. Chambliss that matched the fingerprints collected at the scene of the burglary. Chambliss submits that the “known” fingerprint is part of a criminal history database that exists for the purpose of identifying criminals and thus is being used in a future criminal prosecution.' As a result, Chambliss argues that the "statement about his “known print” constituted testimonial hearsay, which violated his constitutional right to confront the witnesses against him. -

¶ 21. This Court reviews the admission or exclusion of evidence at trial for an abuse of discretion. Jenkins v. State, 102 So.3d 1063, 1065 (¶ 7) (Miss. 2012). “Constitutional issues are reviewed de novo.” Id.

¶ 22. In Conners v. State, 92 So.3d 676, 682-83. (¶ 16) (Miss. 2012), the supreme court explained:

The Sixth Amendment to the United States. Constitution states that[,] in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. The Confrontation Clause confers a right to confront those who bear testimony against the defendant. Thus, the testimonial statements of a witness who does not testify at trial are inadmissible unless the witness is unavailable and the defendant had a prior opportunity for cross-examination.

(Internal quotation marks .and citations omitted).

¶ 23. The record reflects Hood’s testimony that he assigned Chambliss’s case to himself, so he personally pulled Cham-bliss’s prints from the Mississippi criminal history system database and compared them to the fingerprints collected from the crime scene. The trial transcript further reveals that Chambliss failed to object to Hood’s testimony at trial, nor did Cham-bliss-raise this issue in his motion for a new trial or JNOV. As a result, Cham-bliss’s argument is procedurally barred from appellate review. See Anthony v. State, 23 So.3d 611, 620 (¶ 41) (Miss. Ct. App. 2009) (“Since [the defendant] made no Sixth-Amendment objection to the admission of the [evidence] at trial or in her posttrial motion, her arguments on [the Confrontation Clause] issue are procedurally barred.”).

¶24. However, under the plain-error doctrine, this Court may examine “obvious errors” affecting a defendant’s “fundamental, substantive right” that the defendant failed to properly raise at trial. Conners, 92 So.3d at 682 (¶ 16). The supreme court “has held that a Confrontation-Clause violation is a violation of a fundamental, substantive right.” Id. (internal quotation marks omitted). Accordingly, we must examine the record to determine whether a violation of the Confrontation Clause. “occurred that resulted in a' manifest miscarriage of justice.” Id. (citing Corbin v. State, 74 So.3d 333, 337 (¶ 11) (Miss. 2011)).

¶ 25. In Jenkins, 102 So.3d at 1066 (¶ 9), the supreme court discussed the United States Supreme Court’s holding that “the Sixth Amendment Confrontation Clause bars the admission of ‘testimonial statements’ made by a witness who does not appear at.trial, unless the witness is unavailable ’ and the defendant had a prior opportunity to cross-examine him.” (citing Crawford v. Washington, 541 U.S. 36, 53-54, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). The Jenkins court explained that, “[t]hough there is no exhaustive list defining testimonial statements, a document created solely for an evidentiary purpose ranks - as testimonial.” Id. (internal quotation marks omitted) (citing Bullcoming v. New Mexico, 564 U.S. 647, 664, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011)); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The Jenkins court further clarified that “[fjorensic laboratory reports created specifically to serve as evidence against the accused at trial are among the ‘coré class of testimonial statements’ governed'by the Confrontation Clause.” Jenkins, 102 So.3d at 1066 (¶ 9) (citing Melendez-Diaz, 557 U.S. at 309, 129 S.Ct. 2527).

¶ 26. The' State argues, however, that the United States Supreme Court’s concerns -regarding' confrontation in Melendez-Diaz and Bullcoming are not present in the case before us. During Hood’s testimony, the State introduced into evidence a fingerprint card containing Chambliss’s fingerprints. Hood testified that he matched fingerprints collected from the crime scene to Chambliss s known prmts obtained from a law-enforcement database. The law-enforcement database contained fingerprints from Chambliss taken as part of a routine booking during the course of a previous arrest. As a result, the State submits that the fingerprints on the card were not collected in anticipation of prosecution. The State further argues that the fingerprint card alone does not serve a prosecu-torial purpose absent additional analysis and testimony.

¶ 27. The supreme court has held that, “[cjlearly, fingerprints are not testimonial evidence.” Newton v. State, 321 So.2d 298, 300 (Miss. 1975). See also Maryland v. King, 569 U.S. 435, 133 S.Ct. 1958, 1976, 186 L.Ed.2d 1 (2013) (describing fingerprinting as a natural part of the “routine administrative step incident to arrest”). The supreme court also clarified that the Confrontation Clause does not apply to nontestimonial hearsay. Rubenstein v. State, 941 So.2d 735, 754 (¶ 47) (Miss. 2006). As a result, we find that Chambliss’s right to confront witnesses against him was not violated by Hood’s testimony about Chambliss’s “known” fingerprints.

