author: BEAM, JUSTICE, FOR THE COURT:

text:
    Roger Lee JACKSON a/k/a Roger Jackson a/k/a Roger L. Jackson v. STATE of Mississippi
    NO. 2017-KA-00719-SCT
    Supreme Court of Mississippi.
    June 14, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, JACKSON
    BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. Roger Lee Jackson appeals from his convictions for aggravated assault and felon in possession of a firearm after a jury trial in Hinds County Circuit Court. The jury acquitted Jackson of deliberate-design murder, which was charged in the same indictment. Jackson claims the trial court committed reversible error by: (1) limiting defense counsel's cross-examination of State's witnesses; and (2) limiting defense counsel's closing argument about reasonable doubt. Finding no reversible error, we affirm Jackson's convictions.

FACTS

¶ 2. In the early morning hours on November 11, 2014, two men were shot near Roach Street in Jackson, Mississippi. One of the victims, Quincy McGowan, died. His body was discovered in a nearby vacant lot by a passerby shortly after noon on November 11. Police found ten 9 mm shell casings near the body, and a 9 mm projectile was recovered from McGowan's body during autopsy.

¶ 3. The other victim, Emmanuel Jones, survived after being shot five times-once in the face, three times in the torso, and once in the foot. Doctors retrieved a .22 caliber projectile from Jones's body during treatment at a nearby hospital.

¶ 4. Jones testified at Jackson's trial. According to Jones, he and Jackson were riding around in Jackson's vehicle looking to buy some drugs on the night of the shooting. At some point, Jones and Jackson encountered Jerry Lewis driving another vehicle, with two males riding as passengers. Jones and Jackson followed Lewis to the vicinity of Roach Street and Farrish Street, where they parked the vehicles in a vacant lot.

¶ 5. Jackson and Lewis got out of their vehicles and started talking. The two then began to argue. Jones said he heard Jackson tell one of the other individuals riding with Lewis to get out of the vehicle. Jones said he heard a gunshot, and he saw Jackson shoot McGowan. Jackson then came back to his vehicle and walked over to the passenger side where Jones was sitting, and began shooting Jones.

¶ 6. Jones got out of the vehicle and ran to a nearby house, banged on the door, and collapsed on the porch. The home's occupant called 911.

¶ 7. A couple of weeks after the shooting, Jones identified Jackson from a photo lineup as the person who had shot him. Jones told the jury he believed Jackson had shot him (Jones) because Jackson did not want any witnesses.

¶ 8. On cross-examination, Jones admitted he was a prior-convicted felon and was on probation at the time of the shooting. Jones said he was not allowed to own or possess a firearm. Jones said he did not own a gun, and was not in possession of one at the time of the shootings.

¶ 9. Jones's sister, Jerminda Myers, testified on behalf of the State. Myers said, soon after the shooting, she talked to Jones at the hospital about what had happened. Myers, who had once dated Jackson, said she had received a phone call from Jackson shortly after she talked to Jones at the hospital. Jackson said he heard Jones had been shot. According to Myers, Jackson was questioning her about Jones's condition and trying to find out if Jones was able to talk. Myers said she "played along" and told Jackson Jones "was in critical condition." Myers said "it wasn't true." Jones was not in critical condition, and she had talked to Jones and Jones had told her who shot him. Myers said when Jackson said to her, "Ain't no telling who did it[,]" she "almost bit [her tongue] off."

¶ 10. Myers said she received another phone call from Jackson a day later, asking if she still lived in the same apartment. And Jackson asked if Myers's mother still lived in the same location. Myers said she responded to Jackson: "I asked him did his mom stay in the same spot she lived in."

¶ 11. Detective Rozerrio Camel of the Jackson Police Department testified on behalf of the State and the defense. Detective Camel investigated the scene where McGowan's body was found on November 11.

¶ 12. Detective Camel said Jackson developed as a suspect in the case during his investigation. And Detective Camel said he received a telephone call from an individual named Michael Davis, saying he had some information concerning the death of McGowan.

¶ 13. Davis testified at trial that McGowan was his best friend, whom he had known since the fourth grade. When Davis learned McGowan had been killed, Davis began asking around trying to found out who had killed him. Davis said when he spoke to Jackson, Jackson had admitted killing McGowan. According to Davis, Jackson stated: "Okay. I did it. Now what are you going to do?"

¶ 14. Davis thereafter spoke to Detective Camel and told him that Jackson had said he had killed McGowan. Detective Camel showed Davis a photograph lineup, from which Davis identified Jackson. Davis also identified Jackson in the courtroom as the person who had told him that he had killed McGowan.

¶ 15. On cross-examination, Davis testified that he had a subsequent conversation with Jackson in which Jackson said that Lewis also was involved, along with someone named "Tope."

¶ 16. During the defense's case-in-chief, the defense called two witnesses: Detective Camel and Tommy Bishop, a firearms examiner at the Mississippi Crime Laboratory. Jackson did not testify.

¶ 17. The defense first asked Detective Camel about items that were found at the crime scene and what, if any, forensic tests were conducted on those items. Detective Camel said he had turned over all the items recovered to the Mississippi Crime Lab. The defense also asked Detective Camel whether any DNA samples were collected from Jones, or from anyone else in connection with the shootings. Detective Camel said no DNA samples were collected from anyone.

¶ 18. Lastly, the defense asked Detective Camel whether he had interviewed Lewis during the course of his investigation. Detective Camel said he had interviewed Lewis, and Lewis was considered a potential suspect. But according to Detective Camel, they did not have enough evidence linking him to the shooting(s). Detective Camel said "nobody came to me and told me that they saw [Lewis] shoot [anyone]." When the defense asked Detective Camel whether Lewis was dismissed as a potential suspect, Detective Camel said: "I never did dismiss him. I just didn't have enough to make an arrest. Like I said, I did interview him."

¶ 19. Bishop testified that he had examined one of the bullet projectiles recovered from Jones's body. Bishop said he was positive it was "a .22-caliber[,]" and not a "nine-millimeter." Based on a question asked by the defense, Bishop said the report he received in the case listed two suspects, "Roger Jackson and Jerry Lewis."

¶ 20. After the case was submitted to the jury, Jackson was found guilty of aggravated assault and felon in possession of a firearm. The jury acquitted Jackson of deliberate-design murder. This appeal followed. Additional facts will be related in the discussion of the issues.

DISCUSSION

I. Whether the trial court erred in limiting Jackson's cross-examination of the State's witnesses.

¶ 21. Jackson claims his defense strategy at trial was to impeach Jones and shift the blame for both shootings to Lewis. According to Jackson, at several key points during cross-examination of state witnesses, the State interrupted Jackson's efforts to establish evidence in support of his defense with various objections that were sustained by the trial court. Jackson contends this violated his federal and state constitutional rights to confront witnesses against him. See U.S. Const. amends. V, VI ; Miss. Const. art. 3, § 26 (1890).

¶ 22. First, according to Jackson, after Jones testified that Lewis and Jackson were arguing, defense counsel asked Jones if he had reported to the police that during the argument, Lewis had expressed angry remarks about Lewis's residence being "shot up." The State objected on the basis that the question was "improper," and the trial court sustained without stating the basis, telling the jury to disregard the question and the answer elicited.

¶ 23. Jackson contends that, since the fact Jackson and Lewis had been arguing had been established, the subject of the argument was relevant and probative under Mississippi Rules of Evidence 401, 403, and 613. Jackson argues that the question did not call for a hearsay response, because what was asked was not to establish the truth of the matter asserted, but rather to establish that Lewis was angry. See M.R.E. 801(c). And Jackson submits that, even if it was hearsay, two exceptions to the rule applied, those for excited utterances and a present-sense impression, under Rules 803(1) and (2), because Lewis was involved in an argument.

