text:
    William MACK, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00035-COA
    Court of Appeals of Mississippi.
    June 6, 2017 Rehearing Denied November 14, 2017 Certiorari Denied March 1, 2018
    ATTORNEY FOR APPELLANT: SETH MAGILL HUNTER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA McCLINTON
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. A Forrest County jury found William Mack Jr. (Mack) guilty of aggravated assault. See Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2006). On appeal, Mack asserts the following issues: (1) the circuit court was not impartial in dismissing members of the venire; (2) insufficient probable cause existed to issue his arrest warrant; (3) the State elicited testimony that violated his right against self-incrimination; (4) the circuit court improperly instructed the jury; (5) the circuit court erred by denying his motion for a judgment notwithstanding the verdict (JNOV); and (6) the jury's verdict was against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm Mack's conviction and sentence.

FACTS

¶ 3. On September 20, 2013, a grand jury indicted both Mack and his father, William Mack Sr. (Mack Sr.), for the aggravated assault of Joseph Scott (Scott). The circuit court subsequently granted Mack's motion to sever his trial from his father's trial.

¶ 4. At Mack's trial, Scott testified that he was standing outside his grandparents' house in Hattiesburg, Mississippi, on January 25, 2013, when Mack shot him. Scott testified that he had known Mack since they were both young and that he had considered Mack to be like a younger brother. The day before the shooting, Scott testified that Mack Sr.'s brother, Steve Mack, accused him of stealing candy from a store Steve operated out of his house. Scott testified that, even though Steve threw a brick at him and then threw a can of paint on him during the argument, he did not fight with Steve.

¶ 5. The morning after the altercation with Steve, Scott testified that he was walking at a park with his girlfriend when he received news that Steve also had an argument with his friend, Warren Randle. Upon returning to his grandparents' home, Scott testified that Mack Sr. drove up and got out of a vehicle holding a baseball bat in his left hand and a gun in his right hand. Scott stated that Mack Sr. swung the bat at him but that he (Scott) managed to grab the bat. Scott further stated that Mack Sr. then got back into his vehicle and drove away. However, Scott testified that Mack Sr. returned a few minutes later and that Mack exited the vehicle holding a gun. Scott claimed that Mack fired several shots at him, hitting Scott in both the arm and the leg and hitting Scott's truck several times. Scott stated that he immediately drove his truck to the police station to report the crime and to seek medical attention.

¶ 6. Officer Demetrius Breland with the Hattiesburg Police Department testified that he was on patrol duty the morning of the shooting. While parked at an intersection, Officer Breland observed a black male in a gray Jeep drive by at a high rate of speed. Officer Breland also noticed that the vehicle had a flat tire, and he attempted to follow the Jeep to see what was wrong. After patrolling several streets, Officer Breland found the Jeep parked in front of a nearby residence. However, the Jeep was unoccupied, and Officer Breland saw no one standing near the Jeep. Officer Breland testified that he continued his patrol but returned to the residence a short time later after receiving a dispatch about a gray Jeep involved in a shooting. Officer Breland stated that the Jeep was no longer parked at the residence by the time he returned. After spending a few more minutes trying to relocate the Jeep, Officer Breland testified that he drove to the police station to take Scott's statement. Upon arriving at the police station, Officer Breland observed Scott's white truck with the windows shattered. He further testified that medical personnel had arrived and were treating Scott's injuries.

¶ 7. Randle testified that he lived down the street from Scott's grandparents and that he was home when the shooting occurred. Randle further testified that he was well acquainted with both Mack and Scott. The night before the shooting, Randle stated that he witnessed an altercation between Scott and Mack Sr.'s brother, Steve. Although Randle testified that the altercation was only verbal, he did state that Steve threw paint at Scott. Following the altercation between Scott and Steve, Randle testified that he went to work around 9 p.m. and then got off work the following morning at 6 a.m.

¶ 8. On the day of the shooting, Randle stated that he saw Mack Sr. driving around the neighborhood with Mack in the passenger seat. About four to six minutes later, Randle claimed he heard the squeal of tires and saw Scott's truck being driven in reverse with the Macks' vehicle in pursuit. Randle testified that he subsequently learned Scott had been shot. According to Randle, however, he already knew what was about to happen when he saw Mack Sr. and Mack driving by because news had spread around the neighborhood that the Macks were out to get Scott.

¶ 9. Jeff Byrd, who collected evidence from the crime scene, testified that he found several .45-caliber shell casings in the middle of the road in front of Scott's grandparents' house. Byrd further testified, however, that he found no physical evidence to directly link Mack to the shooting. Byrd also stated that, to his knowledge, law enforcement never found the weapon used in the shooting.

¶ 10. The jury also heard testimony from Detective Joel Scott (Detective Scott), who investigated the shooting. During the course of his investigation, Detective Scott learned that Mack's grandmother, Evelyn Mack, owned the Jeep identified as the vehicle driven by the shooters. Detective Scott stated that law enforcement issued arrest warrants in the case and arrested Mack Sr. within one or two days of the shooting. However, Detective Scott said that law enforcement was unable to locate Mack until about two weeks later, when they apprehended him in DeKalb County, Georgia, on February 8, 2013.

¶ 11. Although Randle denied during his testimony that he ever spoke to law enforcement about the shooting, Detective Scott stated that he briefly spoke to Randle. According to Detective Scott, Randle said he knew what caused both the altercation and the shooting. Furthermore, Detective Scott testified that Randle reported seeing Mack Sr. and Mack in the Jeep prior to the shooting. Detective Scott also stated that Randle claimed Mack Sr. was driving the Jeep and that Mack, who was hanging out of the Jeep, said to Randle, "I'm going to get you next." In addition, Detective Scott testified that, shortly after seeing the Macks drive by, Randle heard gunshots.

¶ 12. At a later point in his testimony, however, Detective Scott clarified that he never actually obtained a statement from Randle or physically interviewed Randle. Instead, Detective Scott explained that, in the underlying facts and circumstances used to obtain the arrest warrants for the shooting, he summarized everything he had heard about the case, which included statements attributed to Randle.

¶ 13. After the State rested its case-in-chief, Mack testified on his own behalf. Mack disputed Scott's version of events, and he denied shooting Scott. In fact, according to Mack, he was out of town on the day of the shooting. Mack testified that, the day before the shooting, he heard about an altercation his uncle, Steve, had with Scott. That same evening, Mack testified that he rode his bike to visit his grandmother, who lived next to Scott's grandparents. As he left his grandmother's house around 11 p.m., Mack testified that he saw Scott and Randle's older brother, Larry Randle, standing beside a car. Mack stated that Larry grabbed a handgun and threatened him as he (Mack) rode by the car. As he was riding home, Mack testified that he noticed the same vehicle following him. As a result, Mack testified that he got off his bike, hid from the men, and then fled on foot to his father's house. After telling his father what happened, Mack testified that he asked a friend to drive him to Jackson, Mississippi. Once in Jackson, Mack testified that he bought a bus ticket to Atlanta, Georgia, so that he could stay with his mother and stepfather.

¶ 14. On cross-examination, Mack admitted that he never gave a statement to law enforcement about leaving town the night prior to Scott's shooting. Mack also confirmed that neither his friend who drove him to Jackson nor any of his family from Georgia or Mississippi were present at the trial to confirm his alibi. Upon further cross-examination by the State, Mack stated that he did not want to get his friend involved in the trial. Mack also stated that all his family in Georgia were unable to drive to Mississippi for his trial due to illness, work, or other reasons.

¶ 15. After considering the evidence and testimony, the jury found Mack guilty of aggravated assault against Scott. The circuit court sentenced Mack to twenty years in the custody of the Mississippi Department of Corrections, with seventeen years to serve, three years suspended, and three years of postrelease supervision; to pay a $2,500 fine; and to pay a $100 assessment to the Mississippi Crime Victims' Compensation Program. Mack subsequently filed both an original and supplemental motion for a JNOV or, in the alternative, a new trial. Aggrieved by the circuit court's denial of both motions, Mack appeals.

DISCUSSION

I. Whether the circuit court was partial in dismissing members of the venire.

¶ 16. Mack asserts that the circuit court failed to impartially dismiss members of the venire. He further contends that this partial jury-selection process denied him a fair trial and resulted in a jury that was biased against him from the outset.

¶ 17. "Our supreme court has continuously held that a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereafter." Carr v. State , 190 So.3d 1, 7 (¶ 26) (Miss. Ct. App. 2015). As the record reflects, Mack never raised an objection before the circuit court as to the jury-selection process or the ultimate composition of the jury. He therefore waived his right to complain on appeal. See id. As a result, any review of this issue must be conducted under the plain-error doctrine. See id. at (¶¶ 26-27). Under the plain-error doctrine, we may review obvious errors that affect the defendant's fundamental, substantive rights even though the defendant failed to properly raise the errors at trial. Id. To establish plain error, Mack must demonstrate "(1) an error at the trial level (2) that resulted in a manifest miscarriage of justice." Id. at (¶ 27).