¶ 28.. After our review, we find no abuse of discretion by the trial court in admitting Hood’s testimony, nor can we say that Hood’s testimony regarding Chambliss’s “known” fingerprints resulted in a “manifest miscarriage of justice.” Conners, 92 So.3d at 682 (¶ 15). This issue therefore lacks merit.

¶ 29. THE JUDGMENT OF THE JEFFERSON COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The State cites tó United States v. Williams, 720 F.3d 674, 698 (8th Cir. 2013), where the Eighth Circuit Court of Appeals observed:
      We do not believe that the Supreme Court’s concerns regarding confrontation in Melendez-Diaz and Bullcoming are present here with respect to the fingerprint cards. Unlike-the evidence in those cases, the fingerprint cards were created as part of a routine booking procedure and not in anticipation of litigation .... By contrast, the excluded evidence deemed to be "testimonial” in both Bullcoming and Melendez-Diaz ■ ■ ■ went straight to the heart of the offenses for which the petitioners in those cases were respectively charged. See Bullcoming, 131 S.Ct. at 2709 (petitioner charged with driving while intoxicated and the evidence at issue was a forensic report regarding the defendant’s blood-alcohol level); Melendez-Diaz, 557 U.S. at 308, 129 S.Ct. 2527, ... (petitioner charged with distributing and trafficking cocaine and the evidence at issue was "certificates of analysis” regarding the composition of seized substance).


author: GREENLEE, J.,

text:
    Bobby CAMPBELL a/k/a Bobby Joe Campbell a/k/a Bobby Ray Campbell a/k/a Bobby Ray Dotson a/k/a Willie Dotson a/k/a Robert Jackue Campbell, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01123-COA
    Court of Appeals of Mississippi.
    06/06/2017
    Rehearing Denied October 17, 2017
    Certiorari Denied January 18, 2018

      ATTORNEY FOR APPELLANT: BOBBY CAMPBELL, (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This is an appeal from the Jones County Circuit Court’s denial of Bobby Campbell’s motion for post-conviction relief (PCR) as time-barre4 by the three-year statute of limitations, with no applicable exception. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶2. Campbell pleaded guilty to aggravated assault on April 21, 2011. He was sentenced to twelve years in the custody of the Mississippi Department of Corrections, with four years suspended and eight years to serve, followed by four years of post-release supervision. On June 28, 2016, he moved for PCR alleging that (1) his indictment was defective, (2) his indictment was improperly amended, (3) he did not get the sentence his counsel said he might get, and (4) he was sentenced for his prior convictions on the same day. On July 19, 2016, the circuit court denied Campbell’s motion for PCR as time-barred by the three-year statute of limitations, with no exception applicable. On July 26, 2016, Campbell appealed the circuit court’s denial of his motion to this Court.

DISCUSSION

¶3. A circuit court’s denial of a PCR motion is reviewed for abuse of discretion and will not be disturbed unless the circuit court’s decision was clearly erroneous. Crosby v. State, 16 So.3d 74, 77 (¶ 5) (Miss. Ct. App. 2009).

¶ 4. On appeal, Campbell reasserts that (1) his indictment was defective, (2) his indictment was improperly amended, (3) he did not get the sentence his counsel said he might get, and (4) he was sentenced for his prior convictions on ■ the same day.

Time-Bar

¶ 5. The Uniform Post-Conviction Collateral Relief Act contains a three-year statute of limitations, running from the entry of the judgment of conviction in the event of a guilty plea. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Campbell’s motion was filed well after the three years had run. It is therefore time-barred. The statute Expresses several exceptions to the time-bar. See id. at § 99-39-5(2)(a)-(b). When a time-barred PCR motion is filed, “the burden falls on the movant to show he has met a statutory exception.” White v. State, 59 So.3d 633, 635 (¶ 8) (Miss. Ct. App. 2011) (citing Adams v. State, 954 So.2d 1051, 1053 (¶ 7) (Miss. Ct. App. 2007)).

¶ 6. Under section 99-39-5(2), there are six exceptions to the time-bar: (1) an intervening decision from the Mississippi or United States Supreme Court that would adversely affect the outcome of the conviction or sentence; (2) newly discovered evidence not reasonably discoverable at trial that would likely have caused a different result; (3) biological evidence demonstrating that the movant would likely either not have been convicted or received a lesser sentence; (4) the movant’s sentence is expired; (5) his parole, probation, or conditional release has been unlawfully revoked; or (6) the motion is in a capital case and is filed no more than one year after conviction.

¶ 7. Courts have also found errors affecting fundamental rights to be excepted from the time-bar. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss. 2010). “But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.” White, 59 So.3d at 636 (¶ 11) (citing Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss. Ct. App. 2010)). Campbell’s motion for PCR was filed over five years after his conviction. His motion is therefore barred by the three-year statute of limitations. Campbell has failed to provide any legitimate reason that the time-bar should not apply, nor do we find any. Thus, we find his motion is time-barred. Thus, we find this issue is without merit.

