author: COLEMAN, JUSTICE, FOR THE COURT: WALLER, CHIEF JUSTICE, DISSENTING: KING, JUSTICE, DISSENTING:

text:
    Joey Montrell CHANDLER a/k/a Joey M. Chandler a/k/a Joey Chandler v. STATE of Mississippi
    NO. 2015-KA-01636-SCT
    Supreme Court of Mississippi.
    March 8, 2018 Rehearing Denied May 17, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH BRIGGS, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT
    EN BANC.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. In 2005, Joey Montrell Chandler was convicted for the murder of his cousin Emmitt Chandler and sentenced to life in prison under Mississippi Code Section 97-3-21 (2005). The Court affirmed his conviction and sentence on appeal. Chandler v. State , 946 So.2d 355, 356, 366 (¶¶ 1, 54) (Miss. 2006). In 2015, Chandler received a new sentencing hearing for his murder conviction in light of the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Following the hearing, the circuit court sentenced Chandler to life in prison. Chandler appeals, requesting that he be resentenced because the trial court failed to analyze all the factors identified in Miller and adopted in our subsequent decision in Parker v. State , 119 So.3d 987 (Miss. 2013).

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2014, Chandler filed a petition with the Court claiming that he was entitled to resentencing in light of the United States Supreme Court's decision in Miller . We granted Chandler permission to file a motion to set aside his sentence in light of Miller . On January 8, 2015, the trial court held a hearing on the matter in which it allowed Chandler to present evidence in support of his motion.

¶ 3. On October 9, 2015, the trial court entered a detailed, six-page order. The trial court recounted what the evidence showed at Chandler's trial. Chandler had been selling because his girlfriend was pregnant and he needed to earn money to help pay for expenses. Chandler observed his cousin Emmitt exiting Chandler's vehicle with Chandler's marijuana. The next day, Chandler armed himself and confronted Emmitt. Chandler shot Emmitt two times with a pistol and the wounds were lethal. Chandler disposed of the murder weapon by throwing it in a pond.

¶ 4. At the time of the murder, Chandler was seventeen years, six months, and thirteen days old. Upon resentencing, the trial court found that Chandler's actions on the day of the murder showed premeditation, planning, and an attempt to dispose of the murder weapon. Noting that the victim was not armed, the trial court described the murder as "heinous" under the facts of the case.

¶ 5. The trial court's order included a discussion of Miller and our subsequent cases applying Miller , including Parker and Jones v. State , 122 So.3d 698 (Miss. 2013). The trial court's order verified that it had reviewed the transcripts of the case, the court file, and Chandler's presentence investigation report. After carefully reviewing the evidence in the case and the matters presented in the resentencing hearing, the trial court found that Chandler should be sentenced to life in prison for the murder of his cousin Emmitt.

STANDARD OF REVIEW

¶ 6. The Court has yet to review a trial court's sentencing decision under Miller . Chandler argues that the Court should review the trial court's decision with the same "heightened scrutiny" that applies in death-penalty cases, because a sentence of life without parole is the harshest punishment that can be imposed on a juvenile offender. See Bennett v. State , 990 So.2d 155, 158 (Miss. 2008) ("The standard of review of convictions for capital murder and sentences of death is 'heightened scrutiny.' "). Accordingly, Chandler contends that all doubts as to the appropriateness of the trial court's decision must be resolved in his favor. In contrast, the State argues that the trial court's imposition of a criminal sentence is reviewed for an abuse of discretion. See Hampton v. State , 148 So.3d 992, 999 (Miss. 2014).

¶ 7. Heightened scrutiny is reserved for death-penalty cases due to the unique and irreversible nature of that punishment. The Court has no reasonable basis to raise its standard of review for a sentence in a noncapital case simply because it involves a juvenile offender. Accordingly, we hold that there are two applicable standards of review in a Miller case. First, whether the trial court applied the correct legal standard is a question of law subject to de novo review. Smothers v. State , 741 So.2d 205, 206 (Miss. 1999). If the trial court applied the proper legal standard, its sentencing decision is reviewed for an abuse of discretion. Hampton , 148 So.3d at 999.

DISCUSSION

¶ 8. Chandler argues that the trial court failed to address all of the sentencing considerations mandated by Miller and Parker . Thus, the issue on appeal is whether the trial court comported with the requirements of Miller and Parker when resentencing Chandler to life in prison for a murder which he had committed when he was seventeen years old. In short, we hold that the trial court comported by applying the correct legal standard because it afforded Chandler a hearing and sentenced Chandler after considering and taking into account each factor identified in Miller and adopted in Parker . Moreover, we cannot say that the trial court's decision to sentence Chandler to life was an abuse of discretion.

¶ 9. Miller and Parker require the trial court to "take into account" and "consider" the factors identified in Miller before sentencing. Miller , 567 U.S. at 480, 132 S.Ct. 2455 ; Parker , 119 So.3d at 995, 998 (¶¶ 19, 26). Contrary to Chandler's assertions, nothing in Miller or Parker requires trial courts to issue findings on each factor or limits trial courts to considerations strictly personal to the juvenile offender. As evidenced by the trial court's order, it took into account and considered every factor, comporting with Miller and Parker . The trial court recognized in its order that "before a life sentence may be imposed for a homicide, a sentencing hearing must be held and the [trial c]ourt must consider certain factors."

¶ 10. In Miller , the Supreme Court of the United States concluded that mandatory life sentences without parole for juvenile homicide offenders violate the Eighth Amendment's prohibition on cruel and unusual punishments. Miller , 567 U.S. at 469-70, 132 S.Ct. 2455. The Miller Court held "that a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile's special circumstances in light of the principles and purposes of juvenile sentencing." Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 725, 193 L.Ed.2d 599 (2016) (citing Miller , 567 U.S. 460, 132 S.Ct. 2455 ).

¶ 11. The Miller Court stopped short of establishing a specific procedure for lower courts to follow when sentencing juvenile homicide offenders; rather, the Miller Court observed several important features of youth that would be relevant to the sentencing decision. In Parker , we held that the factors identified by the Miller Court must be considered by the sentencing authority. Parker , 119 So.3d at 995-96 (¶ 19). We explained:

Miller does not prohibit sentences of life without parole for juvenile offenders. Rather, it "require[s] [the sentencing authority] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Miller , 132 S.Ct. at 2469.

Parker , 119 So.3d at 995 (¶ 19) (emphasis added).

¶ 12. Juvenile offender Lester Lavon Parker Jr. had been convicted and sentenced and had filed his notice of appeal before Miller was decided by the Supreme Court. Id. at 989, 996 (¶¶ 1, 20). We granted Parker's request to "remand for a sentencing hearing with the opportunity to present mitigating evidence." Id. at 998 (¶ 26). Accordingly, we vacated Parker's sentence and remanded for a "hearing where the trial court, as the sentencing authority, is required to consider the Miller factors before determining sentence." Id.

¶ 13. We held that "[a]fter consideration of all circumstances required by Miller , the trial court may sentence Parker , despite his age, to 'life imprisonment.' " Id. at 999 (¶ 28). "However, if the trial court should determine, after consideration of all circumstances set forth in Miller , that Parker should be eligible for parole, the court shall enter a sentence of 'life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(1)(h).' " Id. We affirmed Parker's conviction but vacated his sentence and "remand[ed] [the] case to the Circuit Court of Copiah County for a hearing to determine whether he should be sentenced to 'life imprisonment' or 'life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(1)(h).' " Id. at 1000 (¶ 29).

¶ 14. In Jones , we explained: " Miller explicitly prohibits states from imposing a mandatory sentence of life without parole on juveniles. Thus, Miller rendered our present sentencing scheme unconstitutional if, and only if, the sentencing authority fails to take into account characteristics and circumstances unique to juveniles." Jones , 122 So.3d at 702 (¶ 12). Recently, the Supreme Court wrote in regard to what Miller requires:

Miller requires that before sentencing a juvenile to life without parole, the sentencing judge take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. The [ Miller ] Court recognized that a sentencer might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified. But in light of children's diminished culpability and heightened capacity for change, Miller made clear that appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.

Montgomery , 136 S.Ct. at 733-34 (quotations and citations omitted) (emphasis added).

¶ 15. The Supreme Court also addressed what Miller does not require. See Montgomery , 136 S.Ct. at 735. The Montgomery Court confirmed that Miller does not require trial courts to make a finding of fact regarding a child's incorrigibility. Id. Moreover, after reviewing Miller and Montgomery , we discern that no rebuttable presumption exists in favor of parole eligibility for juvenile homicide offenders. Rather, Miller explicitly foreclosed imposition of a mandatory sentence of life without parole on juvenile offenders. Jones , 122 So.3d at 702.