¶ 18. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." Batiste v. State , 184 So.3d 290, 291 (¶ 3) (Miss. 2016) (quoting U.S. Const. amend. VI ). See also Miss. Const. art. 3, § 26 ("In all criminal prosecutions the accused shall have a right to ... a speedy and public trial by an impartial jury of the county where the offense was committed ...."). "The right to a fair trial by an impartial jury is fundamental and essential to our form of government. It is a right guaranteed by both the federal and the state constitutions." Johnson v. State , 476 So.2d 1195, 1209 (Miss. 1985) (citing Adams v. State , 220 Miss. 812, 815-16, 72 So.2d 211, 213 (1954) ).

¶ 19. In applying the plain-error doctrine to Mack's argument, we acknowledge the following:

In general, voir dire is presumed sufficient to ensure a fair and impartial jury. To overcome the presumption, a party must present evidence indicating that the jury was not fair and was partial and must show that that prejudice resulted from the circuit court's handling of voir dire. Voir dire is conducted under the supervision of the court, and a great deal must, of necessity, be left to [the court's] sound discretion.

Keller v. State , 138 So.3d 817, 843 (¶ 47) (Miss. 2014) (internal citations and quotation marks omitted). We further recognize that "[t]he linchpin is whether the venire members stated that they could be fair and impartial jurors if chosen." Hughes v. State , 983 So.2d 270, 284 (¶ 63) (Miss. 2008) (quoting Howell v. State , 860 So.2d 704, 720 (¶ 37) (Miss. 2003) ).

¶ 20. Mack first argues that the circuit court erred by sua sponte removing Juror 26 from the venire. During voir dire, Juror 26 stated that she knew both Mack and Scott because she lived in the same neighborhood as them. In response to Juror 26's disclosure, the circuit court judge said, "I'm going to go ahead and let you go, ma'am. Okay. There's no reason for you to stay around. Okay. Thank you though." As previously noted, the defense raised no objection to the circuit court's dismissal of Juror 26. Later, outside the presence of the venire, the circuit court stated, "It should be noted that Juror [26] was excused by agreement of the parties and the fact that she lived in the [same] neighborhood [as] and knew both the defendant and the victim." The record again reflects that the defense asserted no objection to the circuit court's statement regarding Juror 26's dismissal.

¶ 21. Mack also claims error regarding Jurors 19, 20, 21, and 28, who each indicated they knew potential witnesses for the State. Juror 20 stated that he was a casual acquaintance of Byrd, who collected evidence from the crime scene. Juror 19 stated that, years before, he had worked with Detective Scott, who investigated the shooting. Juror 21 also indicated that she was casually acquainted with Detective Scott, and Juror 28 stated that Detective Scott had attended the same high school as her children. Upon further questioning by the court, however, each of the four jurors stated that nothing about their relationships with the potential witnesses would affect their ability to be fair and impartial jurors in Mack's case.

¶ 22. Next, Mack claims error with regard to Jurors 15, 19, 23, and 28, who all indicated that either they or someone close to them had been the victim of an aggravated assault. Mack also assigns error to the circuit court's failure to dismiss Jurors 7, 20, 21, 25, 29, and 32, who all previously served on a jury that found a criminal defendant guilty. As the record reflects, however, Mack failed to raise an objection to these jurors remaining on the venire. Furthermore, all of the jurors informed the circuit court that their past experiences would not impact their ability to remain fair and impartial.

¶ 23. Upon review, we find that Mack not only waived his objections with regard to these jurors but also fails to present evidence to demonstrate plain error. As discussed, the undisputed record evidence establishes that Mack did not object either to the dismissal of Juror 26 or to the circuit court's statement that the parties agreed to her dismissal. As to his other arguments related to the makeup of the venire, Mack never objected to the potential jurors who remained on the venire. In addition, each potential juror affirmed that he or she could remain fair and impartial if selected for Mack's trial. We therefore find that Mack fails to meet his burden to demonstrate that a manifest miscarriage of justice occurred. See Carr , 190 So.3d at 7 (¶ 26). This assignment of error lacks merit.

II. Whether sufficient probable cause existed to issue Mack's arrest warrant.

¶ 24. For the first time on appeal, Mack challenges the validity of his arrest warrant. Mack alleges that Detective Scott's affidavit contained fraudulent information and that, without the fraudulent information, insufficient cause existed to issue his arrest warrant. Because Mack failed to raise this argument before the circuit court, he now asserts the issue under the plain-error doctrine. See Conerly v. State , 760 So.2d 737, 739-40 (¶ 5) (Miss. 2000).

¶ 25. In Conerly , the Mississippi Supreme Court stated:

To obtain an arrest warrant for a felony, either with or without a warrant, a police officer must have (1) reasonable cause to believe that a felony has been committed; and (2) reasonable cause to believe that the person proposed to be arrested is the one who committed [the felony]. Arrest warrants or search warrants shall be issued only by the judge after a judicial determination that probable cause exists based upon the affidavit or other evidence before the court. Furthermore, in Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court established a totality[-]of [-]the[-] circumstances standard for determining the existence of probable cause: The task of the issuing magistrate is simply to make a practical, common-sense decision based on all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information. [Mississippi] adopted the Gates totality[-]of[-]the [-] circumstances test in Lee v. State , 435 So.2d 674, 676 (Miss. 1983).
Moreover, this Court has defined probable cause as follows:
Probable cause is a practical, non-technical concept, based upon the conventional considerations of every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.
Perhaps more simply put, probable cause means more than a bare suspicion but less than evidence that would justify condemnation.

Conerly , 760 So.2d at 740-41 (¶¶ 7-8) (internal citations and quotation marks omitted).

¶ 26. In the present case, Mack relies on Conerly to argue that Detective Scott's affidavit failed to establish sufficient probable cause for the issuance of his arrest warrant. Like Mack, the defendant in Conerly first challenged the validity of his arrest warrant on appeal. Id. at 740 (¶ 5). The issuance of Conerly's arrest warrant was based solely on an affidavit that, in pertinent part, stated:

On September 23, 1997, Dornis Lenoir[ ] came home and discovered that [a] diamond ring and a car radio amplifier were missing from her residence ....
The house was locked[,] and the house was entered into from a window. [Lenoir ] was advised by some neighbors down the road that the person who was responsible for the missing items was Ricky Conerly.

Id. at (¶ 6) (emphasis added).

¶ 27. In his reply brief on appeal, Conerly argued the only basis for the issuance of his arrest warrant was Lenoir's affidavit, which was uncorroborated and contained "nothing but 'raw hearsay.' " Id. at 740 (¶¶ 5-6). Although acknowledging "that an arrest warrant may be based on hearsay[,]" the Conerly court explained that "[t]here must be underlying facts and circumstances [that] support the hearsay so as to allow a neutral and detached magistrate to find the existence of probable cause." Id. at (¶ 6) (citing Walker v. State , 192 So.2d 270, 273 (Miss. 1966) ). The Conerly court further stated that "[u]ncorroborated and unsubstantiated hearsay will simply not suffice." Id.

¶ 28. After reviewing the appellate record in Conerly , the supreme court found that Lenoir's affidavit failed to indicate that her neighbors witnessed the burglary, and the affidavit provided no factual data to support the neighbors' suspicions of the defendant. Id. As a result, the supreme court concluded that the affidavit contained nothing more than uncorroborated rumors and that, standing alone, the affidavit failed to establish sufficient probable cause to support the issuance of Conerly's arrest warrant. Id. at 740-41 (¶¶ 6, 8).

¶ 29. In the present case, Detective Scott's affidavit served as the basis for the issuance of Mack's arrest warrant. Detective Scott's affidavit stated that officers spoke to Scott, the shooting victim, who identified the Macks as his assailants. The affidavit also stated that "Detective Scott spoke with ... Randle." At trial, however, Randle denied that he ever spoke to a law-enforcement officer. Furthermore, Detective Scott stated at one point during his testimony that he never physically interviewed Randle and that Randle never gave a statement to police. Instead, Detective Scott explained that his affidavit was a summary of everything everyone had heard about the shooting.

¶ 30. As the record reflects, Detective Scott's affidavit was never actually admitted into evidence during Mack's trial. The defense used the contents of the affidavit to cross-examine Detective Scott and to attempt to impeach the State's witnesses. Then, following the conclusion of Detective Scott's testimony, the defense moved to admit the affidavit for identification purposes only, which the circuit court allowed.

¶ 31. As previously discussed, Mack argues on appeal that Detective Scott's affidavit contains statements incorrectly attributed to Randle. Without these statements, Mack contends the affidavit, like the one in Conerly , fails to establish probable cause. See Busick v. State , 906 So.2d 846, 854 (¶ 10) (Miss. Ct. App. 2005) ("If the remaining content provides insufficient support for a finding of probable cause, the arrest warrant must be voided and the fruits of the arrest excluded to the same extent as if probable cause was lacking on the face of the affidavit.").