CONCLUSION

¶ 8. We affirm the circuit court’s denial of Campbell’s PCR motion.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY, SECOND JUDICIAL DISTRICT, DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON AND WESTBROOKS, JJ., CONCUR.

      . Campbell attempts to couch his third and fourth assertions aS a claim of an illegal sentence, as he did with the circuit court,


author: LEE, C.J.,

text:
    John H. LOFTON a/k/a John Henry Lofton a/k/a John Lofton, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01809-COA
    Court of Appeals of Mississippi.
    06/06/2017
    Rehearing Denied December 12, 2017
    ATTORNEY FOR APPELLANT: JOHN H. LOFTON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. John H. Lofton appeals the Oktib-beha County' Circuit Court’s summary dismissal of his motion for postconviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 13, 1993, Lofton was indicted by an Oktibbeha County grand jury on one count of ággravated assault, one count of kidnapping, and three counts of capital rape. On October 22, 1993, Lofton pleaded guilty to the aggravated-assault charge, the kidnapping charge, and one of the capital-rape charges. The two remaining capital-rape charges were retired in exchange for his guilty plea. The trial court accepted and entered Lofton’s guilty plea, and then sentenced Lofton to twenty years for aggravated assault,, twenty years for kidnapping, and life imprisonment for capital rape. The assault sentence was ordered to run consecutively to the life, sentence, and the kidnapping sentence was ordered to run concurrently with the other sentences.

¶ 3. In October 2015, Lofton filed a PCR motion with the circuit, court. Lofton’s PCR motion claimed that the trial court did not have the authority to sentence him to life imprisonment for the rape conviction under Mississippi Code Annotated section 97-3-65(2) (Rev. 1998). The circuit court dismissed Lofton’s PCR motion without an evidentiary hearing, finding that Lofton was properly sentenced under section 97-3-65(1)—the subsection under which Lofton pleaded guilty. Lofton now appeals.

STANDARD OF REVIEW

¶4. “This Court employs the clearly-erroneous standard of review when reviewing a trial court’s summary dismissal of a PCR motion.” Carter v. State, 204 So.3d 791, 793 (¶ 5) (Miss. Ct. App. 2016) (quoting Jones v. State, 174 So.3d 902, 905 (¶ 8) (Miss. Ct. App. 2015)). “When questions of law are raised, however, this Court employs a de novo standard of review.” Id. “If it plainly appears from the face of the motion, any annexed exhibits, and the pri- or proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified.” Id. (quoting Miss. Code Ann. § 99-39-11(2) (Rev. 2015)).

DISCUSSION

¶ 5. Lofton argues that his sentence of life imprisonment for capital rape is illegal. For support, he cites Mississippi Code Annotated section 97-3-65(2) (Rev. 1993), which at the time of his conviction read, in pertinent part, that a person convicted under subsection (2)

shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.

Thus, Lofton argues that the statute did not permit the court on its own, without a jury, to impose a life sentence. However, section 97-3-65(2) does not apply to Lof-ton.

¶ 6. Our review of the record shows that Lofton was indicted and pleaded guilty to a violation of section 97-3-65(1), as the circuit court noted in its order denying Lofton’s PCR motion. At the time of Lof-ton’s guilty plea and sentencing, section 97-3-65(1) read as follows: “Every person eighteen (18) years of age or older who shall be convicted of rape by carnally and unlawfully knowing a child under the age of fourteen (14) years, upon conviction, shall be sentenced to death or imprisonment for life in the State Penitentiary .... ” (Emphasis added). As such, the trial court did not err when it imposed a life sentence for the capital-rape' conviction. Furthermore, a plain reading of the statute shows that the trial court was without authority to impose a sentence less than life imprisonment. Accordingly, Lofton’s illegal-sentence argument fails, and the circuit court did not err when it denied Lof-ton’s PCR motion. This issue is without merit.

¶ 7. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.


author: BARNES, J., WESTBROOKS, J.,

text:
    Kenny WALTON a/k/a “K Dog”, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-00168-COA
    Court of Appeals of Mississippi.
    6/20/2017
    Rehearing Denied October 3, 2017
    Certiorari Denied January 11, 2018
    TIM C. HOLLEMAN, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES, ISHEE AND GREENLEE, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. Kenny Walton appeals the denial of his motion for post-conviction relief (PCR), which was on remand from this Court. See Walton v. State, 165 So.3d 516 (Miss. Ct. App. 2015) (Cause no. 2013-CA-01708-COA). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. As the underlying facts of this case are detailed in our prior opinion, we will address only those facts pertinent to the issue raised in this appeal. Walton, Michael McGee, Corderral McKnight, and Jasmond Matthews were indicted on September 17, 2008, for conspiracy, armed robbery, aggravated assault, arson, and kidnapping. The Bolivar County Circuit Court appointed Walton a public defender, Rosharwin Williams.