¶ 16. Chandler places the trial court in error for failing to make any findings concerning Chandler's capacity for rehabilitation. Neither Miller nor Parker mandates that a trial court issue findings on each factor. Regardless, the trial court certainly "considered" and "took into account" rehabilitation. See Parker , 119 So.3d at 995 (¶ 19) (citing Miller 567 U.S. at 477-78, 132 S.Ct. 2455 ) ). The trial court exceeded the minimum requirements of Miller and Parker by specifically identifying every Miller factor in its order.

¶ 17. As to the rehabilitation factor, the trial court found: "The United States Supreme Court also talks about rehabilitation and the defendant's prospects for future rehabilitation. Th[e trial court] notes that the Executive Branch has the ability to pardon and commute sentences in this State should it deem such action warranted."

¶ 18. The trial court also considered several letters from various family members submitted on behalf of Chandler and other individuals urging the trial court for leniency because Chandler had been rehabilitated or was capable of rehabilitation. Chandler presented testimony at the sentencing hearing related to Chandler's rehabilitation or capability thereof. Nothing in the record indicates that the trial court did not take into account or consider such evidence. Indeed, the trial court's order ensured that it considered the entire court file, including the evidence submitted by Chandler in support of the possibility of rehabilitation.

¶ 19. Chandler argues that the trial court considered irrelevant information in resentencing Chandler. We do not read Miller or Parker as requiring the sentencing courts to limit their analysis to facts and circumstances strictly personal to the juvenile offender. While it is true that each juvenile offender must afforded an individualized sentencing hearing before imposing a life sentence, Parker , 119 So.3d at 996 (¶ 20), the sentencing court is to "take into account how children are different." Miller , 567 U.S. at 480, 132 S.Ct. 2455.

¶ 20. Miller and Parker do not prohibit the trial court from considering aspects of youth that it considers relevant for purposes of sentencing. The Miller Court wrote that "[m]andatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences." The trial court's considerations of Chandler's chronological age and its hallmark features by examples of youth of the same age was not an abuse of discretion.

¶ 21. Here, after consideration of all the Miller factors, the trial court had the authority to sentence Chandler to life in prison or life in prison with eligibility for parole notwithstanding present provisions of the applicable parole statute. Thus, the trial court acted within its authority by sentencing Chandler to life in prison "under current Mississippi law."

CONCLUSION

¶ 22. The trial court did not automatically resentence Chandler to life in prison or perceive a legislative mandate that Chandler must be sentenced to life in prison without parole in violation of Miller . As required by Miller and our subsequent decision in Parker , the trial court held a hearing and, after considering all that was presented as well as the entire court file, sentenced Chandler to life in prison. The trial court took into account the characteristics and circumstances unique to juveniles. Jones , 122 So.3d at 702 (¶ 12). Although the trial court had the authority to sentence Chandler to life in prison with the possibility of parole, it chose to sentence Chandler to life in prison, which was also within its authority. Parker , 119 So.3d at 1000 (¶ 29). Because the trial court satisfied its obligation under Miller and Parker , and we cannot say the trial court abused its discretion in sentencing Chandler to life in prison, we affirm.

¶ 23. AFFIRMED.

RANDOLPH, P.J., MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., KING AND ISHEE, JJ. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

WALLER, CHIEF JUSTICE, DISSENTING:

¶ 24. Believing that the trial court failed to address the primary focus of Miller v. Alabama , Chandler's capacity for rehabilitation, and did not articulate that Chandler is among "the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility," I respectfully dissent. Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016).

¶ 25. Chandler's capacity for rehabilitation simply was not addressed by the trial court. The majority concludes that the trial court adequately considered the issue of rehabilitation when it reasoned that "the Executive Branch has the ability to pardon and commute sentences in this State should it deem such action warranted." (Maj. Op. at ¶ 17). However, this single statement is not responsive to the issue of rehabilitation. In Parker v. State , 119 So.3d 987, 992 (Miss. 2013), this Court specifically rejected the State's argument that the possibility of conditional release at age sixty-five offered juvenile defendants a meaningful opportunity for release in compliance with Miller . Similarly, the possibility of receiving a pardon or commuted sentence at some unspecified future date is in no way relevant to the consideration of Chandler's capacity for rehabilitation under Miller .

¶ 26. Consideration of the defendant's capacity for rehabilitation is a crucial step in the Miller analysis, because a life-without-parole sentence "reflects 'an irrevocable judgment about [an offender's] value and place in society,' at odds with a child's capacity for change." Miller , 567 U.S. at 473, 132 S.Ct. 2455 (quoting Graham v. Florida , 560 U.S. 48, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ). Indeed, the Miller Court stressed that the imposition of this sentence would be "uncommon" due to "children's diminished culpability and heightened capacity for change." Id. at 479, 132 S.Ct. 2455. More recently, in Montgomery , the Supreme Court underscored the importance of considering a juvenile's capacity for rehabilitation when it recognized that " Miller did bar life without parole ... for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." Montgomery , 136 S.Ct. at 734 (emphasis added). The Montgomery Court also found that the petitioner's evidence of "his evolution from a troubled, misguided youth to a model member of the prison community" was "relevant ... as an example of one kind of evidence that prisoners might use to demonstrate rehabilitation." Id. at 736. Here, the record included substantial evidence of Chandler's rehabilitation in prison following his conviction, including the testimony of Chandler's wife, father, and two family friends, as well as numerous letters submitted on his behalf by other family members, friends, and members of the community. Chandler presented evidence that he would have a job and a place to live waiting for him if he was released from prison. Likewise, Chandler showed that his decade of imprisonment was virtually without disciplinary blemish and that he excelled in job training programs offered at the prison. However, the trial court's sentencing order does not mention any of this evidence or its impact on the trial court's judgment.

¶ 27. Other courts have recognized that additional procedural safeguards are necessary to implement Miller effectively, especially in light of the Supreme Court's more recent decision in Montgomery . For example, in Veal v. State , 298 Ga. 691, 784 S.E.2d 403, 411 (2016), the Georgia Supreme Court held that trial courts in Miller cases must make a "distinct determination on the record that [the defendant] is irreparably corrupt or permanently incorrigible, as necessary to put him in the narrow class of juvenile murderers for whom [a life-without-parole] sentence is proportional under the Eighth Amendment as interpreted in Miller as refined by Montgomery ." (Emphasis added.) In so holding, the Veal Court found that "[t]he Montgomery majority's characterization of Miller ... undermines this Court's cases indicating that trial courts have significant discretion in deciding whether juvenile murderers should serve life sentences with or without the possibility of parole." Id. at 411. Similarly, in Commonwealth v. Batts , --- Pa. ----, 163 A.3d 410, 415 (2017), the Pennsylvania Supreme Court acknowledged that, in light of Montgomery 's clarification of Miller , "procedural safeguards are required to ensure that life-without-parole sentences are meted out only to 'the rarest juvenile offenders' whose crimes reflect 'permanent incorrigibility,' 'irreparable corruption' and irretrievable depravity[.]' " The Batts Court held that, "in the absence of the sentencing court reaching a conclusion, supported by competent evidence, that the defendant will forever be incorrigible, without any hope for rehabilitation, a life-without-parole sentence imposed on a juvenile is illegal, as it is beyond the court's power to impose." Id. at 435. And even before Montgomery was decided, the Supreme Court of Wyoming held that Miller required the trial court to "set forth specific findings supporting a distinction between 'the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.' " Sen v. State , 301 P.3d 106, 127 (Wyo. 2013).

¶ 28. The United States Supreme Court is careful to limit any procedural component of its substantive holdings "to avoid intruding more than necessary upon the States' sovereign administration of their criminal justice systems." Montgomery , 136 S.Ct. at 735. As such, it is true that Miller did not impose any specific factfinding requirement on lower courts. "However, "[t]hat Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole." Id. To be clear, Miller established that a life-without-parole sentence is an unconstitutionally disproportionate punishment for juvenile homicide offenders whose crimes reflect transient immaturity and can be imposed only on those children whose crimes reflect permanent incorrigibility. Id. The United States Supreme Court left to the States the task of ensuring that their sentencing procedures satisfy this holding, and to do this, our trial courts must apply the facts of each particular case to the substantive law.

¶ 29. In light of the Supreme Court's recent clarification of Miller in Montgomery , the trial court, at a minimum, should have addressed Chandler's capacity for rehabilitation and made an on-the-record finding that Chandler was one of the rare juvenile offenders whose crime reflected permanent incorrigibility before imposing what in effect is a life-without-parole sentence. Because I believe that the trial court's resentencing of Chandler was insufficient as a matter of law, I respectfully dissent.