¶ 32. In Conerly , the supreme court found that the victim's affidavit contained nothing but hearsay and rumors from neighbors who apparently neither witnessed the burglary nor provided factual support for their suspicions. Conerly , 760 So.2d at 740 (¶ 6). By contrast, even without the statements attributed to Randle, Detective Scott's affidavit contained factual information from Scott, who described his altercation with the Macks and positively identified Mack as his shooter. Although Mack contends that Scott's statements were unsubstantiated and uncorroborated, the supreme court explained in Conerly that even hearsay may support the issuance of an arrest warrant as long as the "underlying facts and circumstances ... support the hearsay so as to allow a neutral and detached magistrate to find the existence of probable cause." Id. (citing Walker , 192 So.2d at 273 ).

¶ 33. Reviewing Mack's argument on appeal, we find he waived extradition and raised no challenge before the circuit court as to the validity of his arrest warrant. We therefore conclude this issue is procedurally barred. See id. at (¶ 5). Even under plain-error review, we find that Mack's argument fails since Detective Scott's affidavit contained firsthand information supplied by Scott, the victim, who positively identified Mack as his shooter. Compare id. at 740-41 (¶¶ 6-8). Accordingly, this assignment of error lacks merit.

III. Whether the State elicited testimony that violated Mack's right against self-incrimination.

¶ 34. Mack next asserts that the State improperly cross-examined him about whether he gave a pretrial statement to police. According to Mack, the State's questioning violated his right against self-incrimination and prejudiced the jury against him. Mack further argues that the circuit court erred by not immediately declaring a mistrial.

¶ 35. We review the trial court's decision to grant or deny a mistrial for abuse of discretion. Crutcher v. State , 68 So.3d 724, 727-28 (¶ 5) (Miss. Ct. App. 2011). "The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case." Id. at 728 (¶ 5). "We have stated that mistrials should only be declared sua sponte under our 'manifest necessity' rule." Younger v. State , 931 So.2d 1289, 1291 (¶ 7) (Miss. 2006) (citing Spann v. State , 557 So.2d 530, 532 (Miss. 1990) ). "In determining whether a mistrial is warranted, the trial court possesses considerable discretion since the trial judge is in the best position to measure the prejudicial effect." Crutcher , 68 So.3d at 728 (¶ 5).

¶ 36. Both the federal and state constitutions provide a privilege against self-incrimination for witnesses in criminal proceedings. Harrell v. Duncan , 593 So.2d 1, 5 (Miss. 1991). "In a criminal prosecution [,] the privilege provides that an individual may not be required to take the witness stand at all." Id. (quoting In re Knapp , 536 So.2d 1330, 1334 (Miss. 1988) ). However, a witness may waive the privilege against self-incrimination if he voluntarily and knowingly "takes the stand and testifies as to the merits of the case." Id. Upon so doing, the witness "cannot then, on cross-examination, attempt to avoid further questions on the merits of the case by use of the privilege." Id. See also Autry v. State , 230 Miss. 421, 436, 92 So.2d 856, 862 (1957) ("Under this rule the accused[,] by taking the witness stand in his own behalf[,] waives the constitutional guaranty against compulsory self-incrimination not only as to matters about which he has given testimony in chief, but also concerning any matter pertinent to the issue on trial regardless of the extent of the direct examination, and [he] cannot then refuse to testify to any fact which would be competent evidence in the case if proved by any other witness." (citation omitted)).

¶ 37. In the present case, the circuit court advised Mack of his constitutional rights prior to the defense's presentation of its case-in-chief. Mack informed the circuit court that he understood his rights and that he wished to testify on his own behalf. During direct examination, Mack testified that he possessed an alibi for the time of Scott's shooting because he was out of town. According to Mack's testimony, he traveled to Jackson by bus the night before the shooting and then took another bus to Atlanta.

¶ 38. The State subsequently cross-examined Mack about his alibi, and the following exchange occurred:

State's Attorney: This story that you just said that [you weren't] in town [at the time of Scott's shooting], did you ever tell police this?
Mack: Oh, yes, sir, yes, sir. [Detective] Scott to be exact.
State's Attorney: So wait a minute. [Be]cause my file said you refused to give a statement.
Mack: [Detective Scott] probably did it off the record. But on a personal level, me and Detective [Scott,] we rode six hours from Atlanta, Georgia, in a car by ourselves.
State's Attorney: Did you[ ] refuse to give a statement?
Mack: Yes, sir, I did.
State's Attorney: All right. Let's talk for a second. That's important because what you just testified to that you have an alibi [and] that you [weren't] in town that day. Let's go over that because an alibi requires certain things[,] doesn't it? Let's see. First, you say you took a bus out of town.

The State then continued to question Mack about his alibi and why no one was present at his trial to verify his story. The exchange concluded as follows:

State's Attorney: All these witnesses and all this stuff [where] you say you were somewhere else[,] that's easy to verify. It's very easy to verify your story if it's true?
Mack: Right.
State's Attorney: Right?
Mack's Attorney: Objection, Your Honor. Object to this whole line of questioning because [the State is] commenting on his right to remain silent.
State's Attorney: No, we're talking about now at trial.
The Court: He's already testified so that's no longer a right.

¶ 39. Upon review, we find no abuse of discretion from the circuit court's refusal to sua sponte declare a mistrial. See Crutcher , 68 So.3d at 727-28 (¶ 5). As discussed, after the circuit court advised Mack of his constitutional rights, Mack testified on his own behalf. In so doing, Mack waived his privilege against self-incrimination since he voluntarily and knowingly chose to take the stand and testify. See Harrell , 593 So.2d at 5. In addition, we agree with the State's argument that the disputed line of questioning pursued during Mack's cross-examination was a comment on Mack's lack of a defense (or his assertion of a new defense at trial) rather than an impermissible comment on his right against self-incrimination. See Crutcher , 68 So.3d at 728 (¶ 6). Furthermore, as the State asserts in its appellate brief, the line of questioning at issue "was clearly not a comment upon Mack's failure to take the stand [since] Mack was testifying." Thus, we find no merit to Mack's claims that the State's questioning violated his right against self-incrimination or that the circuit court erred by not declaring a mistrial.

IV. Whether the circuit court improperly instructed the jury.

¶ 40. Mack next contends that the circuit court improperly instructed the jury by: (1) granting the State's proposed jury instruction S-1 and refusing the defense's proposed jury instruction D-1; (2) granting the State's proposed jury instruction S-4; and (3) granting the State's proposed jury instruction S-5.

¶ 41. We review the circuit court's grant or refusal of proposed jury instructions for an abuse of discretion. Quinn v. State , 191 So.3d 1227, 1231-32 (¶ 18) (Miss. 2016). Although "[a] defendant is entitled to have jury instructions given which present his theory of the case[,] this entitlement is limited in that the court may refuse an instruction [that] incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Id. at 1232 (¶ 18). We review the jury instructions as a whole and will find no reversible error if the instructions fairly announce the law of the case and create no injustice. Id.

a. Proposed Jury Instructions S-1 and D-1

¶ 42. Mack first asserts that the circuit court abused its discretion by granting proposed jury instruction S-1 in lieu of proposed jury instruction D-1. The State's proposed instruction S-1 stated:

The [c]ourt instructs the [j]ury that [Mack] has been charged with the crime of [a]ggravated [a]ssault. If you find from the evidence beyond a reasonable doubt that:
1. [Mack], on or about January 25, 2013, in Forrest County, Mississippi;
2. [K]nowingly caused bodily injury to ... Scott with a deadly weapon, to wit: [a] gun, by shooting ... Scott with a gun; and
3. [T]hat such behavior was not done in necessary self[-]defense, accident, or misfortune;
then you shall find [Mack] guilty of [a]ggravated [a]ssault. If the State has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find [Mack] not guilty of [a]ggravated [a]ssault.

¶ 43. By contrast, the defense's proposed instruction D-1 stated:

[Mack] has been charged by way of indictment with unlawfully, feloniously, willfully[,] and knowingly causing serious bodily injury to ... Scott[ ] with a deadly weapon[ ] by striking him and shooting him[.] You must find ... Mack not guilty unless the [S]tate proves beyond a reasonable doubt that he:
(1) [A]ttempt[ed] to cause or purposely or knowingly cause[d]
(2) [B]odily injury to ... Scott
(3) [W]ith a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 44. During the jury-instruction conference, the defense objected to proposed instruction S-1, arguing that the proposed instruction followed the language of Mack's indictment rather than section 97-3-7(2)(b). The defense requested that the circuit court refuse the State's proposed instruction and instead grant the defense's proposed instruction D-1, which the defense asserted followed the statute. Although the State agreed that proposed instruction D-1 mirrored the relevant statutory section on aggravated assault, it argued that, unlike the State's own proposed jury instruction, the defense's proposed instruction lacked the facts relevant to Mack's case. The State also contended that, if the court granted instruction S-1, then proposed instruction D-1 would be repetitive. After considering the parties' arguments, the circuit court found that the State's proposed instruction S-1 constituted a proper statement of the law. As a result, the circuit court granted S-1 and refused D-1.