¶ 24. Jackson next argues that, during Detective Camel's cross-examination, defense counsel was in the process of laying a foundation that something Jones purportedly said to the police gave indication that Lewis may have shot Jones and McGowan. The State objected and the trial court sustained, finding the question called for speculation.

¶ 25. According to Jackson, since it was known two different calibers of ammunition were used in the shootings, it was reasonable to conclude there may have been two shooters. Therefore, the jury was entitled to know what Jones said, if anything, about Lewis firing any weapons.

¶ 26. Lastly, on this issue, Jackson claims that another damaging limitation of his right to confrontation occurred when defense counsel "began to press" Davis on exactly what Jackson had said to him about Lewis's involvement. The State objected to hearsay, and the trial court sustained, finding that testimony about what Jackson had told Davis about Lewis's involvement was inadmissible, self-serving hearsay.

¶ 27. Jackson argues that, since he (Jackson) allegedly admitted to Davis that he had shot McGowan, his (Jackson's) alleged remarks about Lewis's involvement were not self-serving and were admissible. Jackson contends the entire conversation between Davis and himself was admissible under a defendant's right to have his entire statement considered when offered by the State, including any self-serving portions. Jackson relies on Sanders v. State , 237 Miss. 772, 115 So.2d 145, 146-47 (1959), in which this Court held that, in regard to confessions: "[T]he whole of what the accused said on the subject at the time of making the confession should be taken together. The prosecution is entitled to show the whole statement, or if any part is omitted, the accused is entitled to supply it." Further, "the accused is entitled to have the entire conversation including any exculpatory or self-serving declarations connected therewith, also admitted." Id. at 147.

¶ 28. Jackson maintains that Mississippi long has followed the wide-open cross-examination codified in Rule of Evidence 611(b). And the trial court violated this rule by limiting Jackson's cross-examination, which irreparably prejudiced Jackson's attempt to present a defense and violated his constitutional right to confront key witnesses.

¶ 29. Jackson claims he also was prejudiced by not being allowed to present evidence in support of his defense, namely, that Lewis shot McGowan and Jones. Citing Terry v. State , 718 So.2d 1115 (Miss. 1998), and Keys v. State , 635 So.2d 845 (Miss. 1994), Jackson points out that this Court steadfastly has held that a "criminal defendant is entitled to present his defense to the finder of fact, and it is fundamentally unfair to deny the jury the opportunity to consider the defendant's defense where there is testimony to support the theory." Terry , 718 So.2d at 1121.

¶ 30. Jackson urges application of the principles that guided this Court in Terry , in which the defendant was charged with embezzling money from her employer. Id. at 1120-21. In Terry , the defendant sought to present evidence that other people, including the business owners, were possible suspects, but the trial court prevented her from doing so. Reversing the trial court judgment, this Court held that "when an accused is being tried for a serious offense, the jury is entitled to hear any testimony that the [defendant] may have in the way of an alibi or defense." Id. at 1123.

¶ 31. Here, we find no reversible error in any of Jackson's claims. We will discuss each separately.

¶ 32. Our standard of review regarding the admission or exclusion of evidence is abuse of discretion. Brown v. State , 965 So.2d 1023, 1026 (Miss. 2007). "For a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party." Pham v. State , 716 So.2d 1100, 1102 (Miss. 1998).

Jones

¶ 33. The defense sought to impeach Jones with prior, inconsistent, out-of-court statements that the defense contends Jones made to Detective Camel during his investigation in the case. The defense also sought to obtain evidence from Jones in support of its theory in the case that Lewis, not Jackson, may have been the shooter of both victims.

¶ 34. According to the record, after defense counsel asked Jones about his trial testimony regarding the three men in the other vehicle, and about Jones being able to identify only Lewis from the other vehicle, the following exchange took place.

Q. Thank you. Now, [Jackson] and Jerry Lewis, "Puppy," were arguing over something for about ten or 15 minutes, right?
A. Yes, sir.
Q. They were arguing for about ten or 15 minutes?
A. Yes.
Q. Okay. And at some point during this five, ten-minute argument, conversation, Mr. Lewis said, "that m*****f***** had something to do with this," Mr. Lewis's, "residence being shot up," correct?
A. Yes, sir.
Q. Okay.

¶ 35. At that point, the State interrupted and asked to approach the bench. During the bench conference, the State claimed this line of questioning was improper on the ground it constituted hearsay. The trial court asked the defense for a response, to which defense counsel said there was no contemporaneous objection by the State. The trial court responded: "Well, the objection has been made. And do you have a response to it?" The defense replied, "No." The trial court then sustained the State's objection and told the jury to disregard the witness's last comment.

¶ 36. We find no error in the trial court's ruling. Jackson is correct that a defendant in a criminal trial has a fundamental right, implicit in the Confrontation Clauses of our federal and state constitutions, to cross-examine the witnesses testifying against the defendant. U.S. Const. amends. V, VI ; Miss. Const. art. 3, § 26 (1890). The right, however, is not unbounded. Foster v. State , 508 So.2d 1111, 1114 (Miss. 1987), overruled on other grounds by Powell v. State , 806 So.2d 1069 (Miss. 2001). "Its contours are shaped so as to accom[m]odate other legitimate interests[ ]; and it is always subject to the trial court's inherent power to limit cross-examination to relevant factual issues." Id. (citing Chambers v. Mississippi , 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed. 2d 297 (1973), and Johnston v. State , 376 So.2d 1343 (Miss. 1979) ); see also Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed. 2d 674 (1986) ("[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.").

¶ 37. Ultimately, determining whether the trial court abused its discretion in limiting cross-examination necessitates "careful reflection upon the nature and purpose of the question propounded." Black v. State , 506 So.2d 264, 267 (Miss. 1987). And this Court has held that "[o]ne is deprived of the right to cross-examine when the trial court fundamentally and substantially restricts it[,]" and the court does so through no fault of the cross-examiner. Culp v. State , 933 So.2d 264, 276 (Miss. 2005) (citing Myers v. State , 296 So.2d 695, 701 (Miss. 1974) ).

¶ 38. Here, the trial court invited defense counsel to respond to the State's objection that Lewis's alleged statement prior to the shootings about Lewis's "residence being shot up" constituted hearsay. But defense counsel had no response. Accordingly, the defense failed to preserve error, if any, on the trial court's ruling.

¶ 39. This Court repeatedly has held that the trial court cannot be put in error for something upon which it had no opportunity to pass. Patterson v. State , 594 So.2d 606, 609 (Miss. 1992). Now on appeal, Jackson argues for the first time that the question did not call for a hearsay response because what was asked was not to establish the truth of the matter of asserted, but rather to establish that Lewis was angry. This argument, however, was never presented to the trial court and thus is barred from consideration on appeal. Id. at 609.

Detective Camel

¶ 40. The record shows the following exchanges occurred during the defense's cross-examination of Detective Camel:

Q. All right. Now, you further learned that [Jones] believes [Jackson] shot [him, Jones], correct?
A. I can't answer that. I can basically answer what he told me. When I talked to [Jones], [Jones] told me that [Jackson] was the person that shot him.
Q. Okay.
A. [Jones] didn't say he believed. [Jones] said [Jackson] was the person that shot him.
Q. Okay. But you then learned that [Jones] might have been shot unintentionally, correct?
A. I can't answer that. I wasn't there when that was stated.