¶ 3. In October 2008, the State’s investigator interviewed McKnight and Matthews, who had already entered guilty pleas. A condition of their plea agreements was that they would testify against their codefendants. On November 14, 2008, the State filed a one-page Supplemental State’s Report' of Discovery Disclosure, stating: “With written summary pending and to be submitted to our office, the State submits that its verbal knowledge of this date is that neither the co-defendant Matthews[, nor] McKnight[,] inculpate[s] Michael MeGee or Kenny Walton and [they] instead name other accomplices[.]” A certificate of service indicated the report was mailed and faxed to Walton’s attorney, Williams, and McGee’s attorney, William Martin. However, Williams denies' receiving this discovery. Walton entered a guilty plea to all counts on November 21, 2008, with sentencing to be deferred pending Walton’s “truthful and complete testimony against the remaining defendant, Michael McGee.”

¶4. On May 22, 2009, Williams filed a motion to withdraw Walton’s guilty pleas, which the trial court denied. McGee’s trial was held May 27-28, 2009. McGee was acquitted of all charges, as the witnesses, including Walton, denied McGee or Walton was criminally involved. Williams filed a renewed motion to withdraw the guilty plea on July 8, 2009, stating that Walton had shared information with him that “would possibly absolve him from any criminal responsibility,” and witnesses who testified at McGee’s trial supported Walton’s “version of facts.” After a hearing, the court denied the motion and sentenced Walton to fifty-one years to serve, as he failed to testify for the State as agreed.

¶ 5. Walton filed a motion for reconsideration of his sentence; The trial court held that it was “without authority or jurisdiction to reconsider [Walton’s] sentence” and, additionally, there was “no new evidence warranting a reconsideration of sentence” presented at the hearing. The trial court further ruled that the motion to reconsider was actually a PCR motion, which the court denied.

¶ 6. Walton filed a PCR motion on June 12, 2012, and the court dismissed the motion as a successive writ. Walton appealed, and on May 19, 2015, this Court remanded the case for an evidentiary hearing oh Walton’s claim of ineffective assistance of counsel. Specifically, we “reverse[d] and remand[ed] to the trial court to make findings of fact on whether Williams learned of Matthews’s and McKnight’s October 2008 statements [to the investigator,] whether [Williams] reviewed these with Walton pri- or to entering his guilty plea, and the effect any non-disclosure had on Walton’s plea.” Walton, 165 So.3d at 528 (¶ 44).

¶7. At an evidentiary hearing held on August 31, 2015, Williams testified that he did not receive the supplemental discovery from the State, which is consistent with his prior testimony. He also claimed he did not know Matthews and McKnight had testified at McGee’s trial that two other individuals, not Walton and McGee, had participated in the ■ crimes. However, Williams did aver that, prior to Walton’s guilty plea, he “had been in contact” with Matthews and his attorney, and Matthews “indicated that [Walton] was not involved” in the crimes. Williams said he shared that information with Walton prior to the entry of his guilty plea, and Walton entered his plea in light of that information. Based on this testimony by Williams, the circuit court found that Walton'was not denied effective assistance of counsel in connection with his guilty plea and denied Walton’s PCR motion.

¶ 8. On appeal, Walton argues that his PCR motion should have been granted, his guilty pleas set aside, and the case remanded “for a full trial on the merits.”

STANDARD OP REVIEW

¶ 9. This Court remanded for an eviden-tiary, hearing on whether Williams’s representation of Walton constituted ineffective assistance of counsel. . For Walton to prevail on his ineffective-;assistance-of-counsel claim, he must prove that Williams’s performance was . deficient, and Walton suffered prejudice as a result of the deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While there is a presumption “that counsel’s representation falls within the range of reasonable professional assistance,” the defendant may overcome this presumption upon a showing “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Thinnes v. State, 196 So.3d 204, 210 (¶ 23) (Miss. Ct. App. 2016) (quoting Sylvester v. State, 113 So.3d 618, 624 (¶ 22) (Miss. Ct. App. 2013)). We will affirm a trial court’s decision after an evidentiary hearing unless the court’s findings are “clearly erroneous.” Chase v. State, 171 So.3d 463, 479 (¶ 51) (Miss. 2015) (citation omitted). Deference is given “to the trial court as the sole authority for determining credibility of the witnesses.” Id. “[Questions of law are reviewed de novo.” Id.

DISCUSSION

¶ 10. Walton claims the ' circuit court’s finding is “clearly erroneous” because Williams’s testimony at the eviden-tiary hearing contradicted his prior “actions and representations.” At the August '5, 2009 hearing on the motion to reconsider Walton’s sentence, Williams stated: “In particular, the State has not address[ed] the issue of the .exculpatory statements that were made by their witnesses," Matthews and McKnight, as relates to Mr. Walton.... There was' no information shared with counsel that those witnesses that they pled and interviewed would exculpate this particular defendant at trial.” The State objected to that representation, claiming that the “exculpatory nature [of the] testimony of Jasmond Matthews and Corrderal McKnight was disclosed.”