¶ 45. On appeal, Mack reasserts his objection that instruction S-1 deviated from the language of section 97-3-7(2)(b). Mack contends that instruction S-1 improperly added that the type of deadly weapon used in the case was "a gun." According to Mack, no evidence connected him to the use of a gun except Scott's testimony, which Mack characterizes as "suspect." As a result, Mack argues that the circuit court abused its discretion by granting instruction S-1 and refusing instruction D-1.

¶ 46. In Boyd v. State , 47 So.3d 121, 123 (¶ 9) (Miss. 2010), the supreme court addressed the defendant's argument "that the trial court erred in failing to instruct the jury that, in an aggravated-assault prosecution, [the jury] must find that the instrument used by the defendant was a deadly weapon." Although the contested jury instruction provided that the defendant had used "a knife" to injure the victim, the instruction omitted that the knife was "a deadly weapon." Id. at 124 (¶ 12).

¶ 47. In discussing the defendant's argument, the supreme court found no error with the instruction's identification of the weapon used as "a knife." Id. at 124-25 (¶¶ 13-14). Instead, the supreme court focused on the omission of the phrase "with a deadly weapon or other means likely to produce death or serious bodily harm[,]" which the supreme court explained was "an essential element of the [aggravated-assault] statute." Id. at 124 (¶ 13). The supreme court also acknowledged that Mississippi precedent does not "require[ ] that an instruction mirror the exact language of a criminal statute" but rather that the jury "be correctly and fully instructed regarding each element of the offense charged." Id. at 124-25 (¶ 13).

¶ 48. Upon review, we find no abuse of discretion in the circuit court's grant of proposed instruction S-1 and its refusal of proposed instruction D-1. Scott testified that Mack shot him with a gun. Although Mack disputes Scott's testimony, the credibility and weight given to Scott's testimony were matters for the jury to decide. See Roop v. S. Pharm. Corp. , 188 So.3d 1179, 1186 (¶ 23) (Miss. 2016). A review of the record and relevant caselaw reflects that instruction S-1 provided the essential elements of aggravated assault and possessed a foundation in the evidence presented at Mack's trial. As a result, the circuit court properly granted S-1 as a correct statement of law. Furthermore, the circuit court properly refused instruction D-1 since it was fairly covered by instruction S-1 and would have been repetitive. See Donelson v. State , 158 So.3d 1154, 1165 (¶ 56) (Miss. Ct. App. 2014). Accordingly, we find this assignment of error lacks merit.

b. Proposed Jury Instruction S-4

¶ 49. Mack next argues that the circuit court abused its discretion by granting the State's proposed jury instruction S-4, which stated:

The [c]ourt instructs the [j]ury that it is a question of fact for you to determine whether the gun claimed to have been used by the Defendant was a deadly weapon in the manner it was used in this case.
A deadly weapon may be defined as any object, article, or means which, when used as a weapon[,] is, under the existing circumstances, reasonably capable or likely to produce death or serious bodily harm to a human being upon whom the object, article, or means is used as a weapon.

On appeal, Mack reasserts his trial argument that instruction S-4 was both repetitive and unnecessary since the circuit court granted instruction S-1. According to Mack, the jury did not need a second instruction to explain to them the meaning of "a deadly weapon."

¶ 50. In Williams v. State , 134 So.3d 732, 733 (¶ 1) (Miss. 2014), the defendant appealed his armed-robbery conviction and asserted, among other issues, that the trial court erred by failing to instruct the jury on the legal definition of a deadly weapon. The instruction that Williams argued should have been granted was almost identical to the one Mack now complains of in the present case. See id. at 737 (¶ 18). In addressing Williams's argument that the trial court should have instructed the jury on the legal definition of a deadly weapon, the supreme court acknowledged that it had upheld such an instruction in previous cases and that such an "instruction better informs the jury that the question as to whether a particular instrument constitutes a deadly weapon lies with the jury." Id. at (¶¶ 18-19). Because Mississippi precedent clearly demonstrates that the supreme court has repeatedly upheld the grant of instructions that legally define a deadly weapon, we find no abuse of discretion by the circuit court's grant of proposed jury instruction S-4. As a result, we find Mack's argument lacks merit.

c. Proposed Jury Instruction S-5

¶ 51. Mack also claims that the circuit court abused its discretion by granting the State's proposed jury instruction S-5, which provided:

A person charged with aggravated assault does not have to possess ill-will toward his victim(s). A person charged with aggravated assault does not even have to know the identity of a specific individual to commit an aggravated assault upon that person.
In this trial this [r]ule of [l]aw means that [Mack] did not have to possess ill-will toward ... Scott. It also means that [Mack] did not even have to know or recognize ... Scott ... to commit an aggravated assault upon him.

¶ 52. At the jury-instruction conference, the defense objected to instruction S-5 as an improper reference to Mack's state of mind. According to Mack's attorney, the instruction lacked a foundation in the evidence because no testimony had been presented as to Mack's state of mind and whether he possessed an ill will toward Scott. On appeal, Mack further asserts that instruction S-5 was unnecessary and repetitious and served to bias the jury against him.

¶ 53. We find no abuse of discretion by the circuit court's grant of proposed instruction S-5. In Blanks v. State , 542 So.2d 222, 226 (Miss. 1989), the supreme court rejected the defendant's argument that ignorance of the assault victim's identity prevented the defendant from forming the intent necessary to commit the crime. The supreme court found that, even in the defendant's version of events, he clearly knew he was shooting at another human being. Id. According to the Blanks court, a person "does not have to possess ill-will toward or even know the identity of a specific individual to commit an aggravated assault on that person." Id. (citing Davis v. State , 476 So.2d 608, 610 (Miss. 1985) ). Based on Mississippi precedent, as well as the facts in the record of this case, we find jury instruction S-5 was a correct statement of the law. We therefore find this argument lacks merit.

V. Whether the circuit court erred by denying Mack's motion for a JNOV.

¶ 54. Mack also claims the circuit court erred by denying his motion for a JNOV. A motion for a JNOV challenges the legal sufficiency of the evidence, and this Court reviews the trial court's denial of such a motion de novo. See Kirk v. State , 160 So.3d 685, 695 (¶ 24) (Miss. 2015).

¶ 55. In Kirk , the supreme court explained:

In considering the legal sufficiency of the evidence, [appellate courts] will affirm the denial of a motion for [a] JNOV if there is substantial evidence to support the verdict. Substantial evidence is information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions. [The appellate court] considers whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction. This Court has held:
Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.
However,
if a review of the evidence reveals that it is of such quality and weight that, having in mind the beyond[-]a[-]reasonable[-]doubt [-]burden[-]of[-]proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.
The evidence is viewed in the light most favorable to the verdict.

Id. at 695-96 (¶ 25) (internal citations and quotation marks omitted).

¶ 56. At Mack's trial, the State presented evidence to show that Mack shot Scott on January 25, 2013, in Forrest County. Scott positively identified Mack as his shooter and testified that he knew Mack well. The jury also heard Randle testify that he witnessed the Macks driving around the neighborhood and then saw them pursuing Scott in their vehicle. In addition, Randle testified that word had spread around the neighborhood that the Macks were after Scott. Officer Breland also testified that, upon arriving at the police station after the shooting, he saw Scott receiving medical attention for his wounds and observed the shattered windows of Scott's truck. Further trial testimony reflected that police recovered several shell casings from the street in front of Scott's grandparents' home. Although Mack disputes on appeal the credibility of Scott's testimony, as previously discussed, the weight and credibility of witness testimony are questions for the jury to determine. See Roop , 188 So.3d at 1186 (¶ 23).

¶ 57. Viewing the evidence in the light most favorable to the verdict, we find that substantial evidence supported Mack's verdict. See Kirk , 160 So.3d at 695-96 (¶ 25). We therefore find that a rational juror could have found beyond a reasonable doubt that Mack was guilty. See id. Accordingly, we find no merit to Mack's assertion that the circuit court erred by denying his motion for a JNOV.

VI. Whether the jury's verdict was against the overwhelming weight of the evidence.

¶ 58. Finally, Mack argues that the circuit court erroneously denied his motion for a new trial because the jury's verdict was against the overwhelming weight of the evidence.

¶ 59. As Mississippi caselaw provides:

In reviewing the denial of a motion for a new trial based on an objection to the weight of the evidence, [the appellate] [c]ourt will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. [W]hile the court sits as a thirteenth juror, the motion for [a] new trial is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. As with a sufficiency analysis, when considering the weight of the evidence, the evidence should be weighed in the light most favorable to the verdict.