¶ 41. At this point, the State objected and a bench conference ensued. The State contended the defense was attempting to mislead the jury. The trial court then asked defense counsel, "what's your good faith basis for that?" Defense counsel replied, "Everything I've said comes from the police reports." The trial court said, "Well, if the question is he might have been shot accidentally, doesn't that call for speculation?" Defense counsel replied that he was simply asking Detective Camel "what he learned as the investigation proceeded[,]" and "was not asking him to state it as a matter of truth." Defense counsel argued that Mississippi caselaw says that "out-of-court statements to the police as they relate to what the police did in their police investigation are not hearsay." The trial court responded: "Oh. So the statement that you were attempting to suppress a few moments ago of this witness would-fit that very category, then, right?" Defense counsel replied: "No, sir, it doesn't, because there's a Confrontation clause issue with respect to Michael Davis." The trial court then sustained the State's objection, stating: "I'm going to sustain the objection. I think we're getting pretty far afield. So please continue."

¶ 42. Defense counsel proceeded:

Q. Now, you learned during the course of your investigation that Jerry Lewis, "Puppy," was possibly involved in the shooting of [Jones], correct?
A. I learned that he was there.
...
Q. And you further learned that Puppy ... might have shot [Jones,] correct?

¶ 43. The State objected and another bench conference ensued. The State objected to any mention that "Puppy" was the shooter or possible shooter in this investigation. Defense counsel responded: "I'm taking it all from the police reports, Your Honor, the discovery provided to me and narratives and all the incident reports. I'm taking this right from that, and I'm just building through the investigation. That's all I'm doing." The trial court responded:

All right. The police reports of a murder investigation contain all kinds of information, which may or may not be relevant, provable or salient ultimately. And the information you're offering may be admissible through another source, but it's not admissible through this witness just to go into his investigation and talk about possibilities where there's no supporting evidence that's been ... produced.
Feel free to do that in your case in chief, but not through various rabbit trails ... that the police may have had to go on in the investigation. So I'm going to sustain the objection.

¶ 44. Jackson, as mentioned, argues on appeal that, since it was known that two different sizes of ammunition were used in the shootings of McGowan and Jones, it was reasonable to conclude that there might have been two shooters. And the jury was entitled to know "what Jones said, if anything, about Lewis firing any weapons."

¶ 45. But as the State points out, Jackson failed to make a proffer of Detective Camel's testimony about whether he learned Lewis might have shot Jones. "When testimony is not allowed at trial, a record of the proffered testimony must be made in order to preserve the point for appeal." Green v. State , 89 So.3d 543, 554 (Miss. 2012) ; see also Davis v. State , 130 So.3d 1141, 1150 (Miss. Ct. App. 2013) (refusing to find that trial court abused its discretion in sustaining prosecution's hearsay objection during defense's cross-examination of State's witness when no proffer was offered by the defense and the substance of the evidence sought was not clear from the question(s) ).

¶ 46. Jackson is correct that this Court has held that out-of-court statements, otherwise inadmissible at trial as hearsay, are "admissible to the extent required to show why an officer acted as he did and was at a particular place at a particular time." See Swindle v. State , 502 So.2d 652, 658 (Miss. 1987) ("It is elemental that a police officer may show that he has received a complaint, and what he did about the complaint without going into the details of it.").

¶ 47. But counsel, whether for the State or the defense, "must have a good faith basis for any question asked on cross-examination[.

]" Flowers v. State , 773 So.2d 309, 327 (Miss. 2000) ; Foster , 508 So.2d at 1115, overruled on other grounds by Powell, 806 So.2d 1069 (citing U.S. v. Peterson , 808 F.2d 969, 977-78 (2d Cir. 1987) ). Absent a good-faith basis, it is improper for the cross-examiner to assert in the form of a question the truth of a factual statement included within the question. "For example, counsel should not ask an eyewitness, 'Isn't it true that you are legally blind?' unless counsel has a good-faith basis for asking the question." Foster , 508 So.2d at 1115.

¶ 48. As the State points out, no proffer was made by the defense as to the police reports or as to Detective Camel's testimony with regard to the police reports. The complained-of questions asked by the defense during cross-examination of Detective Camel clearly assert factual statements as true, but without a showing to the trial court and the record as to whether a good-faith basis exists for the assertion. Consistent with Green , the claimed error is waived.

¶ 49. Further, as the above-mentioned facts illustrate, the defense called Detective Camel as a witness during its case-in-chief, and no attempt was made to produce from Detective Camel any similar evidence the defense had attempted to produce during its cross-examination of the detective.

¶ 50. Accordingly, we find no merit in this point of error.

Davis

¶ 51. During cross-examination of Davis, defense counsel sought to admit an audio CD of Davis's interview with police for the purpose of impeaching Davis's testimony about the second conversation Davis had Jackson. The State objected, arguing that Jackson's statements to Davis inculpating other people for McGowan's murder were self-serving. The State also argued that using the audio to impeach parts of Davis's testimony was not proper because it constituted self-serving hearsay from Jackson. The trial court sustained the State's objection, agreeing with the State that the second conversation contained self-serving hearsay from Jackson.

¶ 52. Again, hearsay is an out-of-court statement that "a party offers in evidence to prove the truth of the matter asserted in the statement." M.R.E. 801. An out-of-court statement made by a party and offered against that party is not hearsay. M.R.E. 801(d)(2)(A). Thus, statements made by a defendant to a witness are admissible when offered by the State against the criminal defendant, because they are not hearsay. Id. If a defendant wishes to introduce any of his or her own out-of-court statements, however, he or she must prove the evidence is either not hearsay or is otherwise admissible. See M.R.E. 802.

¶ 53. A "prior statement by a witness" offered to show inconsistency with testimony at trial also is not hearsay. M.R.E. 801(d)(1). This rule, however, applies only to prior inconsistent statements of testifying witnesses. "Whereas an inconsistent statement by a testifying witness can be used to impeach that witness's credibility, an inconsistent account by another source is offered to show an alternative view of the truth." U.S. v. Bao , 189 F.3d 860, 866 (9th Cir. 1999) (quoting Bemis v. Edwards , 45 F.3d 1369, 1372 (9th Cir. 1995) ). "Only the declarant of the prior inconsistent statement, and not another witness, may be impeached with the statement." Id.

¶ 54. Here, the defense told the trial court it wanted to introduce the audio recording of Davis's interview with the police for the purpose of impeaching Davis's testimony, "nothing more." Defense counsel stated: "Your Honor, there were several questions that I asked concerning details, and [Davis] simply-he either contradicted them as never happening or he said he does not remember. So we would like ... to offer this ... audio recording as impeachment."

¶ 55. The trial court responded: "And these are details that he learned from your client?" To which defense counsel replied, "Exactly right. And he says as much."

¶ 56. Defense counsel also told the trial court that the audio recording of Davis's police interview was approximately "34 minutes" long. And redactions needed to be made to it.

¶ 57. For the first time on appeal, Jackson now argues the audio recording was admissible under a defendant's right to have his entire statement considered when parts of that statement are offered by the State, including any self-serving portions. Jackson relies on Sanders , in which this Court explained:

In the proof of confessions, the whole of what the accused said on the subject at the time of making the confession should be taken together. The prosecution is entitled to show the whole statement, or if any part is omitted, the accused is entitled to supply it. It is also well settled that if a confession is made under such circumstances as to authorize its admission into evidence, the accused is entitled to have the entire conversation, including any exculpatory or self-serving declaration connected therewith, also admitted.

Sanders , 237 Miss. 772, 115 So.2d at 146-47.

¶ 58. This rule now is subsumed by Mississippi Rule of Evidence 106. Often referred to as the rule of completeness, it provides that, when a party introduces all or part of a writing, recorded statement, or audio recording, "the adverse party may require introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time." See M.R.E. 106. "Under Mississippi case law the rule of completeness is extended ... even to oral statements." M.R.E. 106 cmt. (citing Sanders , 237 Miss. 772, 115 So.2d 145 ).