KITCHENS, P.J., KING AND ISHEE, JJ., JOIN THIS OPINION.

KING, JUSTICE, DISSENTING:

¶ 30. Because imposing a life sentence without possibility of parole on a juvenile offender is the harshest punishment permitted by law and is akin to capital punishment, I respectfully dissent with the majority's holding that the appropriate standard of review in this case is abuse of discretion. In addition, I join Chief Justice Waller's opinion that the trial court failed to address the Miller v. Alabama factors.

¶ 31. The severe nature of capital-punishment cases necessitates a heightened-scrutiny standard of review. Batiste v. State , 184 So.3d 290, 292 (Miss. 2016). The United States Supreme Court also has recognized the severity of sentencing a juvenile offender to life in prison without the possibility of parole and has likened juvenile life-without-parole sentences to capital punishment:

[L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender's life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency-the remote possibility of which does not mitigate the harshness of the sentence. As one court observed in overturning a life without parole sentence for a juvenile defendant, this sentence "means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days."

Graham v. Florida , 560 U.S. 48, 69-70, 130 S.Ct. 2011, 2027, 176 L.Ed.2d 825 (2010), as modified (July 6, 2010) (internal citations omitted); see also Natalie Pifer, Is Life the Same As Death?: Implications of Graham v. Florida, Roper v. Simmons, and Atkins v. Virginia on Life Without Parole Sentences for Juvenile and Mentally Retarded Offenders , 43 Loy. L. Rev. 1495, 1531 (2010) ("Both execution and life without parole sentences permanently remove an individual from society by placing that person in a prison to await his or her death....").

¶ 32. Imposition of a life-without-parole sentence for a juvenile is the "harshest possible penalty" and is permissible only for "the rarest of juvenile offenders." Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 733-34, 193 L.Ed.2d 599 (2016), as revised (Jan. 27, 2016). In fact, the Supreme Court has held mandatory life sentences for juveniles to be unconstitutional. Miller v. Alabama , 567 U.S. 460, 471, 132 S.Ct. 2455, 2464, 183 L.Ed.2d 407 (2012). "Because juveniles have diminished culpability and greater prospects for reform, ... 'they are less deserving of the most severe punishments.' " Id. (quoting Graham , 560 U.S. at 60-61, 130 S.Ct. 2011. Even when juveniles commit terrible crimes, the "distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences." Id. at 472, 132 S.Ct. 2455.

¶ 33. Therefore, I believe that sentencing a juvenile who is " 'more vulnerable ... to negative influences and outside pressures,' including from their family and peers," to die in prison necessitates the same heightened standard as capital punishment. Graham , 560 U.S. at 68, 130 S.Ct. 2011 (quoting Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ); see also People v. Hyatt , 316 Mich.App. 368, 891 N.W.2d 549, 577 (2016) ("[T]he imposition of a life-without-parole sentence on a juvenile requires a heightened degree of scrutiny regarding whether a life-without-parole sentence is proportionate to a particular juvenile offender, and even under this deferential standard, an appellate court should view such a sentence as inherently suspect.") ). A heightened standard of review would serve only to ensure that solely the rarest and most deserving of juveniles would be sentenced to such a severe punishment.

¶ 34. Accordingly, because sentencing a juvenile to die in prison is the harshest possible penalty available by law and should be imposed only in the rarest cases, I dissent and would find that a trial court's decision to sentence a juvenile to life without parole should be reviewed with the same heightened scrutiny that applies in capital-punishment cases.

KITCHENS, P.J., JOINS THIS OPINION.

      Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

      Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).


source: Caselaw Access Project

author: KITCHENS, PRESIDING JUSTICE, FOR THE COURT: MAXWELL, JUSTICE, DISSENTING:

license: Public Domain

text:
    SINGING RIVER HEALTH SYSTEM, Jennifer Thomas-Taylor, M.D., Alva Britt, R.N., Benjamin W. Hudson M.D., and Emergency Room Group, Ltd. v. Teresa VERMILYEA and Julie Vermilyea Kasby as the Wrongful Death Beneficiaries of Randy Vermilyea and Julie Vermilyea Kasby, Individually
    NO. 2016-IA-01096-SCT
    Supreme Court of Mississippi.
    March 15, 2018 Rehearing Denied May 17, 2018
    ATTORNEYS FOR APPELLANTS: JOHN A. BANAHAN, JESSICA B. McNEEL, MICHAEL R. MOORE, Pascagoula, BRETT K. WILLIAMS, A. KELLY SESSOMS, III, Pascagoula, JAMES E. LAMBERT, III
    ATTORNEY FOR APPELLEES: MARC L. BOUTWELL, Lexington
    BEFORE KITCHENS, P.J., KING AND CHAMBERLIN, JJ.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Teresa Vermilyea and her daughter, Julie Vermilyea Kasby, filed suit against Singing River Health System, Jennifer Thomas-Taylor, M.D.; Alva Britt, R.N.; Benjamin W. Hudson, M.D.; and Emergency Room Group, Ltd., pursuant to the Mississippi Tort Claims Act for the wrongful death of Randy Vermilyea, the husband of Teresa Vermilyea and father of Julie Vermilyea Kasby (collectively, "Vermilyea"). Vermilyea alleged that Randy Vermilyea had been admitted to the Singing River Hospital following a suicide attempt and that the defendants had breached the standard of care by failing to assess his mental condition properly and prematurely discharging him, proximately causing his suicide minutes after his discharge. Julie Vermilyea Kasby, who had witnessed her father's suicide, asserted a claim for intentional infliction of emotional distress. The trial court denied the defendants' motions to dismiss for failure to state a claim. The appellants timely sought, and we granted, an interlocutory appeal. Finding that Vermilyea did state viable legal claims based upon Randy Vermilyea's death, we affirm and remand the case to the Circuit Court of Jackson County for further proceedings.

FACTS

¶ 2. Vermilyea filed a complaint on October 8, 2015, and an amended complaint on November 13, 2015. According to the amended complaint, on October 12, 2014, a severely depressed and suicidal Randy Vermilyea was standing on the ledge of the Pascagoula River Bridge, threatening to jump to his death. The amended complaint alleged that officers of the Jackson County Sheriff's Department arrived and spent ninety minutes pleading with him to leave the bridge. The amended complaint further alleged that, when Randy Vermilyea finally agreed to step off the bridge, the officers took him into custody and had him transported by ambulance to the emergency room at Singing River Hospital, where he was evaluated and released a few hours later. According to the allegations of the amended complaint, Randy Vermilyea was evaluated by defendants Jennifer Thomas-Taylor, M.D.; Benjamin W. Hudson, M.D.; and Alva Britt, R.N.; and then he was released from the hospital on his own, without shoes, and without hospital employees' having contacted any of his family members to inform them of his suicide attempt. The amended complaint alleged that, upon his discharge, Randy Vermilyea telephoned his daughter, Julie Vermilyea Kasby, for transportation, and the defendants never informed her of his suicide attempt. Finally, the amended complaint alleged that, within minutes of his discharge, Randy Vermilyea jumped to his death from a bridge in Moss Point on Highway 613.

¶ 3. In the amended complaint, Vermilyea alleged that the defendant medical providers had a duty to their patient, Randy Vermilyea, to exercise such reasonable care and attention as his mental and emotional condition required. Vermilyea claimed that the defendants had breached the standard of care by failing to conduct an adequate suicide assessment because, if one had been conducted, Randy Vermilyea would not have been discharged from the hospital prematurely. Vermilyea claimed that the failure to take adequate measures to assess Randy Vermilyea's mental state and keep him hospitalized proximately had caused his suicide immediately after his discharge. The amended complaint charged that the defendants had failed to assess and treat Randy Vermilyea's psychiatric condition, failed to hospitalize him, negligently and prematurely released him from the hospital, failed to take reasonable steps to prevent him from harming himself, failed to follow the standard of care applicable to a depressed and suicidal patient, and failed to inform Theresa Vermilyea or Julie Vermilyea Kasby of his attempted suicide and need for follow-up care. The amended complaint also alleged that the physicians and nurse had failed to recognize the definitive signs and symptoms of Randy Vermilyea's medical condition. Vermilyea claimed that Singing River Health System and Emergency Room Group, Ltd., were vicariously liable for the negligent acts and omissions of their employees. Additionally, Julie Vermilyea Kasby asserted a claim for intentional infliction of emotional distress based on her having witnessed her father's suicide after the defendants had omitted informing her that he had attempted suicide earlier in the day.