Kirk , 160 So.3d at 697 (¶ 31) (internal citations and quotation marks omitted).

¶ 60. Viewing the evidence in the light most favorable to the verdict, we find "the evidence does not preponderate ... so heavily against the verdict that to allow it to stand would sanction an unconscionable injustice." Id. at (¶ 33). As a result, we find no error in the circuit court's denial of Mack's new-trial motion. This argument lacks merit.

¶ 61. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SEVENTEEN YEARS TO SERVE, THREE YEARS SUSPENDED, AND THREE YEARS OF POSTRELEASE SUPERVISION, AND TO PAY A FINE OF $2,500 AND AN ASSESSMENT OF $100 TO THE MISSISSIPPI CRIME VICTIMS' COMPENSATION PROGRAM, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      See also Jackson v. State , 70 So.3d 1137, 1139 (¶ 10) (Miss. Ct. App. 2011) (aggravated-assault jury instruction provided that the defendant caused bodily injury to the victim by shooting him "with a deadly weapon, to-wit: a gun"); McKinley v. State , 873 So.2d 1052, 1053-54 (¶ 8) (Miss. Ct. App. 2004) (aggravated-assault jury instruction provided that the defendant caused bodily injury to his victims "with a deadly weapon, to-wit: a pistol").


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT:

license: Public Domain

text:
    Russell GAILLARD, Appellant v. REA BROTHERS' AUCTIONS, INC., Appellee
    NO. 2016-CA-00464-COA
    Court of Appeals of Mississippi.
    June 20, 2017 Rehearing Denied November 14, 2017 Certiorari Denied March 8, 2018
    ATTORNEYS FOR APPELLANT: MARC E. BRAND, JAMES W. NOBLES JR., JOHN DAVID SANFORD BRETT, RAY KOEHN.
    ATTORNEYS FOR APPELLEE: JOE S. DEATON III, MICHAEL CHAD MOORE.
    EN BANC.
   CARLTON, J., FOR THE COURT:

¶ 1. Pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure, the Rankin County Circuit Court dismissed with prejudice Russell Gaillard's complaint against Rea Brothers' Auctions Inc. ("Rea Brothers") due to Gaillard's failure to prosecute. Gaillard appeals the dismissal and argues the circuit court abused its discretion for the following reasons: (1) the record fails to reflect a clear delay attributable to him; (2) even if he contributed to a delay, the circuit court should have applied a lesser sanction; and (3) the record fails to reflect any aggravating factors.

¶ 2. Finding no abuse of discretion, we affirm the circuit court's dismissal with prejudice of Gaillard's complaint for failure to prosecute.

FACTS

¶ 3. On March 16, 2009, Gaillard filed a complaint for damages against Rea Brothers in the County Court of Rankin County. Gaillard alleged that, while attending an auction on Rea Brothers' premises on September 26, 2006, a vehicle driven by a Rea Brothers' employee struck and injured him. The trial docket indicates that, for the remainder of 2009, Rea Brothers alone filed documents relevant to Gaillard's cause of action. In April 2009, Rea Brothers filed its answer and affirmative defenses to Gaillard's complaint and propounded discovery requests to Gaillard. Then, on November 19, 2009, Rea Brothers filed a motion to compel Gaillard's discovery responses. Attached to its motion to compel, Rea Brothers included a copy of correspondence between the parties' attorneys, which indicated that Gaillard had so far failed to respond to Rea Brothers' April 2009 discovery requests. On December 4, 2009, the county court entered an agreed order granting Rea Brothers' motion to compel Gaillard's discovery responses.

¶ 4. In January 2010, Gaillard responded to Rea Brothers' discovery requests. He then propounded his own discovery requests in February 2010 and noticed the deposition of Kenny Rea in July 2010. Almost a year later, on August 16, 2011, Gaillard filed a motion to amend his complaint and to transfer the case to circuit court. The county court granted Gaillard's motion on December 16, 2011.

¶ 5. On January 6, 2012, the circuit court entered an agreed scheduling order. On February 1, 2012, Gaillard designated his experts. He then filed a notice of deposition for his treating physician, Dr. Stanton Ward, on June 5, 2012. On July 19, 2012, Gaillard filed a response to Rea Brothers' motion to compel him to submit to an independent medical exam.

¶ 6. Pursuant to a January 2013 order by the circuit court, the parties unsuccessfully participated in a mediation conference on April 4, 2013. Rea Brothers filed a supplemental designation of an expert witness on May 1, 2013. Rea Brothers then filed a motion to strike and/or exclude the testimony of Gaillard's expert, Dr. Ward, on August 2, 2013. On November 22, 2013, Gaillard filed a response to the motion to strike and/or exclude Dr. Ward's opinions.

¶ 7. Over a year later, on January 16, 2015, Rea Brothers filed its motion to dismiss Gaillard's complaint pursuant to Rule 41(b) for failure to prosecute. On the same day, Gaillard filed a motion to set the case for trial. Following two hearings in August 2015, the circuit court entered orders disposing of the parties' motions. By its August 11, 2015 order, the circuit court denied Rea Brothers' motion to strike and/or exclude Dr. Ward's testimony. However, by a subsequent order entered August 13, 2015, the circuit court granted Rea Brothers' motion to dismiss Gaillard's complaint for failure to prosecute. Following the circuit court's dismissal with prejudice of his complaint, Gaillard filed an unsuccessful motion to reconsider. Aggrieved by the circuit court's judgment, Gaillard appeals.

STANDARD OF REVIEW

¶ 8. A trial court may dismiss an action due to the plaintiff's failure to prosecute. M.R.C.P. 41(b). However, "[b]ecause the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is employed reluctantly." Holder , 54 So.3d at 196 (¶ 16) (quoting Miss. Dep't of Human Servs. v. Guidry , 830 So.2d 628, 632 (¶ 13) (Miss. 2002) ). This Court reviews a Rule 41(b) dismissal for abuse of discretion, and we affirm when the following factors exist: "(1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by [an appellate court] that lesser sanctions would not serve the interests of justice. Additional 'aggravating factors' or actual prejudice may bolster the case for dismissal, but are not requirements." Id. at 196-97 (¶¶ 16, 18).

DISCUSSION

¶ 9. As previously stated, Gaillard argues on appeal that the circuit court erroneously dismissed his complaint for the following reasons: (1) the record fails to reflect a clear delay attributable to him; (2) even if he contributed to a delay, the circuit court should have applied a lesser sanction; and (3) the record fails to reflect any aggravating factors. See id. at 197 (¶ 18).

¶ 10. While admitting that a delay occurred in this case, Gaillard contends that (1) he was not solely responsible for the delay, (2) the circuit court erroneously attributed the delay to him alone, and (3) the length of the delay was short when compared to other cases where the appellate courts have affirmed a Rule 41(b) dismissal. Gaillard asserts that both parties contributed to the delay by engaging in discovery throughout the proceedings, agreeing to the amended scheduling orders, and participating in mediation. Gaillard further argues that, after mediation proved unsuccessful, Rea Brothers extended the delay by failing to notice for hearing its motion to exclude and/or strike Dr. Ward's testimony. In addition, Gaillard asserts that the circuit court never ruled on Rea Brothers' motion to exclude Dr. Ward's testimony and that the court erroneously counted against him Rea Brothers' delay in bringing the motion. Moreover, Gaillard claims he was the one who finally acted to end the delay by filing his motion to set the case for trial.

¶ 11. Relevant to the issue presented in this case, the Mississippi Supreme Court has stated:

In analyzing the dismissal of a case pursuant to Rule 41(b), the [appellate c]ourt first looks to see if there is a record of dilatory or contumacious conduct by the plaintiff. Then, the [appellate c]ourt determines if lesser sanctions other than dismissal would better serve the interests of justice. The [appellate c]ourt also may consider aggravating factors or actual prejudice to the defendant, and the presence of the factors or prejudice, though not necessary, may strengthen a case for dismissal.

State ex rel. Hood v. Louisville Tire Ctr. Inc. , 204 So.3d 1250, 1254 (¶ 9) (Miss. 2016) (internal citations, quotation marks, and footnote omitted).

¶ 12. In the present case, the circuit court held an August 4, 2015 hearing on Rea Brothers' motion to strike and/or exclude Dr. Ward's testimony and its motion to dismiss Gaillard's complaint. During the hearing, Gaillard's attorney agreed with the court that, except for the disposition of Rea Brothers' motion to strike and/or exclude Dr. Ward's testimony, the case had been ready for trial for over two years since June 2013. Gaillard's attorney also agreed with the court's assessment that nothing had prevented the plaintiff (Gaillard) from taking further action to prosecute the proceedings, such as filing a motion to set the matter for trial.