¶ 59. Here, Jackson failed to invoke this rule or make any argument for it to the trial court. That should have been done, along with requesting a proffer of the audio recording on that basis. Because that was not done, this Court has no way of knowing what is contained in the audio recording. And the matter cannot be considered on direct appeal. Green , 89 So.3d at 554.

¶ 60. Further, given defense counsel's contention that portions of the audio recording would have to be redacted, it is presumable that defense counsel did not want to proceed under this rule. Otherwise, the door would have been opened for the State to have the audio recording played in its entirety, unredacted. See M.R.E. 106.

¶ 61. We find no reversible error in the trial court's ruling, and this point of error is without merit.

II. Whether the trial court erred in limiting defense counsel's closing argument about reasonable doubt.

¶ 62. During closing arguments, defense counsel began to address the jury about the State's burden to prove its case beyond a reasonable doubt. The State objected, claiming the defense was attempting to define reasonable doubt. The trial court overruled the objection.

¶ 63. Defense counsel proceeded, stating:

You can think of reasonable doubt relative to other degrees of certainty. Now, by example, in a criminal case, you may think the accused probably committed the crime. That's not enough. You may believe the accused likely committed the crime. That too is not enough.

The State again objected at that point, and the trial court sustained the objection.

¶ 64. Jackson contends this was error. Jackson submits that, although the trial court is not allowed to define reasonable doubt for a jury, it has never been the case that counsel is forbidden from arguing what reasonable doubt is or comparing the burden to other standards during closing arguments.

¶ 65. This Court has held that "a definition of reasonable doubt is not a proper instruction for the jury[,]" because "reasonable doubt defines itself and needs no further definition by the court." Martin v. State , 854 So.2d 1004, 1009 (Miss. 2003) ; Chase v. State , 645 So.2d 829, 851 (Miss. 1994). "The meaning of these words is not obscure and it must be assumed that the members of the jury were ... of ordinary intelligence and capable of understanding their meaning." Cannon v. State , 190 So.2d 848, 851 (Miss. 1966).

¶ 66. Jackson also is correct, however, that this Court has not held it improper for counsel (either for the defense or the prosecution) to discuss or explain the reasonable-doubt standard during closing arguments, as long as counsel does so within proper bounds.

¶ 67. Here, we find that defense counsel's comparison of "probably committed the crime" and "likely committed the crime" to the reasonable-doubt standard did not cross those bounds. And the trial court erred in sustaining the State's objection to it.

¶ 68. But we also find the error was harmless in this instance, beyond a reasonable doubt. Accordingly, we reject Jackson's contention that the error requires reversal of his convictions.

CONCLUSION

¶ 69. Finding no reversible error in any of Jackson's assignments of fault, we affirm Jackson's convictions for aggravated assault and felon in possession of a firearm.

¶ 70. AFFIRMED.

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


source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE, FOR THE COURT: BEAM, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

license: Public Domain

text:
    Joe MCGINTY and Diane McGinty v. GRAND CASINOS OF MISSISSIPPI, INC.-BILOXI
    NO. 2012-CT-01777-SCT
    Supreme Court of Mississippi.
    June 14, 2018
    ATTORNEYS FOR APPELLANTS: BRANDI DENTON GATEWOOD, Ocean Springs, DAVID NEIL McCARTY
    ATTORNEYS FOR APPELLEE: TAYLOR B. McNEEL, Biloxi, R. DAVID KAUFMAN, Jackson, JULIE JARRELL GRESHAM
    EN BANC.
    ON WRIT OF CERTIORARI
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. Joe and Dianne McGinty sued Grand Casinos of Mississippi Inc.-Biloxi alleging negligence and breach of implied warranty of merchantability for serving unfit food. The trial court granted summary judgment in favor of Grand Casinos of Mississippi Inc.-Biloxi as to both claims. The Court of Appeals affirmed the trial court's grant of summary judgment as to the negligence claims, but reversed the trial court's grant of summary judgment as to the breach-of-implied-warranty claims. We granted certiorari. We affirm the judgment of the Court of Appeals, and we affirm in part and reverse in part the judgment of the circuit court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. According to their depositions, on September 20, 2004, Joe and Dianne McGinty ate breakfast and a snack at their home in Brandon, Mississippi. That evening, they ate dinner at LB's Steakhouse in Gulfport, Mississippi. They each had prime rib and a glass of wine with dinner. They then drove to the Grand Casinos of Mississippi, Inc.-Biloxi (Grand Casinos) in Biloxi, Mississippi. They gambled for several hours and drank more wine; however, they did not eat any more food. They went to bed between 10:00 p.m. and midnight.

¶ 3. The McGintys awoke early the next morning and ate breakfast at 5:30 a.m. at the Island View Café inside the Grand Casinos. Mr. McGinty ordered "Mama's Eggs and Chops," which included two grilled pork chops. Mr. McGinty took a bite of the pork chop and "didn't like it." Therefore, Mrs. McGinty finished the remainder from his plate.

¶ 4. Mr. McGinty testified that "somebody dropped the ball with ... that meat that we had." Counsel then asked, "Why do you think it was the meat? And when I'm talking about the meat, I'm talking about the pork chop." Mr. McGinty stated, "Because it tasted bad." On the other hand, Mrs. McGinty did not remember the pork chops "tasting funny." Mr. McGinty also was asked: "Do you think it's possible that you could have eaten somewhere-something else that did not-was not at Grand Casinos that caused you and [Dianne] to get sick?" Mr. McGinty replied, "No." When asked why he thought that, he stated:

Because of the length of time that-it was the only thing I had eaten was up at the other Grand. So it was either-that prime rib, they-they're famous for-they were famous for prime rib. And the only thing that we had eaten was the next morning, and it tasted bad. You know, when you-it looked good, but it just tasted bad.

¶ 5. After breakfast, the McGintys rode in a limousine provided by the Grand Casinos to New Orleans, Louisiana. They each drank only water in the limousine. However, in the limousine, Mrs. McGinty began to feel nauseated, and she experienced diarrhea at the airport. They then caught a flight to Los Angeles, California. About an hour into the flight, Ms. McGinty began vomiting. Mr. McGinty also fell ill. He began to sweat profusely, feel nauseous, and become incontinent. The flight attendants gave him oxygen and moved the couple to the back of the plane. Mr. McGinty vomited and had diarrhea as well. The McGintys did not eat or drink anything on the airplane.

¶ 6. When the plane landed in Los Angeles, Mr. McGinty was carried off the airplane on a stretcher by emergency medical technicians. The McGintys were transported to a local hospital by ambulance. On the way to the hospital, Mrs. McGinty began to vomit a large amount of blood. At the hospital, she received two blood transfusions and was treated for an esophageal tear. Mr. McGinty was discharged from the hospital the same day, but Mrs. McGinty stayed in the hospital for three days. Mrs. McGinty stated no tests were conducted for food poisoning at the hospital.

¶ 7. Upon returning home, Mrs. McGinty saw her general doctor. Prior medical records from her general doctor show Mrs. McGinty had a history of digestive problems. Two months before the alleged food poisoning, her medical records noted that she suffered from "abdominal pain within 30 minutes after eating which is chronic/recurring frequently, ... [c]rampy/colicky abdominal pain, diarrhea 15-30 minutes after eating which is chronic." Further, Mrs. McGinty's medical records show that she had vomited blood in March 2003, which also occurred prior to the alleged food poisoning.

¶ 8. On October 18, 2004, Dr. Jerome Helman, Mrs. McGinty's treating physician from the California hospital, wrote a letter to Mrs. McGinty and enclosed her medical reports. In the letter, Dr. Helman stated Mrs. McGinty's "upper gastrointestinal bleeding was caused by the severe vomiting, which related to food and drink [she] had prior to the event."