¶ 4. Singing River Health System and Jennifer Thomas-Taylor, M.D., answered and filed a motion to dismiss for failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. Dr. Benjamin Hudson and Emergency Room Group, Ltd., filed an answer and a joinder in Singing River's and Dr. Thomas-Taylor's motion to dismiss. Alva Britt, R.N., filed an answer and affirmative defenses in which she moved to dismiss the amended complaint for failure to state a claim. The defendants asserted that Vermilyea had failed to state a claim because, under Truddle v. Baptist Memorial Hospital-DeSoto, Inc. , 150 So.3d 692 (Miss. 2014), recovery against a third party for a suicide is permitted only upon proof that the decedent had acted under an irresistible impulse, proximately caused by the defendant's intentional conduct, that had rendered him unable to discern the nature or consequences of suicide. Because Vermilyea's amended complaint alleged negligence, not that the defendants had committed an intentional act that had proximately caused an irresistible impulse in Randy Vermilyea to commit suicide, the defendants argued that the amended complaint should be dismissed for failure to state a claim.

¶ 5. After a hearing, the trial court denied the motion to dismiss, finding the case to be distinguishable from Truddle . The defendants jointly filed a petition for an interlocutory appeal of the denial of the motion to dismiss. This Court granted the petition and stayed the proceedings in the trial court.

STANDARD OF REVIEW

¶ 6. A motion to dismiss for failure to state a claim under Rule 12(b)(6) raises an issue of law which we review de novo . City of Vicksburg v. Williams , 191 So.3d 1242, 1244 (Miss. 2016). A Rule 12(b)(6) motion tests the legal sufficiency of the complaint, and review is limited to the content of the complaint. State v. Bayer Corp. , 32 So.3d 496, 502 (Miss. 2010). "On a motion to dismiss, 'the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.' " Covington Cty. Bank v. Magee , 177 So.3d 826, 828 (Miss. 2015) (quoting City of Belmont v. Miss. State Tax Comm'n , 860 So.2d 289, 295 (Miss. 2003) ).

DISCUSSION

WHETHER THE TRIAL COURT ERRED BY DENYING THE MOTION TO DISMISS.

¶ 7. The defendants argue that, taking the allegations of the complaint as true, Truddle v. Baptist Memorial Hospital-DeSoto , 150 So.3d 692, is an absolute bar to Vermilyea's ability to recover for the suicide of Randy Vermilyea. Truddle involved Diane Truddle's claim against an internist and Baptist Hospital for the wrongful death of her son, Eric Carmichael, who had committed suicide after having been discharged from Baptist. Id. at 693. Upon his admission to Baptist, Carmichael was diagnosed with a gastric ulcer and other physical ailments and was prescribed the drug Reglan. Id. at 694. The night before his discharge, he became agitated and aggressive. Id. His mother told his treating internist that Carmichael did not want to be discharged because he had said that one of the medications had made him crazy, but the internist discharged him anyway. Id. At the follow-up appointment four days later, Carmichael's mother complained to the internist that Carmichael had said his medications were making him crazy. Nonetheless, the internist wrote him another prescription for Reglan. Id. Two days later, after telling a friend that he was tired of living, Carmichael committed suicide. Id. at 694-95. Truddle filed a wrongful death lawsuit against Baptist and the internist, arguing that Reglan had put Carmichael at a higher risk of suicide. Id. at 694. The trial court granted summary judgment to the defendants, and Truddle appealed. Id. at 693.

¶ 8. In determining that the trial court properly had granted summary judgment to the defendants, this Court discussed two lines of cases concerning a third party's liability for another's suicide. Id. at 695-98. The Court first reviewed the line of cases concerning the irresistible impulse doctrine in Mississippi, originally recognized in State for Use and Benefit of Richardson v. Edgeworth , 214 So.2d 579, 585 (Miss. 1968). Edgeworth was a suit for the wrongful death of Billy Joe Edgeworth, who had committed suicide after having suffered continuous, intense harassment by two justices of the peace who had used the criminal process of the courts wrongfully to collect civil debts. Edgeworth , 214 So.2d at 581, 584. The plaintiff's expert psychiatrist testified that, due to the defendants' actions, Edgeworth had been seized by an irresistible fear of prison that had manifested as an uncontrollable impulse to kill himself. Id. at 584.

¶ 9. The Court in Edgeworth found that a rebuttable presumption exists "that a person will not destroy himself by suicide." Id. at 585. Notably, the Court held that the rebuttable presumption does not exist when it is apparent the decedent was insane. Id. The Court also recognized cases applying the common law rule barring recovery for suicide because it is considered an "unforeseeable, intervening cause of death." Id. at 586. The Court recognized that those cases barred recovery because "suicide is a new and independent agency which breaks the causal connection between the wrongful act and the death." Id. But the Court declined to follow those cases, holding that "[w]here a defendant has committed an intentional tort, questions of whether the deceased was induced to take his life by an irresistible impulse and whether the intentional tort was a substantial factor in causing the suicide are ordinarily issues for the jury." Id. The Court reversed the directed verdict and remanded for a full trial because a jury could find that the defendants had committed intentional torts that contributed to a "delirium or insanity" which had caused a suicidal impulse in Billy Joe Edgeworth that robbed him of his reason and made it impossible for him to resist. Id. at 593, 588.

¶ 10. Truddle found that, after Edgeworth , to recover for a decedent's suicide, the plaintiff must plead and prove that "(1) the decedent was under an 'irresistible impulse' rendering him or her unable to discern the nature or consequences of suicide, and (2) the 'irresistible impulse' was proximately caused by the defendant's intentional conduct." Truddle , 150 So.3d at 696. Truddle cited the post- Edgeworth case of Shamburger v. Grand Casino of Miss., Inc./Biloxi , 84 F.Supp.2d 794, 798 (1998), in which the United States District Court for the Southern District of Mississippi recognized that, in Mississippi, the irresistible impulse rule provides an exception to the common law rule that suicide is a superseding event that precludes recovery for a wrongful act.

¶ 11. In Shamburger , Michelle Shamburger alleged that Grand Casino's attempt to collect her husband's $3,000 gambling debt had caused his suicide. Id. at 796. Grand Casino argued that suicide is an independent, intervening cause severing the causal nexus between any wrongful acts and the suicide. Id. at 798. The district court recognized that, in Edgeworth , Mississippi had fashioned an exception to this rule "for intentional conduct resulting in suicide where the tortious conduct produces 'a mental illness resulting in an irresistible impulse to commit suicide.' " Id. The district court found that the rule requires the decedent to have acted under a mental illness that rendered him unable to control his faculties or understand the nature and consequences of his actions. Id. at 799. Because the plaintiff had not produced expert testimony showing that the decedent's suicide had resulted from an irresistible impulse, nor had she shown that Grand Casino had acted tortiously, the district court granted summary judgment to Grand Casino. Id. at 799-800, 803.

¶ 12. Truddle also cited Collums v. Union Planters Bank, N.A. , 832 So.2d 572, 574 (Miss. Ct. App. 2002), in which a business owner committed suicide after the bank that had financed his business instigated foreclosure proceedings on the business's account. The Court of Appeals affirmed the grant of summary judgment to the defendant. Id. at 579. Applying Edgeworth , the Court of Appeals found that, because the evidence showed that Collums had planned his suicide with the objective that his family would receive benefits from his life insurance policies, the plaintiff had not shown he had acted under an irresistible impulse. Id. at 578. Further, the Court of Appeals found that the plaintiff had failed to show that the bank had committed an intentional act. Id.

¶ 13. Unlike Shamburger and Collums , Truddle's case did not involve an allegation that intentional conduct had caused the decedent's suicide. Rather, Truddle's complaint alleged that the decedent's suicide was the result of medical negligence. The Court recognized Truddle's argument that the common law rule barring recovery for suicide should not apply in a case alleging that medical negligence had caused the death. Truddle , 150 So.3d at 696-97. First, the Court set out the elements of medical negligence. Id. at 697. The plaintiff has the burden to prove "(1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such a duty by the defendant." Id. Then, the Court found that nothing in Mississippi case law abrogated the general rule that suicide is "an independent, intervening and superseding event" that breaks the causal nexus between the defendant's wrongful act and the death. Id. The Court declared, "this principle extends to medical-malpractice claims." Id. As support for this proposition, the Court cited a per curiam opinion in Haney v. River Oaks Hospital , 2006-CA-00219-SCT (Order, May 17, 2007), in which the Court affirmed the dismissal of a medical negligence suit against a physician alleging the patient had committed suicide after having been released from the hospital over her family's objections. Truddle , 150 So.3d at 697. Applying the law to the facts, the Court in Truddle concluded:

Truddle argues that the side effects of Reglan include depression and suicide, which should have been investigated. But, under Mississippi law, this failure alone is not sufficient to sustain a cause of action for a suicide. In such a case, the plaintiff must show that the defendant committed an intentional act that led to an irresistible impulse to commit suicide in order to prevail.