¶ 11. At the August 31, 2015 evidentiary hearing, Williams acknowledged that he had discussed with Matthews’s counsel “what his client would possibly testify to, and [he] even met with [Matthews] at one point,” prior to Walton’s entering his guilty plea. Williams testified: “Í spoke with Mr. Matthews, and Mr. Matthews simply told me that [Walton] was not involved. But that was ... opposite to what my client told me when we "had our communications.” He further provided:

Well, I did interview Mr. Matthews; and Mr. Matthews told me that my client was not involved .... But then, again, when I spoke' with my client, he provided me a totally different statement. So I’m left, at that point, with two versions of facts coming from the two different angles; and my client telling me one thing. And my client at that point, decided that it was in his best interests to plead; so that’s what he did.

While Williams admitted that he saw the “statement” from the State’s investigator, he insisted the statement did not provide any facts exculpating Walton. The statement said that McKnight’s comments regarding the incident seemed “rehearsed or coached,” and Matthews’s “demeanor” was “comical and misleading.” It also noted that neither defendant would make eye contact with the investigator, and McKnight became “nervous or scared” when asked if he had been threatened. Nothing in the statement indicated other persons were involved.

¶ 12. In regard to the other named associates, Johnson and Alexander, Williams told the judge that he did not recall any disclosure prior to the entry of Walton’s guilty plea that two other men were involved. Williams testified: “I never knew those names, no. And they never shared those names with me in any way.” Thus, while Williams was made aware the other two defendants would not inculpate Walton, he did not know McKnight and Matthews would implicate Johnson and Alexander. McKnight’s and Matthews’s testimonies did not reveal this information until McGee’s trial, which was several months after Walton entered his guilty plea.

¶ 13. We stated in our prior opinion: “In the context of a guilty plea, Walton must establish that, but for his lawyer’s failure to advise him of the exculpatory statements of Matthews and McKnight, he would have elected to go to trial and the outcome would have been different.” Walton, 165 So.3d at 525 (¶ 35). Williams testified that he discussed with Walton Matthews’s comments regarding Walton’s lack of involvement in the incident, testifying:

[Walton] made his own decision, based on the discovery, to enter a plea.... But the basis as to why he pled was on the attorney/client communications and in light of what was in the discovery, particularly the phone that he had[] and his statements; and his statements were very incriminating.

When asked by the circuit judge at his guilty plea hearing whether he told his attorney, Williams, the “truth about the facts of this case,” Walton replied, “Yes, sir.” He also said he had not been threatened to enter his guilty plea.

¶ 14. Walton contends that Williams “should not [have been] permitted to ‘impeach’ or contradict his ow^i previous representations.” However, “[t]he purpose of an evidentiary hearing is for the court to receive evidence in order to make findings of fact.” Rowland v. Britt, 867 So.2d 260, 262 (¶ 9) (Miss. Ct. App. 2003) (quoting Lyle v. State, 756 So.2d 1, 2 (¶ 7) (Miss. Ct. App. 1999)). Furthermore, Williams never acknowledged receipt of the State’s supplemental report, and maintains that he never knew about the other two alleged accomplices prior to Walton’s guilty plea. As the trial judge determined in his opinion, Williams “did not the receive the State’s discovery through proper channels,” and the three motions filed by Williams were “because of evidence he had received from his client after the entry of his guilty plea.” (Emphasis added). We find the circuit court’s findings were not clearly erroneous.

¶ 15. Accordingly, we affirm the court’s denial of Walton’s PCR motion.

¶ 16.THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY, SECOND JUDICIAL DISTRICT, DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.

WESTBROOKS, J.,

DISSENTING:

¶ 17. I am of the opinion that the trial court erred in denying Walton’s request for postconviction relief, and that Walton’s conviction represents a miscarriage of justice. Therefore, I respectfully dissent.

¶ 18. At the evidentiary hearing, I find that Walton showed that his attorney’s insufficiency had a reasonable probability of affecting the outcome of the case. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial [or plea] cannot be relied on as having produced a just result.” Jordan v. State, 918 So.2d 636, 647 (¶ 19) (Miss. 2005) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “A defendant must demonstrate that his attorney’s actions were deficient and that the deficiency prejudiced the defense of the case.” Id.

¶ 19. Initially, the public defender, Williams, denied receiving the “supplemental State’s report of discovery,” which stated that neither codefendants Matthews nor McKnight inculpated Walton in their statements. In fact, they named other accomplices in their statements to investigators. Williams asserted that once he learned of the statements, he filed a motion to withdraw Walton’s guilty plea. However, Williams acknowledged tjiat he did not further investigate after speaking with Matthews and his attorney, despite Matthews telling him that Walton was not involved in the crimes. However, at the evidentiary hearing, Williams claimed that he informed Walton of certain information obtained from Matthews and Matthews’s attorney. Williams asserted that Walton still decided to enter a plea of guilty to all four counts. However, I find this assertion highly questionable and doubtful.