¶ 9. On September 13, 2007, the McGintys filed suit in Harrison County Circuit Court against Grand Casinos for negligence and breach of the implied warranty of merchantability. In January 2012, Grand Casinos filed a motion for summary judgment, arguing the McGintys could not meet their burden of proof to establish a food-poisoning claim under Mississippi law. Grand Casinos argued the McGintys had failed to present lab analyses proving their illnesses were caused by tainted food eaten at Grand Casinos, and they had failed to offer sufficient medical-expert testimony on causation.

¶ 10. The trial court granted Grand Casinos' motion for summary judgment. The McGintys appealed. The Court of Appeals held the trial court's judgment, as it pertained to the McGintys' negligence claims, was proper because there was no genuine issue of material fact as to whether Grand Casinos had breached its duty of care. The Court of Appeals then reversed the trial court's judgment with respect to the breach-of-implied-warranty claims, holding sufficient evidence was presented to allow a jury reasonably to infer the food consumed by the McGintys at the Island View Café caused their illnesses. Grand Casinos filed a petition for certiorari, and we granted it.

STATEMENT OF THE ISSUES

(1) Whether summary judgment was properly granted on the McGintys' negligence claim.

(2) Whether summary judgment was properly granted on the McGintys' breach-of-implied-warranty-of-merchantability claim.

STANDARD OF REVIEW

¶ 11. With a summary-judgment motion, the mover bears the initial burden of supporting the motion for summary judgment. Miss. R. Civ. P. 56. "When a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." Miss. R. Civ. P. 56.

¶ 12. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). In other words, summary judgment is appropriate where the nonmoving party fails to "make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Buckel v. Chaney , 47 So.3d 148, 153 (Miss. 2010). The evidence is reviewed in the light most favorable to the nonmoving party, and the Court reviews the grant or denial of summary judgment de novo. Bennett v. Hill-Boren, P.C. , 52 So.3d 364, 368 (Miss. 2011).

ANALYSIS

(1) Whether summary judgment was properly granted on the McGintys' negligence claim .

¶ 13. The trial court and the Court of Appeals placed great weight on Goodwin v. Misticos , 207 Miss. 361, 42 So.2d 397 (1949). In Goodwin , Mr. Goodwin, a restaurant patron, became ill within a few hours of eating corned beef. Goodwin , 42 So.2d at 397. Mr. Goodwin later was diagnosed with ptomaine poisoning and died as a result of his illness. Id. Mr. Goodwin's wife, Mrs. Goodwin, sued the restaurant for negligence. Id. at 397-98.

¶ 14. Mrs. Goodwin presented testimony regarding Mr. Goodwin's eating habits on the day he ate the corned beef. Id. at 398. She also testified that her corned beef did not "taste right," but Mr. Goodwin did not complain about his corned beef. Id. Further, she stated he became sick shortly after eating the corned beef. Id. Dr. Copeland testified "that ptomaine poisoning ... is a bacterial infection of the alimentary canal, carried there generally by eating food, drinking water, or something." Id. at 402. The trial court granted a directed verdict in favor of the restaurant. Id. at 399.

¶ 15. On appeal, the Goodwin Court considered what reasonable inferences could be drawn based on the proof presented. Id. at 400-03. The Goodwin Court stated, "[N]o such inference upon inference will be permitted to prevail when the fact sought to be established by such inference upon inference is capable of more satisfactory proof by direct, or positive or demonstrative, evidence, within the reasonable power of the party holding the burden to produce." Id. at 402. The Goodwin Court then analyzed the proof presented and what reasonable inferences could be drawn. It stated, "From the proof the jury could reasonably find: (1) That Mr. Goodwin ate the corned beef; (2) in one and one-half hours he became ill; and (3) from these two proven facts the jury could reasonably infer there was a germ in the corned beef that made him sick." Id. at 402. The Goodwin Court then concluded what could not be reasonably inferred: " We cannot from this inference draw another inference that the bacteria got into the food or drink as a result of the negligence of the restaurateur." Id. at 403. Therefore, the Goodwin Court affirmed the trial court's judgment. Id.

¶ 16. Here, the McGintys presented proof of the following: (1) they ate a pork chop at a Grand Casinos' restaurant, and Mr. McGinty testified it tasted bad; (2) hours after tasting the pork chop, they experienced vomiting and diarrhea; and (3) more than three weeks after they experienced these symptoms, a physician wrote Mrs. McGinty a letter, stating her prior symptoms were "related to food and drink [she] had prior to the event." The McGintys maintain that the instant proof establishes the causal connection required in a negligence suit.

¶ 17. However, based on the proof presented, the connection between the alleged contaminated pork chop and the illness and that the alleged contaminated pork chop was the result of Grand Casinos' action cannot be reasonably inferred. In other words, as in Goodwin , the McGintys have failed to make a prima facie case for negligence. Goodwin , 42 So.2d at 403.

¶ 18. Thus, we agree with the Court of Appeals that the evidence presented was insufficient to support the McGintys' claim of negligence. Accordingly, the Court of Appeals correctly affirmed the trial court's grant of summary judgment in favor of Grand Casinos on the McGintys' negligence claim(s).

(2) Whether summary judgment was properly granted on the McGintys' breach-of-implied-warranty-of-merchantability claim.

¶ 19. An implied warranty of merchantability "provides that when a sale of goods is made, there is an implied warranty that the goods are merchantable if the seller is a merchant with respect to goods of that kind." Watson Quality Ford, Inc. v. Casanova , 999 So.2d 830, 833 (Miss. 2008) (internal quotation omitted). The elements of an implied-warranty claim are the following:

(1) That a "merchant" sold "goods," and he was a merchant with respect to "goods of the kind" involved in the transaction, (2) which were not merchantable at the time of the sale, and (3) injuries and damages to the plaintiff or his property, (4) caused proximately and in fact by the defective nature of the goods, and (5) notice to the seller of the injury.

Vince v. Broome , 443 So.2d 23, 26 (Miss. 1983).

¶ 20. In implied-warranty claims for nonmerchantable food, the cases turn on whether the evidence presented emerges from speculation and allows a reasonable inference to be drawn. See John Morrell & Co. v. Shultz , 208 So.2d 906 (Miss. 1968) ; Newton Coca-Cola Bottling Co. v. Shaw , 236 Miss. 890, 112 So.2d 374, 375 (1959) ; Goodwin , 42 So.2d at 400. The Court of Appeals held that the that the evidence presented did create a jury question as to whether defective pork chops caused the McGintys' illnesses. McGinty v. Grand Casinos of Mississippi, Inc.-Biloxi , No. 2012-CA-01777-COA, 245 So.3d 555, ----, 2014 WL 1887548, *9 (Miss. Ct. App. May 13, 2014). We agree.

¶ 21. As explained above, Goodwin provides guidance for food-poisoning cases; however, Goodwin was a negligence case. In fact, Goodwin distinguished itself from a breach-of-implied-warranty case, stating, "It will be observed that this suit is not framed on any implied warranty ...." Goodwin , 42 So.2d at 398. However, as the Court of Appeals did, we look to Goodwin to begin our reasonable-inference analysis. Even in an implied-warranty case, Goodwin provides guidance regarding the dividing line between the proof needed for a negligence case versus the proof needed for an implied-warranty case.

¶ 22. As stated above, the Goodwin Court analyzed the proof presented and what reasonable inferences could be drawn. It stated, "From the proof the jury could reasonably find: "(1) [t]hat Mr. Goodwin ate the corned beef; (2) in one and one-half hours he became ill; and (3) from these two proven facts the jury could reasonably infer there was a germ in the corned beef that made him sick." Id. at 402. The Goodwin Court then stated what could not be reasonably inferred, "[w]e cannot from this inference draw another inference that the bacteria got into the food or drink as a result of the negligence of the restaurateur." Id. at 403. Notably, this final, unreasonable inference is not an element of a breach-of-implied-warranty claim.