Id.

¶ 14. After discussing and applying the rule from Edgeworth , the Court in Truddle reviewed another line of cases holding that, under certain circumstances, a defendant can be held liable in a negligence action for another's suicide when the defendant assumed a duty of care to the decedent. Id. at 697-98. Of these, the lead case is Mississippi Department of Mental Health v. Hall , 936 So.2d 917 (Miss. 2006). Julie Renee Hall was a psychiatric patient at the East Mississippi State Hospital and suffered from several mental illnesses. Id. at 921. She fell from a third-floor window during an escape attempt and was seriously injured. Id. at 922. On appeal of a judgment in her favor, this Court described the issues as "whether East Mississippi had a duty to prevent Hall from harming herself by attempting to escape through the third-story window and whether that duty was breached." Id. This Court adopted the Texas standard of care defining the duty that a hospital owes a patient, specifically, "[a] hospital is under a duty to exercise reasonable care to safeguard the patient from any known or reasonably apprehensible danger from herself and to exercise such reasonable care for her safety as her mental and physical condition, if known, may require." Id. at 923 (quoting Mounts v. St. David's Pavilion , 957 S.W.2d 661, 663 (Tex. Ct. App. 1997) ).

¶ 15. The Court, noting that Hall had attempted suicide on prior occasions and that her civil commitment order recited that she was a danger to herself and others, found that East Mississippi had a duty to provide a safe environment for people like Hall who could not care for themselves due to their mental illnesses. Id. at 926. The Court found that Hall's injury had been foreseeable because hospital employees testified that it was common knowledge that patients would try to escape by climbing out of the hospital's windows. Id. at 924. Further, the Court concluded that the circuit court had not erred by finding that East Mississippi had breached the duty of care it owed Hall by failing to monitor her behavior and by keeping safety screens on the windows. Id. at 923-24.

¶ 16. The Court in Truddle also reviewed Carrington v. Methodist Medical Center , 740 So.2d 827, 828 (Miss. 1999), a lawsuit concerning the death of James Wiley Carrington, III, who had been committed involuntarily to the Mississippi State Hospital at Whitfield and had committed suicide at Methodist Medical Center while awaiting transfer to Whitfield. Id. at 828. His family filed a complaint alleging that Methodist had failed to comply with the applicable standard of care by failure to provide adequate surveillance, failure to assess Carrington's suicidal ideation adequately, failure to protect Carrington from self-harm, failure to treat him with antidepressant medication, and failure to assess his mental status. Id. Methodist asserted that it was immune from suit under Mississippi Code Section 41-21-105. Id. The Court held that Section 41-21-105 did immunize "good faith actions taken during the actual commitment process," but did not immunize the hospital against liability for the negligent care alleged in the complaint. Id. at 829. In its analysis, the Court found that "[p]ersons deemed incapable of making rational judgments, such that they must be committed, are not to be protected by a lesser standard than reasonable care under the circumstances." Id. at 829-30.

¶ 17. Another case reviewed in Truddle was Mississippi State Hospital v. Wood , 823 So.2d 598, 599 (Miss. Ct. App. 2002), involving a claim that the hospital's breach of the standard of care applicable to its inpatient psychiatric treatment of April Wood was a proximate contributing cause of her suicide. Wood was committed voluntarily to the hospital for drug dependency and depression. Id. at 600. After a rules infraction, she was placed in isolation and later informed that her isolation would be extended due to additional misconduct. Id. Shortly thereafter, she hanged herself. Id. The plaintiff presented expert testimony that the hospital's course of treatment had breached the standard of care because it had focused on Wood's substance abuse problems rather than her depression, despite the fact that Wood had displayed the signs and symptoms of severe depression and had a history of suicide attempts. Id. The expert also testified that the hospital had breached the standard of care by failing to place Wood under frequent observation. Id. The Court of Appeals affirmed the bench verdict for the plaintiff because nothing suggested the trial court manifestly had erred in accepting the expert's testimony that the hospital had breached the standard of care "in a manner that substantially increased the likelihood that April Wood would have both the opportunity and a compelling psychological impulse to do harm to herself." Id. at 601.

¶ 18. The Court in Truddle also reviewed Lyle v. Johnson , 240 Miss. 154, 159, 126 So.2d 266, 267 (1961), in which a patient committed to a private sanitarium by her family left the building and committed suicide by drowning in a lake. Her relatives sued the sanitarium's owner, alleging that the sanitarium had breached the standard of care by failing to provide adequate surveillance of the patient. Id. at 160, 126 So.2d at 268. The jury returned a verdict for the defendant. Id. at 159, 126 So.2d at 267. On appeal, the Court determined the duty owed by the sanitarium to the patient, holding that "[t]he degree of care exacted of a private institution toward their patients is, under the general law, 'such reasonable care and attention for their safety as their mental and physical condition, if known, may require.' " Id. at 161, 126 So.2d at 268. The Court found that the contract between the patient's family and the sanitarium had not required that the sanitarium render a level of care higher than ordinary care, and that the evidence before the jury conflicted on whether the sanitarium had breached the duty of ordinary care by not monitoring the patient more closely. Id. at 162, 126 So.2d at 269. Therefore, the Court affirmed the defense verdict. Id. at 164-65, 126 So.2d at 270.

¶ 19. Truddle found these cases recognizing liability for the negligent failure to prevent another's act of self-harm distinguishable because each case had involved a patient committing suicide or injuring himself or herself in the custody and control of the facility; and, in some of the cases, the decedent had communicated a desire to harm himself or herself. Id. The Court stressed that these cases were inapplicable because Carmichael never had communicated to hospital employees that he had a desire to harm himself or that he was considering suicide. Id. Further, Carmichael had been at home for several days and was not in the custody or control of the hospital at the time of his suicide. Id. at 698. Thus, the Court in Truddle held that "[t]he Mississippi cases Truddle cites for her argument that Mississippi recognizes a defendant's liability for another's suicide because he or she owed the defendant a duty of care are inapposite to the facts of this case." Id. The Court further found that, "[i]n those cases, the defendants had the ability to control the patient's conduct, whereas here, Baptist and [the internist] did not." Id.

¶ 20. The dissent argues that the duty of care identified in Truddle and Hall applies only in civil commitment cases and to inpatient psychiatric facilities. But Truddle never said that the duty of care from Hall applies only to inpatient psychiatric facilities or civil commitment cases, and not to hospitals such as Singing River that knowingly accept acutely suicidal patients into the hospital for evaluation and treatment. In fact, Hall adopted the Texas standard of care, which is applicable to hospitals and inpatient psychiatric facilities alike. See Harris Hospital v. Pope , 520 S.W.2d 813, 815 (Tex. Civ. App. 1975). There is no indication in Truddle , Hall , or elsewhere in our case law that would limit the applicability of the duty of care articulated in Hall to civil commitment cases and inpatient psychiatric facilities. Nor did Truddle distinguish Hall on the ground that it was not a suicide case. Instead, the key distinction in Truddle was that the Hall line of cases "involve[d] patients committing suicide or injuring themselves in the custody and control of the facility, and in some cases, the decedent or plaintiff already had expressed a desire to harm himself or herself." Truddle , 150 So.3d at 697-98. In this case, the defendants recognize that this was Truddle 's holding by arguing that they had no duty to Randy Vermilyea under Truddle because he was not in the hospital's custody at the time of his suicide, but had been discharged.

¶ 21. Since Truddle , the Court of Appeals decided Cahn v. Copac, Inc. , 198 So.3d 347, 367 (Miss. Ct. App. 2015), holding that a drug treatment facility could be held liable for an inpatient's fatal drug overdose. Ben Cahn was admitted to Copac for the purpose of treatment of his addiction to alcohol and prescription medications. Id. at 349. Cahn died of an overdose of Suboxone after he and another patient had purloined that drug from the office of a physician. Id. at 353. The trial court granted summary judgment on the plaintiffs' medical malpractice claim, and the Court of Appeals reversed. Id. at 348. The Court of Appeals found that, under Mississippi Department of Mental Health v. Hall , Mississippi State Hospital v. Wood , and Carrington v. Methodist Medical Center, Inc. , a hospital has a duty of care to its patients to exercise reasonable care to safeguard them from known or reasonably apprehensible dangers as the patient's mental and physical condition requires, a duty that includes guarding against a foreseeable risk of suicide by patients under the facility's care. Id. at 358. The Court of Appeals found that Copac had assumed such a duty to Cahn when it accepted responsibility for his medical care. Id. at 361. Further, the Court of Appeals found that it was foreseeable that a patient who was a drug addict would attempt to obtain and abuse controlled substances. Id. After finding that Cahn's "wrongful conduct" of stealing the controlled substance did not bar recovery, the Court of Appeals found genuine issues of material fact on whether Copac's negligent storage of Suboxone in the office, in violation of the controlled substances law, proximately had caused his death. Id. at 365.