¶ 13. At a second hearing on August 11, 2015, the circuit court entered a bench ruling granting Rea Brothers' motion to dismiss for failure to prosecute. In so doing, the court found that, after Gaillard filed his complaint in March 2009, he took no other affirmative action of record that year to prosecute the case. The circuit court also noted that, in December 2009, the county court entered an agreed order granting Rea Brothers' motion to compel Gaillard's discovery responses. As a result, the circuit court determined "there was delay during 2009 to the extent that a motion to compel was granted."

¶ 14. The circuit court next acknowledged that, in 2010, Gaillard filed his responses to Rea Brothers' discovery requests, served his own discovery requests on Rea Brothers, and noticed his intent to take a deposition. However, even assuming that the scheduled deposition took place in July 2010, the court found the record contained "no other affirmative act of [Gaillard] advancing this case ... after July ... 2010." In fact, the circuit court concluded that Gaillard took no further affirmative action in the case until over a year later in August 2011, when he filed a motion to amend the complaint and transfer the matter to circuit court. As a result, the circuit court attributed a year-long delay to Gaillard.

¶ 15. The circuit court then found that, the following year, Gaillard designated his experts in February 2012 and noticed his intent in June 2012 to depose Dr. Ward. Although the parties thereafter agreed to several amended scheduling orders during 2012, and although Gaillard filed a responsive pleading to one of Rea Brothers' motions, the circuit court determined that the February and June 2012 filings were the only affirmative steps Gaillard took during 2012 to move the case forward.

¶ 16. As for 2013, the circuit court noted that the parties unsuccessfully attempted mediation. After an April 2013 letter informing the court that mediation had failed, however, the circuit court found that the record contained no other evidence of an affirmative act by Gaillard during 2013, although Gaillard did file a November 2013 response to Rea Brothers' motion to strike and/or exclude Dr. Ward's testimony. The circuit court further determined that no evidence existed to show that Gaillard took any affirmative action to prosecute the case in 2014. In January 2015, Rea Brothers filed its motion to dismiss Gaillard's complaint.

¶ 17. Based on its review of the record, the circuit court stated during the August 4, 2015 hearing that, between the time mediation failed in April 2013 and Rea Brothers filed its motion to dismiss in January 2015, almost two additional years passed without Gaillard taking any affirmative action to advance prosecution of the case. The court further stated during the August 4, 2015 hearing that, after reading caselaw, it found the argument by Gaillard's attorney that he was "waiting to find out whether ... [Rea Brothers] was going to call up [its] motion to strike" to be an insufficient and unreasonable excuse for the nearly two-year delay.

¶ 18. As Mississippi caselaw establishes, "[a] showing of delay or contumacious conduct is sufficient for a Rule 41(b) dismissal when a lesser sanction would not serve the best interests of justice." Holder , 54 So.3d at 198 (¶ 20) (citation omitted). The record here reflects sufficient evidence to support the circuit court's finding that Gaillard engaged in "dilatory conduct" that warranted the Rule 41(b) dismissal of his complaint rather than the application of a lesser sanction. See id. at 197 (¶ 17) ; see also State ex rel. Hood , 204 So.3d at 1255-56 (¶ 15) (finding no abuse of discretion from the chancellor's determination that lesser sanctions were insufficient where the chancellor heard oral argument on the issue and considered lesser sanctions in making his decision).

¶ 19. Even though the parties agreed to multiple amended scheduling orders and participated in mediation, the record clearly reflects several long periods of time between the March 2009 filing of the complaint and the January 2015 dismissal of the case where Gaillard took little or no affirmative action to advance the prosecution of the matter. Furthermore, the record demonstrates that Gaillard not only delayed responding to Rea Brothers' discovery requests to the extent that the county court granted Rea Brothers' motion to compel, but also that much of Gaillard's activity was reactionary-i.e., in response to motions filed by Rea Brothers. See Estate of Paulk v. Lott , No. 2015-CA-01144-COA, 217 So.3d 747, 750-51, 2017 WL 413079, at *3 (Miss. Ct. App. Jan. 31, 2017) (recognizing that a plaintiff's failure to timely respond to discovery requests and his reactionary activity can support a clear record of delay). We therefore find no abuse of discretion from the circuit court's dismissal of Gaillard's complaint for failure to prosecute. See Holder , 54 So.3d at 196 (¶ 16).

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

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

      See Holder v. Orange Grove Med. Specialties P.A. , 54 So.3d 192, 196 (¶ 16) (Miss. 2010) (applying an abuse-of-discretion standard of review to a Rule 41(b) dismissal).


author: BARNES, J., FOR THE COURT:

text:
    MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Appellant v. Ben PORTER, Appellee
    NO. 2016-CA-00383-COA
    Court of Appeals of Mississippi.
    June 27, 2017 Rehearing Denied October 31, 2017 Certiorari Denied February 15, 2018
    LEWIS CLARK HUNTER DEANNA LYNNE GRAVES, ATTORNEYS FOR APPELLANT.
    PAUL ANDERSON KOERBER, ATTORNEY FOR APPELLEE.
    BEFORE IRVING, P.J., BARNES, CARLTON AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. The Jefferson County Chancery Court found that Ben Porter, a Mississippi resident, was not obligated to pay child support for his daughter, an Illinois resident, because she had reached the age of majority under Illinois law. However, under the choice-of-law provisions of the Uniform Interstate Family Support Act (UIFSA), Mississippi law applies to this child-support action, as the Mississippi court was the first court to issue a support order. At the time this action was commenced, Porter's daughter was twenty years old-a minor under Mississippi law. Because the chancellor erred in applying Illinois's age of majority (nineteen) rather than applicable Mississippi law, we reverse and remand for the imposition of Mississippi law.

FACTS AND PROCEDURAL HISTORY

¶ 2. S.M. was born in April 1995 to Gail Morris in Chicago, Illinois. No father is named on S.M.'s birth certificate. In October 1995, the State of Illinois brought a paternity action to establish Porter as S.M.'s father. Due to inactivity in the case and other deficiencies, the case was dismissed on April 5, 2006. Sometime prior to December 2011, Porter moved to Jefferson County, Mississippi. Morris and S.M. remained in Chicago.

¶ 3. In December 2011, the Illinois Department of Healthcare and Family Services (IDHFS) requested the Mississippi Department of Human Services (MDHS) to petition the Jefferson County Chancery Court to establish paternity of S.M. IDHFS requested that MDHS seek an order of ongoing child support and retroactive support. Porter submitted to genetic testing, which indicated a greater than 99.9% probability that Porter was S.M.'s father.

¶ 4. On April 17, 2012, MDHS filed a petition for child support in the Jefferson County Chancery Court. A Mississippi Rule of Civil Procedure 81 summons and a complaint were served on Porter on April 30, 2012. Porter filed his answer and defenses on June 11, 2012. A hearing was initially scheduled for June 26, 2012, but was continued multiple times. On the scheduled October 23, 2012 hearing date, Porter's attorney moved to withdraw as counsel. The motion was granted, but no continuance was ordered. Process was lost. See M.R.C.P. 81(d)(5).

¶ 5. MDHS refiled its complaint on April 6, 2015. A Rule 81 summons was issued for Porter to appear on June 23, 2015. Porter appeared on that date, and a judgment of paternity was entered. The June 23, 2015 judgment ordered Porter to pay $252 per month in child support until S.M. turned twenty-one-a total of ten months of child support-unless S.M. was emancipated before turning twenty-one. Specifically, the judgment states: "The Defendant is required to pay $252.00 beginning 7/1/2015 for the support of the minor child, and shall continue each month thereafter until the child reaches the age of 21, marries, or otherwise becomes emancipated." Porter moved to set aside the judgment, arguing that Illinois's age of majority (nineteen) applied, rather than Mississippi's age of majority (twenty-one), and that he had no obligation to support S.M. since she was no longer a minor under Illinois law. After a hearing, the chancellor agreed that Illinois's age of majority applied. On February 29, 2016, the chancellor ordered that the June 23, 2015 child-support order be set aside. Porter was not ordered to pay any support.

¶ 6. MDHS appeals, arguing that under the choice-of-law provisions of the UIFSA, the chancellor was required to apply Mississippi law, including Mississippi's twenty-one-year age of majority. Porter asserts the Jefferson County Chancery Court lacked jurisdiction over this matter entirely, and, alternatively, that the chancellor's decision applying Illinois's age of majority was correct.

DISCUSSION

I. Whether the chancery court had subject-matter jurisdiction.

¶ 7. While Porter alternatively argues that the chancellor's decision should be affirmed, he first asserts the chancellor lacked subject-matter jurisdiction over MDHS's complaint. As Porter's argument regarding lack of subject-matter jurisdiction, if correct, would be dispositive of this appeal, we address it first.