¶ 23. Here, the McGintys presented evidence that (1) the pork chop "tasted funny," (2) a doctor opined that the illness was "related to food or drink," (3) the McGintys drank only water between eating the pork chop and becoming ill, (4) the McGintys both ate the same food and both became sick around the same time, and (5) the time between ingesting the pork chops and their illnesses was short in duration. With similar information, the Goodwin Court concluded a reasonable inference could be drawn by the jury that Mr. Goodwin got sick from the corned beef. Id. at 401 ; see also Masonite Corp. v. Hill , 170 Miss. 158, 154 So. 295, 299 (1934). Although, as mentioned above, Goodwin did not address a breach-of-implied-warranty claim, its guidance regarding reasonable inferences cannot be ignored. Therefore, Goodwin supports the McGintys' argument that they have presented enough evidence to survive summary judgment on their breach-of-implied-warranty claim.

¶ 24. Before we conclude, we think it pertinent to address the several cases within Mississippi that touch upon the issues before the Court today. Because the cases either support the holding we reach today or are distinguishable, we conclude summary judgment is not warranted for the breach of implied warranty claim.

¶ 25. First, in John Morrell & Co. v. Shultz , 208 So.2d 906 (Miss. 1968), the plaintiff sued alleging that she became ill "as the consequence of eating a can of potted meat." Shultz , 208 So.2d at 906. After receiving a jury verdict in support of the plaintiff, the packing company appealed. The Court considered the evidence presented at trial and reversed the verdict.6 Here, Shultz does not provide guidance, as it is distinguishable from the instant case for two main reasons. In Shultz , at trial, there was no testimony that the potted meat tasted or smelled strangely. Further, here there is also the added element that both the McGintys became ill after eating from the same pork chop.

¶ 26. Second in, Armour & Co. v. McMillain , 171 Miss. 199, 155 So. 218 (1934), the manufacturer of the sausage was sued under a breach-of-warranty claim when the plaintiff became sick from eating the sausage. McMillain went to trial before an appeal. McMillain , 155 So. at 219. The main issue on appeal in McMillain was whether the manufacturer or the grocer (who opened the can and served it to customers) was at fault. Id. at 218. Thus, McMillain too is distinguishable from the instant case. Stated differently, the issue was not whether fault could be established for the allegedly defective sausage, but who-of two possible defendants-was at fault. While the question of who was at fault would not have been presented without first establishing that food poisoning caused the plaintiff's illness, McMillain did not address cause. Thus, because causation was never an issue, judicial notice could have been taken of the contamination, and McMillain is unclear from where causation did arise, McMillain is materially distinguishable from the instant case and is not instructive.

¶ 27. Third, although not binding, we consider how Mississippi district courts have treated alleged food-poisoning cases. In Doss v. NPC Int'l, Inc. , No. 4:09CV38, 2011 WL 754891 (N.D. Miss. Feb. 24, 2011), the plaintiffs sued under a negligence theory. We hold Doss distinguishable for three main reasons. Like in Goodwin , the theory of negligence automatically distinguishes Doss from the instant issue. Further, the plaintiffs suffered differing and inconsistent symptoms. Doss , 2011 WL 754891, **2-3. Additionally, as in Shultz , the whole case turned on the plaintiffs' bald claims regarding the food poisoning and the doctors' opinions; opinions which were based on the history related by the plaintiffs. Id. ; Shultz , 208 So.2d 906 (Miss. 1968). See also Forehand v. Ryan's Family Steak House, Inc. , No. CIV.A.103CV672WJGJMR, 2005 WL 1523381 (S.D. Miss. June 28, 2005) (holding that merely the plaintiff's belief that the food was the source of his illness was not enough to survive summary judgment).

¶ 28. More on point with the instant case is a Southern District case, L.W. ex rel. Ware v. Tyson Foods, Inc. , No. 1:10CV330-LG-RHW, 2011 WL 3476574 (S.D. Miss. Aug. 9, 2011). In Tyson Foods , the plaintiff sued for breach of implied warranty after he became sick, allegedly from consuming hamburger meat. Tyson Foods, Inc. , 2011 WL 3476574, at *2. Another family member who consumed the meat became ill but did not seek medical attention. Id. The plaintiff sought medical attention, and his stool sample tested positive for bacteria. Id. Considering McMillain and Shultz , the fact that more than one family member became ill, and the test from the doctor, the Tyson Foods Court denied the summary judgment motion, despite the plaintiff's past stomach problems. Id. at *3. G i v e n t h e guidance in Goodwin and the additional caselaw outlined above, we hold that the McGintys presented enough evidence to survive summary judgment on their breach-of-implied-warranty claim. The evidence did not come in the form of a test, as in Tyson Foods , but a test is not necessarily required where there is additional evidence. Here, evidence was presented that the pork chop "tasted funny," a doctor's opinion that "the illness was related to food or drink," the fact that the McGintys drank only water between eating the pork chop and becoming ill and the fact that both of the McGintys became ill shortly after both eating from the same pork chop at the same time.

¶ 29. The dissent argues that the instant holding places Mississippi more in line with Tennessee's summary judgment standard. Further, the dissent continually interchanges their argument as to the form (in which the McGintys presented the medical opinion) and the substance of the medical opinion. We disagree on both points. The form of the medical opinion was never objected to, and is therefore waived. Further, the substance of the medical opinion is sufficient to withstand summary judgment. Thus, the decision reached today is not based on what "will, or might be developed later in discovery-or at trial." Glover v. Jackson State Univ. , 968 So.2d 1267, 1274 (Miss. 2007). It is based on the evidence before the court, and the collective effect of the evidence presented is enough for a jury reasonably to infer that the McGintys became ill from a defective pork chop. Therefore, while the evidence presented is not enough for a negligence claim, there is a line between a negligence claim and a breach of implied warranty claim, and this case, in the words of Johnny Cash, walks the line.

CONCLUSION

¶ 30. We hold summary judgment is proper on the McGintys' negligence claim. Therefore, we affirm the Court of Appeals and the trial court regarding the negligence claim. Further, we hold summary judgment is not proper for the McGintys' breach-of-implied-warranty claim. Therefore, we affirm the Court of Appeals and reverse the trial court regarding the breach-of-implied-warranty claim. Lastly, we remand for further proceedings.

¶ 31. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.

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

BEAM, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 32. Respectfully, I dissent from the majority's decision to reverse the trial court's grant of summary judgment in favor Grand Casinos as to the McGintys' breach-of-implied-warranty claims. The McGintys have failed to present sufficient evidence the pork chop they claimed they ate in 2004 at Island View Café inside the Grand Casinos, was contaminated with poisonous bacteria and thus unfit for human consumption. Accordingly, I would hold their breach-of-implied warranty claims also fail as a matter of law.

¶ 33. The only evidence presented in support of the McGintys' claim they both became ill from a contaminated pork chop is their deposition testimony and an unsworn letter from Dianne McGinty's treating physician in California that Dianne's illness was "related to food and drink." As Grand Casinos submitted in the trial court in support of its motion for summary judgment, this letter is wholly insufficient to establish the pork chop was "infect[ed]" with poisonous bacteria, as asserted in the McGintys' complaint.

¶ 34. In every case cited by the majority in support of its decision, expert evidence was presented that the consumer's illness was caused by food poisoning. Such is necessary in this case, and none has been presented.