¶ 22. We recognize that the parties cite Irby v. Madakasira , --- So.3d ----, ----, 2017 WL 1164219, *5 (Miss. Ct. App. March 28, 2017), in which the Court of Appeals found that a complaint alleging a psychiatrist's acts had created an irresistible impulse that led an outpatient to commit suicide, was time-barred under the one-year statute of limitations applicable to intentional torts. The Court of Appeals also held that, under Truddle , claims of medical negligence were not cognizable because the decedent was not under the custody or control of a physician or facility. Id. But, because a motion for rehearing has been filed in Irby , and the decision is subject to modification on rehearing, the case, at this point, has no precedential value. See M.R.A.P. 40(a).

¶ 23. Having discussed the pertinent case law, we turn to its application to this case. The defendants argue that, because Vermilyea's amended complaint is grounded in medical negligence and does not allege that Randy Vermilyea committed suicide either (1) while in the defendants' custody, or (2) under an irresistible impulse, proximately caused by the defendant's intentional conduct, that rendered him unable to discern the nature and consequences of suicide, the complaint fails to state a claim upon which relief may be granted. We reject this argument.

¶ 24. The plaintiffs agree with the contention of the defendants that they have not framed their claims under the irresistible impulse doctrine. Instead, Vermilyea argues that, as in Hall , Carrington , Wood , and Lyle , the amended complaint stated a claim for medical negligence. We agree. While Truddle held that the principle that suicide is an intervening, superseding cause that breaks the causal connection between the wrongful act and the death applies in medical negligence cases, the case also recognized precedent holding that liability exists if the plaintiff shows that the defendant owed the decedent a certain duty of care and breached that duty. Specifically, Truddle recognized that, if the decedent was under the custody and control of a facility, then the facility and treating medical care providers can be held liable for a breach of the duty of care that proximately caused or contributed to the decedent's suicide.

¶ 25. This case is analogous to the medical negligence cases cited in Truddle . As in those cases, the defendants were on notice that Randy Vermilyea was suicidal. They specifically accepted him for treatment for being suicidal and depressed. In fact, they accepted Randy Vermilyea for treatment after he had been transported to the hospital by sheriff's deputies who had thwarted his attempt to jump to his death from the Pascagoula River Bridge. Therefore, under Hall , they assumed a duty toward Randy Vermilyea to exercise reasonable care to safeguard him from the known danger he presented to himself, and to exercise such reasonable care for his safety as his mental condition required. Hall , 936 So.2d at 923. It was foreseeable that, if the hospital and its staff failed in their duty by releasing Randy Vermilyea without adequate treatment and care, he would resume his attempt to take his own life. Had the hospital and its staff properly performed an adequate suicide risk assessment, and thereby discovered Randy Vermilyea's true state of mind, they could have initiated civil commitment proceedings in the event that Randy Vermilyea refused treatment. See Miss. Code Ann. § 41-21-65(2) (Rev. 2013) ("any interested person" may initiate civil commitment proceedings); Bass v. Parkwood Hosp. , 180 F.3d 234, 239 (5th Cir. 1999) (hospital staff initiated civil commitment proceedings of apparently mentally ill patient). Taking the allegations of the amended complaint as true, the defendants negligently failed to perform an adequate suicide risk assessment and then negligently discharged Randy Vermilyea from the hospital on his own, without shoes, and without notifying any of his relatives of his suicide attempt.

¶ 26. The defendants argue that the fact that Randy Vermilyea's suicide occurred when he was outside the hospital's custody is fatal to his claim. They contend that Truddle stands for the proposition that the decedent must have been under the custody and control of the facility at the time of the death or there can be no liability for a suicide allegedly caused by medical negligence. The dissent takes this position as well. Considering the specific facts alleged in the amended complaint, we disagree. Just as in Lyle , in which the decedent escaped from the facility and then killed herself, Vermilyea's complaint is that the decedent was in the facility's custody and control, but the defendants negligently discharged him from the facility, proximately causing his immediate suicide. Here, suicide was the very thing that his hospitalization was supposed to prevent. The hospital and its staff, by undertaking treatment of the acutely suicidal Randy Vermilyea, assumed a duty of care toward him and it was foreseeable that a breach of that duty could result in his swift death from suicide. Negligently discharging a suicidal patient and leaving him to his own devices is not materially different from failing to provide a safe environment inside the facility.

¶ 27. This case is distinguishable from the medical negligence alleged in Truddle . Unlike Truddle , in which the suicide occurred days after the patient's discharge, Randy Vermilyea committed suicide "minutes" after he was turned out of the hospital. And, also unlike Truddle , because Randy Vermilyea was admitted to the hospital and treated for being suicidal, the facility and its staff were very much on notice of his mental condition. Finally, and also unlike Truddle , where the plaintiff's claim was that the physician should not have prescribed a drug that the decedent had complained was "making him crazy," here the plaintiffs' claim rests upon the negligent discharge of an acutely suicidal patient.

¶ 28. For these reasons, we hold that the plaintiffs did present a claim of medical negligence regarding the death of Randy Vermilyea. Regarding Julie Vermilyea Kasby's claim for intentional infliction of emotional distress, the defendants admit that the amended complaint actually described this claim as one of negligent, not intentional, infliction of emotional distress. But they argue that the claim fails because it is wholly dependent upon Vermilyea's claim of medical negligence, which they contend must be dismissed. As discussed above, the medical negligence claim was not subject to dismissal under Rule 12(b)(6). And, although the amended complaint mislabeled the claim as one of intentional infliction of emotional distress, the amended complaint indeed stated a claim of negligent infliction of emotional distress. See Sanderson Farms, Inc. v. McCullough , 212 So.3d 69, 74 (Miss. 2016) (holding that, when construing allegations of a complaint, "substance prevails over form").

CONCLUSION

¶ 29. Because the amended complaint stated negligence claims for the death of Randy Vermilyea, this Court affirms the trial court's denial of the motion to dismiss and remands this case to the Jackson County Circuit Court for further proceedings.

¶ 30. AFFIRMED AND REMANDED.

WALLER, C.J., KING, CHAMBERLIN AND ISHEE, JJ., CONCUR. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN AND BEAM, JJ. RANDOLPH, P.J., NOT PARTICIPATING.

MAXWELL, JUSTICE, DISSENTING:

¶ 31. There is no dispute that what happened to the Vermilyea family was tragic-that much is without question. But our duty as an appellate court, reviewing the dismissal of their related lawsuit, is to specifically answer whether it is actionable under our current law. And after review, I find that it simply is not. This court made very clear in Truddle that in Mississippi allegations of medical negligence are "not sufficient to sustain a cause of action for suicide." Truddle v. Baptist Mem'l Hospital-DeSoto, Inc. , 150 So.3d 692, 697 (Miss. 2014). Instead-as Chief Justice Waller explained when authoring the Truddle majority-"[i]n such a case, the plaintiff must show that the defendant committed an intentional act that led to an irresistible impulse to commit suicide in order to prevail"-something the Vermilyeas have not alleged occurred. Id.

¶ 32. Despite this, the majority holds Truddle does not apply. Instead, the majority imposes the same duty as in Mississippi Department of Mental Health v. Hall , 936 So.2d 917 (Miss. 2006). I find this approach problematic. The first problem with the majority's reliance on Hall is that Hall was not a suicide case. And the second and more important difference is that, unlike this case, Hall involved a patient civilly committed to a state psychiatric hospital. So the duty that hospital owed that patient was one "statutorily mandated" under Mississippi Code Section 41-21-102. Hall , 936 So.2d at 922. Furthermore, the standard adopted in Hall was aimed directly at defining the scope of those particular statutory duties. See id.