¶ 8. "Jurisdiction is a question of law, which [we] review de novo." Derr Plantation Inc. v. Swarek , 14 So.3d 711, 715 (¶ 8) (Miss. 2009). "[T]he factual findings underpinning the jurisdiction question are reviewed under the familiar substantial-evidence and abuse-of-discretion standards." Hamilton v. Young , 213 So.3d 69, 74 (¶ 11) (Miss. 2017). "A state court's assertion of jurisdiction exposes defendants to the State's coercive power, and is therefore subject to review for compatibility with the Fourteenth Amendment's Due Process Clause." Goodyear Dunlop Tires Operations S.A. v. Brown , 564 U.S. 915, 918, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (citing Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). Personal jurisdiction is not disputed, as Porter lived in Jefferson County and was served with process there. Int'l Shoe , 326 U.S. at 316, 66 S.Ct. 154. Rather, Porter challenges the chancery court's subject-matter jurisdiction. The issue of subject-matter jurisdiction can be raised at any time in the proceedings, even on appeal. Pierce v. Pierce , 132 So.3d 553, 560 (¶ 14) (Miss. 2014).

¶ 9. "To determine whether a court has subject[-]matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought." Ram-Kabir of America LLC v. S.C. Anderson Grp. Int'l , 199 So.3d 1240, 1241 (¶ 4) (Miss. 2016) (quoting RAS Family Partners v. Onnam Biloxi LLC , 968 So.2d 926, 928 (¶ 11) (Miss. 2007) ). "Jurisdiction is decided based on the existing facts at the time the action is commenced." Id. (quoting Bronk v. Hobson , 152 So.3d 1130, 1132 (¶ 3) (Miss. 2014) ).

¶ 10. When parties to a child-support action reside in different states, the jurisdictional provisions of UIFSA control. Deborah H. Bell, Bell on Mississippi Family Law § 18.08 (2005). Both Mississippi and Illinois have adopted substantively identical forms of UIFSA. See Miss. Code Ann. §§ 93-25-101 to -903 (Supp. 2016); 750 Ill. Comp. Stat. 22/100 - 22/999. "The purpose of the UIFSA is to unify state laws governing the establishment, enforcement, and modification of child[-]support orders." Gowdey v. Gowdey , 825 So.2d 67, 70 (¶ 11) (Miss. Ct. App. 2002) (citing 23 Am. Jur. 2d Desertion & Nonsupport § 73 (2002) ). "The UIFSA does not create a duty of support; it does, however, provide the procedural framework for enforcing one state's support order in another jurisdiction." Id. (citing Thrift v. Thrift , 760 So.2d 732 (¶ 15) (Miss. 2000) ). It "was created to ensure the uniformity of decisions concerning the issue of child support." Id.

¶ 11. UIFSA's purpose is explained in Bell on Mississippi Family Law , section 18.08, as follows:

[UIFSA] provides jurisdictional and procedural rules governing actions to recover spousal or child support. These rules apply whether support is sought in a suit for divorce, an independent action for child support, or a paternity action. The Act governs initial orders for support as well as petitions to modify support. UIFSA was designed to facilitate interstate establishment and enforcement of support and paternity orders. The Act creates a two-state procedure that allows a petitioner to proceed in another state by filing a petition in his or her home state. In addition, the Act sets out the procedure for registering an order in another state. To reduce interstate conflicts over modification jurisdiction, the Act creates a uniform system for modification, recognizing continuing exclusive jurisdiction in the issuing court while any party or child remains in the issuing state.

¶ 12. In applying UIFSA's provisions to this matter, we must first understand certain terms defined by its provisions. First, a "tribunal" under UIFSA is "a court, administrative agency or quasi-judicial entity authorized to establish, enforce or modify support orders or to determine parentage of a child." Miss. Code Ann. § 93-25-102(29). "The chancery courts, circuit and county courts, and tribal courts are the tribunals of this state." Miss. Code Ann. § 93-25-103(a). The "responding tribunal" is "the authorized tribunal in a responding state or foreign country." Miss. Code Ann. § 93-25-102(24). The "responding state" is the "state in which a complaint or comparable pleading for support or to determine parentage of a child is filed or to which a complaint or comparable pleading is forwarded for filing from another state or foreign country." Miss. Code Ann. § 93-25-102(23). The "issuing tribunal" is "the tribunal of a state or foreign country that issues a support order or a judgment determining parentage of a child." Miss. Code Ann. § 93-25-102(14). Here, IDHFS, Division of Child Support, contacted MDHS and requested that it file a complaint against Porter. Thus, Mississippi is the responding state, and the responding tribunal is the Jefferson County Chancery Court. The Jefferson County Chancery Court is also the issuing tribunal, as it was the first to issue a support order or determination of paternity.

¶ 13. With the understanding that Mississippi is the responding state and the Jefferson County Chancery Court is the responding tribunal, we look to section 93-25-303 to determine whether the Jefferson County Chancery Court had subject-matter jurisdiction. Section 93-25-303 states that the "responding tribunal" has the authority to "exercise all powers and provide all remedies available" and "[d]etermine the duty of support and the amount payable[.]" On its face, the complaint sought an initial determination of child support, which is a subject matter encompassed by UIFSA. Thus, the chancery court was an appropriate tribunal under UIFSA, and the chancery court had subject-matter jurisdiction over this matter.

1. Lack of Prior Support Order

¶ 14. Porter argues that the Jefferson County Chancery Court cannot be a "responding tribunal" under section 93-25-303, because there is no "initiating tribunal" or enforceable support order issued by another state. An "initiating tribunal" is "the tribunal of a state or foreign country from which a complaint or comparable pleading is forwarded or in which a complaint or comparable pleading is filed for forwarding to another state or foreign country." Miss. Code Ann. § 93-25-102(11).

¶ 15. UIFSA does not require the existence of an initiating tribunal or registered support order to bring an action under its provisions. As stated by the National Conference of Commissioners on Uniform State Laws, which promulgated UIFSA, in the official comment to section 307(a): "The focus ... is on providing services to a petitioner. Either the obligee or the obligor may request services, and that request may be in the context of the establishment of an initial child-support order ...." (Emphasis added). Further, the official comment to section 102, UIFSA's definition section, provides:

The definitions in subsections (23) "responding state," and (24) "responding tribunal," accommodate the direct filing of a petition under UIFSA without the intervention of an initiating tribunal. Both definitions acknowledge the possibility that there may be a responding state and a responding tribunal in a situation where there is no initiating tribunal. Under current practice, the initial application for services most often will be generated by a support enforcement agency ... and sent to the appropriate support enforcement agency in the responding state.

(Emphasis added). Also, the official comment to section 301 states:

Although the filing of a petition in an initiating tribunal to be forwarded to a responding tribunal is still recognized as an available procedure, the direct filing procedure has proven to be one of the most significant improvements in efficient interstate case management. The promulgation and use of the federally mandated, or substantially conforming, forms, Section 311(b), further serves to eliminate any role for the initiating tribunal.

(Emphasis added).

¶ 16. Section 93-25-401(a)(1) specifically provides for the establishment of an initial support order by the responding tribunal. This section states: "If a support order entitled to recognition under this act has not been issued, a responding tribunal of this state with personal jurisdiction over the parties may issue a support order if ... the individual seeking the order resides outside this state[.]" Further, section 93-25-402 provides for the determination of parentage in the responding tribunal: "A tribunal of this state authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought under this act or a law or procedure substantially similar to this act." Section 93-25-305(b)(1) also gives a responding tribunal of this state the authority to "[e]stablish ... a support order[.]" Thus, Porter's argument that there must be an order of support from an initiating tribunal in another state is without merit.

¶ 17. Porter also asserts the initial Illinois action was dismissed "with prejudice," which would preclude further action to establish child support, and that Illinois retains jurisdiction because the initial action was filed there. The record of the Illinois proceedings initiated in 1995 is not part of the record in this appeal. In support of the assertion that the 1995 case was dismissed with prejudice, Porter cites a June 1, 2012 letter from an Illinois attorney written to the MDHS attorney, which states that "[t]he case was ultimately dismissed 'with prejudice[.]' " The letter goes on to state that the dismissal "with prejudice," which means the case "cannot be reinstated and it cannot be re-filed," "as it applies to parentage and child[-]support cases [,] may be against the public policy of the State of Illinois[.]"

¶ 18. The letter stating the Illinois action was dismissed with prejudice is hearsay, and there is nothing in the record supporting the assertion that the case was dismissed with prejudice. The Cook County, Illinois Circuit Clerk's docket reflects that on April 5, 2006, the entire case was dismissed. It does not specify whether the dismissal was with or without prejudice. The record indicates elsewhere that the dismissal was without prejudice. On a document filed in Illinois in August 2015, there is a handwritten note that states: "Respondent voluntarily withdraws his motion [for DNA testing filed 6/15/15,] since this case was dismissed without prejudice per 4/5/06 order." Regardless, Porter did not assert res judicata as an affirmative defense, and this issue is now procedurally barred. "[R]es judicata is an affirmative defense that may be waived." Hinton v. Rolison , 175 So.3d 1252, 1258 (¶ 22) (Miss. 2015).