¶ 35. In Goodwin v. Misticos , 207 Miss. 361, 42 So.2d 397, 399-402 (1949), the treating physician testified at trial that he diagnosed the patient's illness as "ptomaine poisoning," which he explained is a "bacterial infection of the alimentary canal," carried there by food or drink.

¶ 36. In Armour & Co. v. McMillain , 171 Miss. 199, 155 So. 218, 219 (1934), the treating physician testified at trial the consumer's symptoms were caused from "acute botulism, or other food poison taken into the stomach when she ate the sausage."

¶ 37. In Cudahy Packing Co. v. Baskin , 170 Miss. 834, 155 So. 217 (1934), the consumer's treating physician testified that the consumer "was suffering from acute botulism, an illness caused by the eating of food containing the germ known as claustralian botulinus."

¶ 38. And in L.W. ex rel. Ware v. Tyson Foods, Inc. , No. 1:10CV330-LG-RHW, 2011 WL 3476574, **2-3 (S.D. Miss. Aug. 9, 2011), the plaintiff was diagnosed with bacterial-born food poisoning, "campylobacter bacteria."

¶ 39. Comparatively, in Doss v. NPC International, Inc. , No. 4:09 CV 38, 2011 WL 754891 (N.D. Miss. Feb. 24, 2011), the federal district court granted summary judgment in favor of the defendant after finding "the plaintiffs will be unable to establish that they were served food that was unfit for human consumption, based on the documents and exhibits before the court." The district court said:

Not one plaintiff was definitively diagnosed with food poisoning. Rather, physicians diagnosed a few patients with possible food poisoning apparently based on the sole fact that symptoms included nausea and diarrhea and the patient's statements to physicians that they had been exposed to undercooked food. To conclude that Plaintiffs suffered from gastroenteritis at the hands of undercooked food prepared by the Defendant would be speculative at best. "It is well settled in ... Mississippi that a verdict may not be based on surmise or conjecture and that to prove a possibility only is insufficient to make a jury issue." John Morrell & Co. , 208 So.2d [906,] 907 (Miss. 1968) (citing Berry v. Brunt , 252 Miss. 194, 172 So.2d 398 (1965) ).

Doss , 2011 WL 754891, *3.

¶ 40. The majority finds Doss distinguishable because there, the plaintiffs sued under negligence, not breach of implied warranty. But as the majority implicitly recognizes, the only practical difference between the two theories is the duty-of-care element required for negligence, which is not required for implied warranty. The causation requirement, however, is the same for both theories.

¶ 41. Clearly, based upon the aforementioned finding(s) by the federal district court, the district court would have reached the same conclusion in favor of the defendant even if the plaintiffs had sued under implied warranty.

¶ 42. Conversely, the same can be said with Goodwin , which-respectfully-both the majority and the Court of Appeals have completely misconstrued in this instance. Having thoroughly read and considered Goodwin , there remains no question in my mind that had there not been expert evidence in the case affirmatively establishing that the consumer's illness was caused by food poisoning, the Goodwin Court would not have included any of its dicta in the opinion with regard to implied warranty.

¶ 43. Here, similar to Doss , and unlike in Goodwin , McMillain , Baskin , and L.W. , neither of the McGintys was medically diagnosed with food poisoning. For Joe, no medical information whatsoever relating to his alleged visit to the emergency room in California has been provided. For Dianne, all we have is an unsworn letter from her treating physician saying she suffered from "upper gastrointestinal bleeding" that "was caused by the severe vomiting, ... related to food and drink [she] had prior to the event."

¶ 44. Even if the letter was admissible as evidence (which it is not), no reasonable inference beyond speculation can be drawn from it that Dianne's illness was the result of food poisoning. And in turn, no inference can be drawn from Dianne's illness that the pork chop she ate contained harmful bacteria which rendered the food unfit for human consumption. Furthermore, the letter actually confirms (rather than excludes) what Dianne's prior medical records show, that she has experienced similar episodes in the past due to other ongoing medical conditions.

¶ 45. The majority, however, declines to address or consider this because it finds that: (1) Grand Casinos did not object to the "form" of the California physician's letter; and (2) "the content of the evidence-the treating physician's opinion could be admissible at trial, if properly presented." Respectfully, the majority is incorrect on each point.

¶ 46. Contrary to the majority's finding, Grand Casinos did object to the California physician's letter. Grand Casinos moved for summary judgment on the ground there is no sufficient medical expert evidence that the McGintys' alleged illnesses were caused by a tainted pork chop. In response, the McGintys offered the above-mentioned, unsworn letter from Dianne's treating physician in California. Grand Casinos replied, claiming the letter "is not even close to sufficient to establish that the pork chop 'was infected by poisonous bacteria[.]' " I completely agree.

¶ 47. While Grand Casinos bears the initial burden of supporting its motion for summary judgment, the McGintys retain the burden of proof throughout their implied-warranty cause of action. When the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production for Rule 56 purposes, by either (1) affirmatively negating an essential element of the nonmoving party's claim or (2) demonstrating the nonmoving party's evidence at the summary-judgment stage is insufficient to establish the nonmoving party's claim. See, e.g., Galloway v. Travelers Ins. Co. , 515 So.2d 678, 684 (Miss. 1987) (holding that Rule 56 embodies the same concepts explained by Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), in construing Federal Rule of Civil Procedure 56 ) ).

¶ 48. Grand Casinos fully met Rule 56's second alternative (the Celotex standard), by demonstrating the California physician's letter is insufficient to establish the pork chop Dianne ate was infected with poisonous bacteria.

¶ 49. The majority, however, treats the deficiencies of the California physician's letter as a matter of form that should not yet be considered for summary-judgment purposes. Ostensibly-and I truly hope this is the case, for the sake of restauranteurs and the like in Mississippi-the majority finds so on the expectation that more is to come from the treating physician in California.

¶ 50. But while I hope this is the majority's ultimate position, the majority nevertheless departs from this Court's precedent in so holding. In Glover v. Jackson State University , 968 So.2d 1267, 1274 (Miss. 2007), we reiterated: "It is not enough to say (as many do) that summary judgment should be denied because evidence will, or might, be developed later in discovery-or at trial."

¶ 51. Yet the majority finds this appropriate in this instance based upon language it reads from Illinois Central Railroad Co. v. Jackson , 179 So.3d 1037, 1043 (Miss. 2015) : "To be exact, the content of summary-judgment evidence must be admissible at trial although the evidence may be in a form, such as an affidavit, that would not be admissible."

¶ 52. But this statement from Jackson is actually a Celotex illustration. See Jackson , 179 So.3d at 1043 (citing Jeffrey Jackson, Mississippi Civil Procedure § 11:22 (2009) ). Sworn affidavits generally are considered hearsay and not admissible at trial as competent evidence; they are, however, the exception to the requirement that summary judgment be supported or opposed only by admissible evidence. See M.R.C.P. 56(e). Thus, a properly sworn affidavit, made on personal knowledge affirmatively showing the affiant is competent to testify to the matter stated therein, while not admissible, may be enough to defeat summary judgment. Id. See, e.g. , Rebel Oil Co., Inc. v. Atlantic Richfield Co. , 51 F.3d 1421 (9th Cir. 1995) (an expert-opinion affidavit "may defeat summary judgment if it appears that the affiant is competent to give an expert opinion and the factual basis for the opinion is stated in the affidavit"); but see also In re Agent Orange Prod. Liab. Litig. , 818 F.2d 187, 193 (2d Cir. 1987) (noting that to defeat summary judgment, expert affidavits cannot involve "mere speculation or idiosyncratic opinion").

¶ 53. I point this out because the majority's view in this case with regard to the California physician's letter for purposes of Rule 56, appears very similar to the view Tennessee once held with regard to its own Rule 56.