¶ 33. The same is true for Carrington v. Methodist Medical Center, Inc. , 740 So.2d 827 (Miss. 1999), and Mississippi State Hospital v. Wood , 823 So.2d 598 (Miss. Ct. App. 2002). In those cases, the patients did commit suicide. But, as in Hall , the patients' self-harming acts occurred while they were civilly committed . So the hospitals in each case owed the same statutory duties under Section 41-21-102.

¶ 34. On a similar note, the other cases the majority cites, Lyle and Copac , involved inpatient treatment by private facilities-private facilities that expressly assumed the duty to provide custodial care of clients they knew posed a danger to themselves. Lyle v. Johnson , 240 Miss. 154, 160-62, 126 So.2d 266, 268-69 (1961) (addressing the plaintiff's claim that a private sanitarium owed her mother heightened duties based on the admission contract); Cahn v. Copac, Inc. , 198 So.3d 347, 361 (Miss. Ct. App. 2015) (noting an inpatient drug-treatment facility, though "not obligated to admit or provide medical care and treatment," "assumed this obligation when it accepted payment and admitted him to the facility").

¶ 35. Truddle recognized custodial control as the key distinction. Just as in this case, the wrongful-death beneficiary in Truddle argued that Hall , Carrington , Wood , and Lyle all supported the hospital's potential liability for the alleged role medical negligence played in her son's suicide, which he committed after he was discharged. But this Court recognized her reliance on this line of cases was misplaced, because "the cases [she] cited involve[d] patients committing suicide or injuring themselves in the custody and control of the facility [.]" Truddle , 150 So.3d at 697-98 (emphasis added).

¶ 36. The majority here concedes that Randy was not in the custody and control of the hospital when he committed suicide. And yet it still insists Truddle does not apply. While the majority likens this case to Lyle , unlike the sanitarium patient in that case, there is no allegation Randy "escaped" from the hospital and committed suicide. Instead, the complaint alleges Randy committed suicide after being released following treatment.

¶ 37. I do sympathize with what the majority is doing. In the face of such tragedy, speculation easily arises about what might have been prevented had the hospital assumed custody and control of Randy and forcefully kept him in its care. But wishing the hospital had assumed custody and control, in light of what happened after his discharge, does not give rise to a duty on the hospital's behalf. Nor is it a sound legal reason to create a new duty to assume custody and control-which is essentially what the majority does.

¶ 38. Based on the facts as alleged in the complaint, Randy was not under the custody and control of the hospital when he committed suicide. So Truddle applies. And Truddle emphasizes that, even if the hospital was negligent in its treatment of Randy, "this failure alone is not sufficient to sustain a cause of action for a suicide." Truddle , 150 So.3d at 697.

¶ 39. Therefore, based on our current precedent, I dissent.

COLEMAN AND BEAM, JJ., JOIN THIS OPINION.

      The amended complaint added Emergency Room Group, Ltd., as a defendant.

      The Court recognized that, in the withdrawn opinion of Young v. Guild , 2008 WL 4740038 (Miss. Oct. 30, 2008), opinion withdrawn on grant of reh'g, substituted at 7 So.3d 251 (Miss. 2009), the Court had held that the irresistible impulse doctrine was inapplicable to a physician or medical provider from whom the decedent sought treatment. The Court noted that, because the opinion was withdrawn and the substituted opinion did not address the issue, "the status of the law in Mississippi remained unchanged." Truddle , 150 So.3d at 696.

      The defendants also rely on the order in Haney v. River Oaks Hospital , 2006-CA-00219-SCT (Order, May 17, 2007), the per curiam affirmance of the grant of summary judgment to a doctor and hospital in a case alleging medical negligence in which the patient committed suicide after being released from the hospital over the family's objection. Vermilyea argues that Haney is distinguishable because, as shown by the briefs in that case, the decedent had been hospitalized for an anxiety attack, not a suicide attempt. But because Haney was a per curiam opinion, the facts of the case and the Court's reasoning are unknown. See M.R.A.P. 35-A ( [t]he Court, with the concurrence of all justices participating ... may affirm the action of the trial court without rendering a formal opinion when an opinion would have no precedential value ...."). Therefore, we decline to construe Haney to bar recovery in this case.

      In fact, the sole issue in Carrington was whether the defendant hospital was immune under the civil-commitment act. Carrington , 740 So.2d at 828 ("We granted the petition for writ of certiorari to address a question of broad public importance in regard to the proper interpretation of Miss. Code Ann. § 41-21-105 (1993), which governs liability for actions taken during commitment of patients for mental treatment.").


author: ISHEE, JUSTICE, FOR THE COURT:

text:
    Willard Randall MARQUIS a/k/a Randy Marquis a/k/a Willard R. Marquis v. STATE of Mississippi
    NO. 2017-KA-00069-SCT
    Supreme Court of Mississippi.
    May 10, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFFGEORGE T. HOLMES
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY GERBER LISA L. BLOUNT
    BEFORE WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. Willard Marquis was convicted for the sexual battery of J.D., a female minor under the age of fourteen. In a pretrial competency hearing, J.D., who was seven at the time, was found to be competent to testify. And a day later, J.D. testified at trial through closed-circuit TV. During the trial, a recording of a forensic interview of J.D. was played before the jury. Also played before the jury was a recording from J.D.'s mother's cell phone in which J.D. told her mother of the alleged sexual abuse. At the end of the trial, the jury found Marquis guilty.

¶ 2. Marquis appeals his conviction for three reasons. First, Marquis claims that J.D. was not competent to testify. Second, Marquis argues that the State's use of a recorded forensic interview of J.D. violated his constitutional right to confront the witnesses against him. And finally, Marquis claims that the State's use of the recorded conversation between J.D. and her mother, along with the recording of the forensic interview, was cumulative evidence which amounted to improper bolstering.

¶ 3. Having reviewed the record, we disagree and affirm Marquis's conviction.

FACTS AND PROCEDURAL HISTORY

¶ 4. One evening while getting a bath from her mother Amy, J.D., just five years old at the time, informed Amy of several instances in which Marquis had sexually abused her. Upon hearing this, Amy retrieved her cell phone and recorded the rest of J.D.'s claims. Throughout the course of the bath-time conversation with Amy, J.D. claimed that Marquis had touched her-pointing to her vaginal and anal areas. Later that evening, Amy told J.D.'s father, Steven, of J.D.'s claims.

¶ 5. The next day, Steven arrived at the Cleveland Police Department and lodged a complaint; Marquis was then arrested for sexual battery. Marquis's indictment alleged that the sexual-battery incidents occurred between August 1, 2012, and December 31, 2013. A copy of Amy's cell-phone recording was given to the police and eventually was played for the jury at trial.

¶ 6. On September 24, 2014, Rachel Daniels, a social worker for the Children's Safe Center at University of Mississippi Medical Center in Jackson, conducted a forensic interview of J.D. During this interview, J.D. disclosed the details of the alleged sexual abuse. As a result of this interview, Daniels, as an expert in social work and forensic interviewing, concluded that J.D.'s disclosures were consistent with a child who had been sexually abused. This forensic interview was recorded, and it also was played for the jury at trial. Daniels also testified at trial.

¶ 7. The day before trial, the trial court held a hearing to determine whether J.D. was competent to testify. During the hearing, the judge asked J.D., who was seven years old at the time, a series of questions about her familiarity with courtrooms, judges, and witnesses. In response to the judge's questions, J.D. nodded her head "yes" or shook her head "no." Then the judge asked whether telling the truth was better than telling a lie; J.D. responded, "[t]he truth." The judge asked J.D. if she knew why she was in court. Initially, there was no audible response from J.D., but she then shook her head "no." The judge explained to J.D. that she was there to talk about events that may have happened to her when she was younger. And when asked if she could do that, J.D. nodded her head "yes." This prompted the judge to instruct J.D. to answer the question verbally-yes or no; J.D. said "yes." When asked if she knew that she was supposed to tell the truth, J.D. said "yes."

¶ 8. The judge then asked J.D. if she knew the definition of a promise. J.D. replied "yes," but struggled to define the word. The judge provided a definition of a promise: "[I]t [is] when you say you [are going to] do something, and you do it." J.D. responded "yes." After J.D. testified that she had never seen anyone take an oath, the judge explained to J.D. that an oath is a promise to tell the truth. The judge then told J.D. that she would have to tell the truth in court; J.D. said "okay."