¶ 19. Further, Porter's assertion that Illinois retained continuing jurisdiction over the child-support action because the action was initially filed there is without merit. Porter is correct that "the issuing state [retains] continuing, exclusive jurisdiction until another state (registering state) acquires jurisdiction. The continuing, exclusive jurisdiction of the issuing state remains in effect as long as one of the parents or the child still resides in the issuing state, unless the parties agree to the contrary." Hamilton , 213 So.3d at 75 (¶ 12) (quoting Grumme v. Grumme , 871 So.2d 1288, 1290 (¶ 6) (Miss. 2004) ); see also Miss. Code Ann. §§ 93-25-609 & -611(a)(2). However, no support order was issued in Illinois. Since no support order was issued in Illinois, there was nothing requiring any further action in Illinois, and the dismissal order did not convey jurisdiction on the Illinois court over any future requests for support. See In re M.I.M. , 370 S.W.3d 94, 98 (Tex. App. 2012). Also, because no judgment was entered in Illinois, there was no support order to register in Mississippi, and there was no need for consent of the parties to enforce the judgment in Mississippi. See Hamilton , 213 So.3d at 75 (¶ 12) ; Miss. Code Ann. §§ 93-25-609 & -611(a)(2). Rather, since no prior support order had been entered prior to the Jefferson County Chancery Court's support order, the Jefferson County Chancery Court, as the first court to issue a support order, became the issuing tribunal, and Mississippi became the issuing state. Thus, jurisdiction to establish a support order was proper in Mississippi.

2. Lack of Payment of Public Assistance by Mississippi

¶ 20. Porter argues that MDHS must prove it provided public assistance to Morris or S.M. for it to bring a claim under UIFSA in Mississippi. Porter argues that because neither Morris nor S.M. lived in Mississippi, and that because no public assistance from the state of Mississippi had been paid, MDHS had no interest in this matter.

¶ 21. Porter cites Department of Healthcare & Family Services v. Arevalo , 409 Ill.Dec. 699, 68 N.E.3d 552, 560 (¶ 23) (Ill. App. Ct. 2016) (citing Department of Human Services v. Shelnut , 772 So.2d 1041 (Miss. 2000) ), for the argument that because UIFSA creates no duty of support, "the only basis then for the creation or generation of a claim to be asserted by MDHS under the UIFSA is for it to show and prove that it provided public assistance" to Morris or S.M. However, Arevalo goes on to cite, correctly, the provision of UIFSA stating that since no support duty is created by UIFSA, courts must look to "the substantive and procedural law of the forum state" to determine whether a duty exists. Id. (citing 750 Ill. Comp. Stat. 22/303 (West 2014) ).

¶ 22. Our law states that MDHS is authorized "[t]o accept applications for child[-]support[-]enforcement services to establish paternity, secure and collect support from any proper party or person as defined by Title IV-D of the federal Social Security Act notwithstanding the fact that the child or children do not currently receive or have never received public assistance." Miss. Code Ann. § 49-19-31(d) (Rev. 2012). It is undisputed that Morris fell under Title IV-D of the Social Security Act. Further, UIFSA requires MDHS to provide services to anyone residing in any state, who is entitled to support. Section 93-25-307(a)(1) states: "In a proceeding under this chapter, a support[-]enforcement agency of this state, upon request[,] ... [s]hall provide services to a complainant residing in a state ...." (Emphasis added). Also, the unofficial annotation to section 203 provides that "[a]lthough the tribunal is empowered to initiate a request for a support order, it is almost always the case that it is the support[-]enforcement agency that initiates a proceeding to another state by sending the documents to the support [-]enforcement agency in that state ." (Emphasis added). As there was no requirement that Morris or S.M. reside in Mississippi or receive support from this state to convey jurisdiction in Mississippi, this issue is without merit.

II. Whether Mississippi's or Illinois's age of majority applies.

¶ 23. Having established that jurisdiction was proper in the chancery court, we now determine whether Mississippi's or Illinois's age of majority applies under UIFSA.

¶ 24. UIFSA contains the following choice-of-law provision:

Except as otherwise provided in this chapter, a responding tribunal of this state shall:
(1) Apply the procedural and substantive law generally applicable to similar proceedings originating in this state and may exercise all powers and provide all remedies available in those proceedings; and
(2) Determine the duty of support and the amount payable in accordance with the law and support guidelines of this state.

Miss. Code Ann. § 93-25-303. The Jefferson County Chancery Court was the responding tribunal, as it was the authorized court in the responding state (Mississippi). Section 93-25-303 is clear that the responding tribunal-the Jefferson County Chancery Court-is to determine child support "in accordance with the law ... of this state ." (Emphasis added). Thus, this state's law applies.

¶ 25. Under Mississippi statutory law, a "minor" is "any person ... under twenty-one years of age." Miss. Code Ann. § 1-3-27 (Rev. 2014). At the time of this action, S.W. was twenty years old-a minor under our law. Mississippi Code Annotated section 93-11-65(8)(a) (Rev. 2013) states that unless otherwise ordered in the underlying child-support judgment, emancipation shall occur when the child (1) turns twenty-one, (2) marries, (3) joins the military and serves on a full-time basis, or (4) is convicted of a felony and is sentenced to incarceration of two or more years for committing such felony. As set forth in section 93-11-65(8)(a), applicable Mississippi law provides that the duty to provide child support ends upon emancipation.

¶ 26. As jurisdiction was proper in the Jefferson County Chancery Court and Mississippi law applies, the duty of support did not terminate until S.M. reached twenty-one, unless S.M. was emancipated prior to turning twenty-one. Therefore, the chancellor erred in setting aside the initial child-support order, which required Porter to pay child support until S.M. reached twenty-one or was otherwise emancipated. The chancellor's final judgment setting aside the child-support award is reversed, and this matter is remanded for reinstatement of the chancellor's June 23, 2015 order applying Mississippi law.

¶ 27. THE JUDGMENT OF THE JEFFERSON COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      Initials are substituted for the child's name in accordance with section 6(A)(2) of Mississippi's Appellate E-Filing Administrative Procedures.

      All states have enacted UIFSA, as its enactment "was [federally] mandated as a condition of state eligibility for the federal funding of child[-]support enforcement and ... to continued receipt of subsidies for TANF (Temporary Assistance for Needy Families)." John J. Samson & Barry J. Brooks, Integrating UIFSA (2008) with the Hague Conviction of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance , 49 Fam. L.Q. 179, 187 (2015).

      Mississippi's current version of UIFSA was enacted during the 2015 Mississippi legislative session through Senate Bill 2301, Chapter 367. UIFSA was first enacted in Mississippi in 1997 and codified in Mississippi Code Annotated sections 93-25-1 through -117. Sections 93-25-1 through -117 were repealed and replaced by sections 93-25-101 through -903, effective July 1, 2015. The provisions relevant to this matter are substantively the same under both versions.

      Mississippi's corresponding statutory enactment of section 307(a) states: "(a) In a proceeding under this chapter, a support enforcement agency of this state, upon request[,] ... [s]hall provide services to a complainant residing in a state[.]" Miss. Code Ann. § 93-25-307(a)(1).

      Section 93-25-301(b) states:
      An individual complainant or a support enforcement agency may initiate a proceeding authorized under this chapter by filing a complaint in an initiating tribunal for forwarding to a responding tribunal or by filing a complaint or a comparable pleading directly in a tribunal of another state or a foreign country which has or can obtain personal jurisdiction over the defendant.

      In M.I.M. , the appellant argued the 219th District Court in Collin County, Texas, lacked subject-matter jurisdiction because the child-support action had initially been filed in the 296th District Court of Collin County, Texas. M.I.M. , 370 S.W.3d at 98. The initial proceeding in the 296th district was dismissed for want of prosecution, and a final support order was never pursued. Id. On appeal, the Texas Court of Appeals, Dallas, applied the provisions of the UIFSA and found that the "failure to pursue a final order in the [initial] proceeding negate[d] the existence of continuing, exclusive jurisdiction in the [initial] [d]istrict [c]ourt."Id.

      MDHS's complaint filed on April 17, 2012, incorrectly stated that Morris and S.W. were Mississippi residents. However, this was corrected in MDHS's second complaint filed on April 6, 2015, which stated that Morris and S.W. were Illinois residents. While Porter argues MDHS filed the second complaint without leave, this issue was not raised below and is procedurally barred on appeal. It is undisputed that neither Morris nor S.W. have lived in Mississippi, nor is there any indication they have ever visited or received support from this state. The chancellor's June 23, 2015 order also incorrectly states that Morris is a resident of Jefferson County. The order setting aside the June 23 support order correctly states Morris and S.W. are Illinois residents.

      See Miss. Code Ann. § 93-25-203 ("Under this chapter, a tribunal of this state may serve as an initiating tribunal to forward proceedings to a tribunal of another state and as a responding tribunal for proceedings initiated in another state ....").