¶ 54. In Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993), Tennessee began to contemplate that the Celotex standard, which most states (including Mississippi) have unified with in their respective Rule 56 practice, was not a good fit for Tennessee's Rule 56 practice. Then, culminating with Hannan v. Alltel Publishing Co. , 270 S.W.3d 1, 8-9 (Tenn. 2008), the Tennessee Supreme Court explicitly parted ways with the Celotex standard, declaring:

[A] moving party's burden of production in Tennessee differs from the federal burden. It is not enough for the moving party to challenge the nonmoving party to "put up or shut up" or even to cast doubt on a party's ability to prove an element at trial.
...
In summary, in Tennessee, a moving party who seeks to shift the burden of production to the nonmoving party who bears the burden of proof at trial must either: (1) affirmatively negate an essential element of the nonmoving party's claim; or (2) show that the nonmoving party cannot prove an essential element of the claim at trial.

¶ 55. But soon thereafter, Tennessee realized it had fallen into a burning ring of fire with its newly held standard. And in Rye v. Women's Care Center of Memphis, MPLLC , 477 S.W.3d 235, 264 (Tenn. 2015), the Tennessee Supreme Court parted ways with it, holding: "Because the standard articulated in Hannan is unworkable and inconsistent with the history and text of Tennessee Rule 56, we ... overrule Hannan , and fully embrace the standards articulated in the Celotex trilogy."

¶ 56. Here, whether the California physician's letter was sworn to or not was inconsequential and superfluous to Grand Casinos' actual objection to it. Grand Casinos' sole concern (and what it did indeed object to) was the substance (or lack thereof) of the letter's "content" being allowed to establish that Dianne's illness was caused by poisonous bacteria contained in a pork chop served by Grand Casinos.

¶ 57. Again, I fully agree with Grand Casinos. The California physician's letter in no way adequately establishes that Dianne suffered from food poisoning-and much less that the pork chop allegedly consumed by the McGintys was infected by poisonous bacteria.

¶ 58. As far as this record is concerned, the letter makes no mention of poisonous bacteria, or even food poisoning in general, for a reason. And it is not Grand Casinos' burden to demonstrate why.

¶ 59. The only mention of bacteria in this case comes from Joe's deposition, in which Joe said he was familiar with the incubation time of certain bacteria, having previously worked in the food industry as a senior vice-president and general manager of operations for McCarty Farms. But Joe-as he admitted-is not a qualified expert in the field of bacteriology.

¶ 60. I also refuse to take any sort of judicial notice, as the majority and the Court of Appeals appear to do in this case, with regard to the alleged fact the McGintys both became ill soon after eating the same pork chop. In addition to the pork chop the McGintys said they ate, the McGintys said they both ate "prime rib" the night before at another casino. And at one point in Joe's deposition, Joe indicated that the prime rib could have caused their illness.

¶ 61. I point out the case Hairston v. Burger King Corp. , 764 So.2d 176 (La. App. 2nd Cir. 2000). There, it was held that a plaintiff failed to carry her burden of proof that her acute gastroenteritis was the result of food poisoning. Her treating physician testified that none of the tests he conducted revealed any bacteria that could have caused food poisoning; however, he could not rule it out. Id. at 178. Notably, the physician also testified that "the incubation for different types of bacteria which can cause food poisoning is anywhere from an hour to a week." Id.

¶ 62. Here, besides the alleged fact that Joe and Dianne became ill at some point after eating the pork chop, the only other evidence presented in support of their claim the pork chop was unfit for human consumption, is Joe's recollection that it "tasted bad." While evidence that food "tasted bad" has been held in some cases to constitute a factor for consideration in determining whether food was unfit for consumption, all of the cases I have reviewed where this was held also contained evidence of medically diagnosed food poisoning by a treating physician. See, e.g. , Smith v. Gerrish , 256 Mass. 183, 152 N.E. 318 (1926) ; Schuler v. Union News Co. , 295 Mass. 350, 4 N.E.2d 465 (1936).

¶ 63. In my firm opinion, to reach the conclusion reached by the majority and the Court of Appeals in this case that the collective effect of the evidence presented is enough for a jury reasonably to infer that the McGintys became ill from an infected pork chop, requires bootstrapping inference upon inference from the alleged fact both the McGintys became ill some time after eating the porkchop. I do not read any Mississippi precedent as allowing for this.

¶ 64. The rule expressed in Geisness v. Scow Bay Packing Co. , 16 Wash. 2d 1, 132 P.2d 740, 747 (1942), is universal and sound: "The unwholesome character of food is not established, nor is a prima facie case made, merely by showing that the plaintiff became sick after eating it." Geisness , 132 P.2d at 746 (citing Poovey v. Int'l Sugar Feed No. 2 Co. , 191 N.C. 722, 133 S.E. 12 (1926) ; Gracey v. Waldorf System , 251 Mass. 76, 146 N.E. 232 (1925) ). Were it otherwise, plaintiffs would be relieved from proving this essential element in virtually any implied-warranty claim involving wholesomeness and fitness of food, which-in effect-would make all restaurants insurers. See, e.g. , Goodwin , 42 So.2d at 404 (warning of the same for negligence actions).

¶ 65. For these reasons, I concur in part and dissent in part from the majority's decision in this case.

WALLER, C.J., JOINS THIS OPINION.

      Dianne McGinty's name for the case filing is spelled "Diane." However, her deposition provided the spelling is "Dianne."

      The trial court explained that, prior to Hurricane Katrina, LB's Steakhouse was located in Gulfport, not Biloxi.

      After we granted certiorari, Caesars Entertainment Operating Company, Inc., including its affiliate Grand Casinos of Mississippi, Inc., filed for relief under Chapter 11 of the Bankruptcy Code with the Bankruptcy Court for the Northern District of Illinois. On February 17, 2015, this Court stayed the appeal pursuant to 11 U.S.C. § 362(a). On January 23, 2018, this Court lifted the stay for purposes of this appeal, based upon an agreed order entered by the bankruptcy court.

      While Grand Casinos argued the content of the letter was wholly insufficient for summary-judgment purposes, the form of the letter, as summary-judgment evidence, was not specifically objected to. Therefore, we refrain from considering whether it constitutes proper summary-judgment evidence, as the content of the evidence-the treating physician's opinion-could be admissible at trial, if properly presented . Illinois Cent. R. Co. v. Jackson , 179 So.3d 1037, 1043 (Miss. 2015) ("To be exact, the content of summary-judgment evidence must be admissible at trial although the evidence may be in a form, such as an affidavit, that would not be admissible."). In other words, we offer no opinion as to admissibility of the document as to form, because without Grand Casino's objection to the form, it is waived .

      The opinion is not clear whether the claim was negligence or a breach of the implied warranty.

      We think it pertinent to point out that, while the Mississippi District Court cases cited infra were faced with summary judgment motions, the Supreme Court cases addressed evidence presented at trial. Therefore, the summary judgment burden and lack of objection to the form, as is the case here, was not an issue.

      In 1934, the Court held: "That a can opener and ice pick, used in store to open cans and to remove contents and left exposed when not in use, could be contaminated by bacteria is so well known that judicial notice may be taken of the fact." Cudahy Packing Co. v. Baskin , 170 Miss. 834, 155 So. 217 (1934) (emphasis added). McMillain relied on Baskin in its holding. McMillain , 155 So. at 219.

      The Doss Court stated, "The only other evidence presented in support of plaintiffs' negligent preparation claim is the statement by one of the plaintiffs that she identified something red in her chicken wings during consumption that she believed to be blood." Doss , 2011 WL 754891, at *2 (emphasis added).

      Like the majority, I too don't mind borrowing from the great Johnny Cash.