¶ 9. At the end of the hearing, the judge found that J.D. understood the questions and the difference between telling the truth and telling a lie. The judge further found that J.D. knew that telling the truth was the right thing to do, and that she seemed to understand "the significance of the oath, to the extent a seven year old could." And so the judge found J.D. competent to testify at trial. In response to the judge's finding that J.D. was competent to testify, defense counsel raised no objection, but stated:

Your Honor, we know the [c]ourt has made a determination of competency at this ... time as to [J.D.]. We also make notice to the [c]ourt that most of the questions, she just nodded and, tomorrow ... she will have to respond. We would also make our-most of our concerns are when I'm asking questions, she doesn't answer. That will not be effective cross-examination if she doesn't answer the question. We just make that known for the record. That's a concern we have because if she doesn't answer, then the [c]ourt is [going to] have to do something else.

¶ 10. The next day, trial began. During the trial when asked, J.D. was able to demonstrate where Marquis had touched her. She also was able to tell the location where the touching took place-at her grandmother's house, while her grandmother was at work. During the direct examination, J.D. often had to be led by the prosecutor. And in response to some detailed questions, J.D. said she could not remember. During cross-examination, many of J.D.'s responses could not be heard due to her soft speech and noise from the operation of a street sweeper outside the courthouse. Nonetheless, J.D. was able to answer many of defense counsel's questions.

¶ 11. Maquis testified in his own defense, denying the allegations of sexual battery lodged against him. During the trial, the recorded forensic interview of J.D., as well as the cell-phone recording taken by Amy of her and J.D.'s bath-time conversation, wherein J.D. first told of the alleged sexual abuse, were played before the jury. And after consideration of all the evidence presented at trial, the jury found Marquis guilty of sexual battery. Marquis now appeals to this Court.

DISCUSSION

I. J.D.'s Competence to Testify

¶ 12. On appeal, Marquis argues that the trial court abused its discretion in finding J.D. competent to testify. As a general matter, "every person is competent to be a witness except as restricted by [ Mississippi Code Section] 13-1-7 (competency of spouses) and [Section] 13-1-11 (persons convicted of perjury or subornation of perjury), or by the Mississippi Rules of Evidence." Sudduth v. State , 562 So.2d 67, 70 (Miss. 1990) ; see M.R.E. 601. And this Court has held that the "[c]ompetency of a witness is to be determined by the trial court, in its discretion." Eakes v. State , 665 So.2d 852, 869 (Miss. 1995).

¶ 13. In its brief, the State argues that Marquis failed to object to the competency determination and therefore waived this issue. Indeed, this Court has held that "[i]n order to preserve an issue for appeal, counsel must object. The failure to object acts as a waiver." Carr v. State , 873 So.2d 991, 1004 (Miss. 2004).

¶ 14. Having reviewed the record, we find that Marquis failed to object to the trial court's determination that J.D. was competent to testify, and as a consequence, Marquis failed to preserve the issue for appeal. For one, the issue was not raised at any point during trial. In fact, the closest thing to an objection was defense counsel's statement after the trial court's competence determination, when defense counsel stated:

Your Honor, we know the [c]ourt has made a determination of competency at this ... time as to [J.D.]. We also make notice to the [c]ourt that most of the questions, she just nodded and, tomorrow ... she will have to respond. We would also make our-most of our concerns are when I'm asking questions, she doesn't answer. That will not be effective cross-examination if she doesn't answer the question. We just make that known for the record. That's a concern we have because if she doesn't answer, then the [c]ourt is [going to] have to do something else.

The State argues that this statement was not an objection, that it was instead a request from defense counsel that the trial court instruct J.D. to answer the questions at trial and to ensure that she did so verbally. We agree and find that Marquis is procedurally barred from raising the issue of J.D.'s competence before this Court. And so we will not reach the merits of the trial court's competence determination itself.

II. Confrontation Clause

¶ 15. Next, Marquis claims that the admission of the forensic interview into evidence violated his right to confrontation. The Supreme Court of the United States has held that, under the Confrontation Clause of the Sixth Amendment, testimonial hearsay is not admissible unless the defendant had an opportunity to cross-examine the declarant. Crawford v. Washington , 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004).

¶ 16. Marquis claims that the forensic interview of J.D. was a testimonial statement, and building on his argument in the previous section, Marquis contends that because J.D. was incompetent to testify, there was no adequate opportunity to cross-examine her, and thus, the introduction of the forensic interview violated his right to confrontation under the Sixth Amendment. We disagree.

¶ 17. As an initial matter, we agree with Marquis that the forensic interview itself was a testimonial statement. We have had held that "a statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused." Hobgood v. State , 926 So.2d 847, 852 (Miss. 2006). Here, the record shows that, after the report of a possible sexual battery was made to the proper authorities, those authorities then "set up a forensic interview to be done." Indeed, Charles Bingham, Chief of Police of Cleveland, testified that setting up the forensic interview was a "step" in the investigation. Bingham further explained the purpose of the forensic interview:

[Y]ou send [the child] to a person that [is] trained [in] talking with children about different types of events that won't ask them leading questions[.] It [is] just a person who [is] trained to jus[t] elicit facts out of the child, and we set up a forensic interview for that to be done.

Eventually, copies of the report and forensic interview were sent to the Cleveland Police Department.

¶ 18. We find that Bingham's testimony makes clear that the forensic interview, though not conducted by law-enforcement officers themselves, was an investigatory step, done for the purpose of gathering a statement that was testimonial in nature. Indeed, the word "forensic" is defined as "[u]sed in or suitable to courts of law[.]" Forensic , Black's Law Dictionary (10th ed. 2014). And so we agree with Marquis's position that the forensic interview is testimonial.

¶ 19. Having said that, even though we find the recording of the forensic interview testimonial, the admission of the recording did not violate the Confrontation Clause of the Sixth Amendment, because Marquis had the opportunity to, and did, cross-examine J.D. at trial. As to this issue, Marquis seems to take the position that, because J.D. was not competent as a witness, he was denied an opportunity to cross-examine her effectively. But as this opinion already has stated, Marquis waived any issues as to the trial court's finding of competence, and nothing in the record leads us to conclude that the trial judge erred in making this determination. And so we find that Marquis had adequate opportunity for effective cross-examination of J.D.

¶ 20. As to Marquis's issues with various aspects of the cross-examination of J.D.-such as various inaudible answers from J.D.-we note that "the Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " Kentucky v. Stincer , 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed. 2d 631 (1987) (quoting Delaware v. Fensterer , 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed. 2d 15 (1985) ).

¶ 21. In sum, we find that the statements made during the forensic interview were testimonial. And because Marquis was not denied an opportunity to cross-examine J.D. effectively, we also find that Marquis's right to confrontation under the Sixth Amendment was not violated.

III. Improper Bolstering

¶ 22. Finally, Marquis argues that the trial judge abused his discretion in admitting the audio recordings of J.D.'s statement to her mother and J.D.'s forensic interview into evidence. Specifically, Marquis claims that these recordings amounted to cumulative testimony resulting in improper bolstering.

¶ 23. At the outset, we note that Marquis's objection to the forensic interview being admitted into evidence was based on his right to confrontation, not that it was cumulative. And so the State argues, and we agree, that, as to that particular recording, Marquis failed to preserve this issue for appeal. See Carr , 873 So.2d at 1004.

¶ 24. As for the admission of the cell-phone recording, we find that the trial judge did not err. This Court has held that "[a] trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling." Shaw v. State , 915 So.2d 442, 445 (Miss. 2005) (quoting Jefferson v. State , 818 So.2d 1099, 1104 (Miss. 2002) ).

¶ 25. Marquis seems to argue that the admission of the cell-phone recording was a repetition of J.D.'s mother's in-court testimony. This reiteration, Marquis contends, amounted to "piling on." We disagree. First, the recording and the witnesses' testimony were necessary to tell the whole story, as the recording often expanded upon and provided context to the witnesses' testimony. For instance, J.D.'s mother testified that J.D. had told her that Marquis had touched her. And yet on the cell-phone recording, J.D. also said that she had touched Marquis.

¶ 26. In the end, in accordance with the great deference afforded to trial judges on the admission of evidence, we find that the admission of the cell-phone recording helped provide context, was necessary to tell a rational and coherent story of the alleged sexual battery, and did not amount to improper bolstering.

CONCLUSION

¶ 27. In conclusion, we affirm Marquis's conviction for the sexual battery of J.D. First, Marquis failed to object to the trial judge's finding that J.D. was competent to testify, and thus, Marquis waived the issue. Second, the admission of the forensic interview of J.D. did not violate the Confrontation Clause of the Sixth Amendment because Marquis had an adequate opportunity to, and did, cross-examine J.D. And finally, the trial court did not err in allowing the admission of the cell-phone recording into evidence.

¶ 28. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      Because J.D. was a minor at the time, initials will be used to protect her anonymity.

      Marquis, while not related to J.D. by blood, was married to J.D.'s grandmother.