¶ 20. Furthermore, Williams had an obligation to further investigate the exculpatory information once he learned of its existence. “[Trial] counsel has, at a minimum, ‘a duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case.’” Quitman Cty. v. State, 910 So.2d 1032, 1038 (¶ 14) (Miss. 2005) (quoting State v. Tokman, 564 So.2d 1339, 1342 (Miss. 1990)). Williams testified that if Matthews’s and McKnight’s statements had been disclosed to him, he would not have advised Walton to enter a guilty plea. The record does not reflect that Williams spoke to McKnight or his attorney regarding a statement that could have possibly exculpated Walton.

¶ 21. After review of the record, it appears that the communication between Walton and Williams was murky at best. I am of the opinion that Walton would have likely gone to trial to let a jury of his peers determine his guilt or innocence. He would not have entered a guilty plea without his attorney’s insistence, and he would not have been sentenced to fifty-one years in the custody of the MDOC.

¶ 22. While this Court cannot determine the outcome of a jury trial, we can deduce that Walton would not have pleaded guilty to all four counts had he known of the existence of exculpatory evidence. As the majority states: “In the context of a guilty plea, Walton musj: first establish [a reasonable probability] that, but for his lawyer’s failure to advise him of the exculpatory statements of Matthews and MeKnight, he would have elected to go to trial and the outcome would have been different.” Maj. Op. at (¶ 13). The Mississippi Supreme Court has held “that a reasonable probar bility arises when the ineffectiveness is of such sufficient moment that the integrity of the proceeding or our confidence in the outcome has been shaken.” Hannah v. State, 943 So.2d 20, 24 (¶ 7) (Miss. 2006) (citing Leatherwood v. State, 539 So.2d 1378, 1385 (Miss. 1989)).

¶ 23. I would find that the trial court’s decision was clearly erroneous, and I would reverse the dismissal of Walton’s PCR motion.

IRVING, P. J., JOINS THIS OPINION.

      . Williams is presently an assistant district attorney for the Eleventh Circuit Court District.

      . The other persons later named by Matthews and McKnight were Desmond Johnson and Nookie Alexander.

      .- The information consisted of notes/letters to Walton from McGee and others.

      . Williams noted that he did not attend McGee's trial, nor did he read the transcript.

      . In our prior opinion, we noted that it was "unclear” when this report was furnished to Williams. See Walton, 165 So.3d at 526 (¶ 37).

      . Walton possessed the victim’s cell phone when police arrested him. He claimed he got the phone from McKnight.


text:
    George Locke GALBRAITH v. REGIONS BANK
    1131178
    Supreme Court of Alabama.
    09-02-2016
   Reh. denied.


text:
    Gregory W. COTTER, M.D. v. Kenneth ELLINGWOOD, M.D., et al.
    1140368
    Supreme Court of Alabama.
    07-08-2016
   Affirmed.


text:
    Benjamin Franklin COX et al. v. UTILITIES BOARD OF TUSKEGEE et al.
    1140375
    Supreme Court of Alabama.
    08-12-2016
   Reh. denied.


text:
    NATIONWIDE GENERAL INSURANCE CO. v. Edward H. LAGRAVE
    1140559
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    Donald Curtis CASEY et al. v. Senator Del MARSH
    1140676
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    HRC, LLC v. PHOENIX WEST II, LLC
    1140702
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    George Patrick STACEY v. Anthony Lee PEED
    1140803
    Supreme Court of Alabama.
    07-08-2016
   Affirmed.


text:
    Scott E. MCGLON and ARC Manufacturing, LLC v. Gerald T. MONROE, Jr., and Online Commerce Group, LLC
    1140851
    Supreme Court of Alabama.
    08-12-2016
   Reh. denied.


text:
    Ruth Mary Higgins BAKER v. ESTATE OF Ruth G. HIGGINS, deceased
    1141050
    Supreme Court of Alabama.
    08-26-2016
   Affirmed.


text:
    CAG MLG, LLC v. Bart SMELLEY and Smelley Family Investments, LLC
    1141131
    Supreme Court of Alabama.
    08-26-2016
   Reh. denied.


text:
    Guy E. BLAUDEAU, M.D. v. Kandise MCGINTY and David Chavis, as personal representatives of the estate of Alexander Jarmaine Chavis, a minor, deceased
    1141138
    Supreme Court of Alabama.
    09-23-2016
   Reh. denied.


text:
    Wood BYRD and Bacadam, Inc. v. Darian BENTLEY, personal representative of the estate of Mark Jonathan Bentley
    1141297
    Supreme Court of Alabama.
    07-08-2016
   Reh. denied.


text:
    EX PARTE SOUTHEASTERN STUD & COMPONENTS, INC., and Kennon W. Whaley, Sr.
    1141346
    Supreme Court of Alabama.
    08-12-2016
   Mand. pet. denied.


text:
    COLYER-LLOYD DEVELOPMENT, INC. v. DELANO HOLDINGS, LLC
    1141348
    Supreme Court of Alabama.
    08-26-2016
   Reh. denied.


text:
    Willie C. BATCH et al. v. Andre L. SCONIERS
    1141411
    Supreme Court of Alabama.
    08-12-2016
   Reh. denied.


text:
    BIRMINGHAM BEVERAGE CO. v. SWEETWATER BREWING CO.
    1150080
    Supreme Court of Alabama.
    09-23-2016
   Affirmed.


text:
    SWEETWATER BREWING CO. v. BIRMINGHAM BEVERAGE CO.
    1150106
    Supreme Court of Alabama.
    09-23-2016
   Affirmed.


text:
    Heidi M. CHRISTIE and Michael L. Rosenberg v. REGIONS BANK d/b/a Regions Mortgage
    1150111
    Supreme Court of Alabama.
    08-12-2016
   Affirmed.


text:
    Clarence Blake WEST v. Larry COLLINS, individually and d/b/a Collins & Associates
    1150132
    Supreme Court of Alabama.
    07-08-2016
   Affirmed.


text:
    Richard M. KEMMER, Jr., as the administrator of the estate of Phyllis Knight, deceased v. CVS CAREMARK CORP. et al.
    1150138
    Supreme Court of Alabama.
    08-12-2016
   Affirmed.


text:
    EX PARTE ALFA MUTUAL INSURANCE CO.
    1150192
    Supreme Court of Alabama.
    08-26-2016
   Mand. pet. denied.


text:
    Tiffany C. BOYKIN v. ESTATE OF Mary Jane HOWARD and Alfa Mutual Insurance Co.
    1150209
    Supreme Court of Alabama.
    07-15-2016
   Affirmed.


text:
    Dennis Brannon ARNETT v. AUBURN TIMBERLANDS, INC.
    1150226
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    EX PARTE SHOE SHOW, INC., et al.
    1150228
    Supreme Court of Alabama.
    08-26-2016
   Mand. pet. denied.


text:
    EX PARTE FCCI INSURANCE CO. and National Trust Insurance Co.
    1150230
    Supreme Court of Alabama.
    07-08-2016
   Reh. denied.


text:
    SSC SELMA OPERATING CO., LLC, d/b/a Warren Manor Health & Rehabilitation Center, Bernard Turk; and Sava Senior Care Administrative Services, LLC v. Marvin Bertram GORDON, administrator of the estate of Jimmy Lee Gordon, deceased
    1150254
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    Eric ARRINGTON v. STATE of Alabama
    1150257
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    SOMPO JAPAN INSURANCE CO. v. FIVES ST CORP.
    1150260
    Supreme Court of Alabama.
    09-30-2016
   Affirmed.


text:
    OUTOKUMPU STAINLESS USA, LLC v. FIVES ST CORP.
    1150262
    Supreme Court of Alabama.
    09-30-2016
   Affirmed.


text:
    ALABAMA SHORELINE, LLC v. Joanne D. HAZELRIGS
    1150264
    Supreme Court of Alabama.
    09-16-2016
   Reh. denied.


text:
    Michael Kevin ABERNATHY v. ALABAMA STATE BAR
    1150267
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    EX PARTE Hubert I. MATTHEWS and Hubert I. Matthews Family Partnership, L.P.
    1150271 (2140343)
    Supreme Court of Alabama.
    08-26-2016
   Writ of cert, quashed.


text:
    Ashley STEWART, M.D., and Surgical Clinic of Anniston, P.A. v. Mary MITCHELL, as administratrix of the estate of Kenneth Mitchell, deceased
    1150287
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    Cynthia MINGO v. CITY OF MOBILE
    1150303
    Supreme Court of Alabama.
    07-08-2016
   Affirmed.


text:
    Holly TRICE v. Angel MCALPINE
    1150304
    Supreme Court of Alabama.
    07-08-2016
   Affirmed.


text:
    Kesha STEWART v. Vonda GILLIAM et al.
    1150311
    Supreme Court of Alabama.
    08-12-2016
   Affirmed.


text:
    EX PARTE NORFOLK SOUTHERN RAILWAY CO.
    1150323
    Supreme Court of Alabama.
    08-26-2016
   Mand. pet. denied.


text:
    LAL JIMAHARJ, LLC v. Takelia RUDOLPH, as administrator of the estate of Annie Taylor, deceased
    1150383
    Supreme Court of Alabama.
    09-02-2016
   Affirmed.


text:
    EX PARTE Michael Louis CRAFT
    1150424 (CR-14-1222)
    Supreme Court of Alabama.
    08-12-2016
   Cert. denied.


text:
    Reggie BARLOW v. ALABAMA STATE UNIVERSITY et al.
    1150429
    Supreme Court of Alabama.
    08-26-2016
   Affirmed.


text:
    EX PARTE William Dean SANDERS III
    1150459 (CR-14-0866)
    Supreme Court of Alabama.
    07-08-2016
   Cert, denied.


text:
    Timothy WILDER v. Harry W. PARRISH et al.
    1150482
    Supreme Court of Alabama.
    07-08-2016
   Affirmed.


text:
    HOLLINGSWORTH CAPITAL PARTNERS-ALABAMA, LLC v. Janet BUSKEY, in her capacity as Revenue Commissioner of Montgomery County, and Alabama Department of Revenue
    1150492
    Supreme Court of Alabama.
    08-26-2016
   Affirmed.


text:
    MISTY HARBOR RESORT, INC., et al. v. Hugh C. HARRIS et al.
    1150496
    Supreme Court of Alabama.
    07-08-2016
   Affirmed.


text:
    PETROAMERICA, LLC v. OSKER CONVININ, LLC, d/b/a Brighton Grocery, et al.
    1150548
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    EX PARTE Ronny BROWN et al.
    1150578 & 1150579
    Supreme Court of Alabama.
    09-16-2016
   Mand. pets, denied.


text:
    EX PARTE Lisa CORVO and Thomas Bonds
    1150581
    Supreme Court of Alabama.
    08-12-2016
   Mand. pet. denied.


text:
    EX PARTE Maurice WHITE
    1150592 (CR-14-0676)
    Supreme Court of Alabama.
    07-08-2016
   Cert. denied.


text:
    Patricia BARNETT v. John W. PRICE, Jr., Mary Quinn Reid, and Annie Laura Bohannon
    1150595
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    DOLGENCORP, LLC v. Everett WALKER
    1150625
    Supreme Court of Alabama.
    08-19-2016
   Affirmed.


text:
    Chadwick C. WRIGHT v. L.B. WHATLEY
    1150653
    Supreme Court of Alabama.
    08-12-2016
   Affirmed.


text:
    EX PARTE Christopher LEAGUE
    1150658 (2140838)
    Supreme Court of Alabama.
    07/08/2016
   Cert, denied.


text:
    Keith PERLINGIERO et al. v. The LAW OFFICE OF J. MARK FISHER, PA, et al.
    1150670
    Supreme Court of Alabama.
    07-08-2016
   Affirmed.


text:
    Kay F. GUNN v. The COCHRAN FIRM et al.
    1150686
    Supreme Court of Alabama.
    07-08-2016
   Affirmed.


text:
    Sue MIKUL v. Howard MOORE and Charles Lloyd
    1150689
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    EX PARTE R.C.M.
    1150700 (CR-14-1665)
    Supreme Court of Alabama.
    07-08-2016
   Cert, denied.


text:
    EX PARTE Jayant RATTI et al.
    1150705
    Supreme Court of Alabama.
    09-02-2016
   Mand. pet. denied.


text:
    James STRADFORD v. CITY OF BIRMINGHAM
    1150719
    Supreme Court of Alabama.
    09-16-2016
   Affirmed.


text:
    EX PARTE B.V.B.
    1150747 (CR-14-1412)
    Supreme Court of Alabama.
    07-08-2016
   Cert. denied.


text:
    EX PARTE Jessie Junior ALLEN
    1150749 (CR-14-0716)
    Supreme Court of Alabama.
    08-12-2016
   Cert, denied.


text:
    EX PARTE Roderick Joseph TATE
    1150766 (CR-14-1603)
    Supreme Court of Alabama.
    08-12-2016
   Cert, denied.


text:
    EX PARTE Shawn MCCLAIN
    1150791 (CR-14-1522)
    Supreme Court of Alabama.
    08-12-2016
   Cert, denied.


text:
    EX PARTE Damien Fredrick GREENE
    1150794 (CR-14-0464)
    Supreme Court of Alabama.
    08-12-2016
   Cert, denied.


text:
    EX PARTE William Jody BYRD
    1150799 (CR-13-0559)
    Supreme Court of Alabama.
    07-08-2016
   Cert, denied.


text:
    EX PARTE Stalandus Z. SLAUGHTER
    1150806 (CR-14-0572)
    Supreme Court of Alabama.
    07-08-2016
   Cert, denied.


text:
    EX PARTE Daoud BOONE
    1150814 (CR-14-1110)
    Supreme Court of Alabama.
    07-08-2016
   Cert, denied.


text:
    EX PARTE John E. FEY
    1150866 (CR-15-0119)
    Supreme Court of Alabama.
    07-08-2016
   Cert, denied.


text:
    EX PARTE George BLACKMON
    1150875 (CR-14-1010)
    Supreme Court of Alabama.
    07-08-2016
   Cert. denied.