author: ROBERTS, J., MAXWELL, J.,

text:
    Marcy WRIGHT, Appellant v. ROYAL CARPET SERVICES, Appellee.
    No. 2007-CA-01668-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.

      Jim Waide, Tupelo, attorney for appellant.
    B. Wayne Williams, Paul Nathan Jenkins, Jr., Tupelo, attorneys for appellee.
   ROBERTS, J.,

for the Court;

¶ 1. On February 13, 2004, Marcy Wright filed suit against seven defendants on a variety of claims related to the cleanup of her home after a pipe ruptured leaving water throughout her home. On March 26, 2004, the case was removed to federal court. After nearly two years of litigation, Wright reached a settlement with the insurance defendants, so the matter was remanded to the Circuit Court of Lowndes County on March 12, 2006, leaving only the resident defendants, Royal Carpet and Service Pro South. A jury trial was held on August 21, 2007, and the jury returned a verdict in favor of Royal Carpet. Judgment was entered by the circuit court in favor of Royal Carpet on September 24, 2007. Aggrieved, Wright appeals and argues that the trial judge committed reversible error by denying her motion in limine to exclude evidence of her homeowner’s insurance. Finding no error, we affirm.

FACTS

¶ 2. Upon returning home on Sunday, October 7, 2001, Wright discovered an inch or so of water throughout her home, originating from a bathroom pipe that had burst the night before. Wright spent most of the day removing the water, furniture, and carpet from her home. Wright began contacting water-removal and/or carpet-cleaning companies the following Monday or Tuesday. Wright testified that she contacted several companies prior to speaking with Danny Mattison, the owner of Royal Carpet, the week of October 8, 2001. Feeling confident that Mattison could help her, she arranged for Mattison to meet with her and an insurance adjuster on October 11, 2001.

¶ 3. When he arrived, Mattison found that Wright had removed the standing water and water-soaked carpet from her home. Prior to placing two dehumidifiers and two fans in the affected areas of the home, Mattison checked the moisture levels in the home and applied Microban X-580 (Microban), an antimicrobial agent. Mattison and Wright discussed the precautions stated on Microban’s label, and Mat-tison informed Wright that, pursuant to those precautions, she should vacate the area for twenty minutes after the antimicrobial agent was applied. Wright informed Mattison that she would be staying with her mother, so she would not be staying in the home while the cleanup and drying process was ongoing.

¶ 4. Mattison left the dehumidifiers and fans operating for three days, and he then rechecked the moisture levels and found them to be within normal limits for the region. Mattison testified that he suggested to Wright that she have the baseboards and tile flooring removed from the home, but she declined because of the expense. At trial, Wright disputed his testimony and stated that he never suggested she remove the baseboards or tile flooring. Mattison returned to Wright’s home in November 2001 because Wright complained of a chemical smell and that she was experiencing allergic-type reactions. Mattison wiped down the area where he had applied the Microban. Mattison testified that he found no indication of mold growth in the home at this visit or the prior visit in October 2001.

¶ 5. In an effort to find the source of Wright’s problem, Mattison suggested that she have the air conditioning duct work examined and possibly cleaned in case there was mold growth within it. Wright contracted with Service ProSouth, and the company cleaned and disinfected the duct work in October or November 2001. The last time Wright had “any dealings” with Mattison was November 15, 2001.

¶ 6. After Mattison dehumidified her home, Wright attempted to “air out” her house, so she left the windows open for approximately four weeks, after which time she closed up the home and did not return. At some point, mold grew behind the baseboards in Wright’s home. However, even Wright’s expert acknowledged it was unknown when the mold growth in Wright’s home occurred; he stated that it could have been caused by the initial water leak or by Wright’s actions of leaving the home open to the elements and then closing it up. In any event, the baseboards were eventually removed, and some mold growth was discovered. Wright never returned to live in the home because she stated that it made her sick. Wright placed some of her belongings in a non-climate-controlled metal storage building behind her home and in her garage, and she burned some of her personal property, such as clothing, because she said that the clothing made her skin burn and itch despite being washed several times.

¶ 7. Wright testified that, between November 2001 and sometime in 2005, she worked with her insurance company to have her home repaired, and she received three estimates from three different contractors in 2002 to 2003, as well as a check from the insurance company for the repairs. She also testified that the insurance company offered to have her clothes professionally cleaned. Wright testified that she refused to cash the check from the insurance company or have her home repaired because no one “could guarantee that [she] could live there again without health problems.” She testified that she would not let the insurance company have her clothes cleaned because she had already tided to clean them, and it did not work. She also stated that based upon her reading, she believed that the method of cleaning mentioned by the insurance company was not “a good thing.” At trial, Wright testified that she blamed the insurance company and Mattison for allowing mold to grow in her home.

¶ 8. As mentioned, prior to trial, Wright made a motion in limine to exclude any evidence of homeowner’s insurance arguing that allowing such evidence would violate the collateral-source rule. Royal Carpet contended that Wright’s receipt of insurance payments and offers to repair were necessary to show that she had failed to mitigate her damages, and it was necessary to reveal that she had homeowner’s insurance because she had made statements specifically blaming the insurance company for one hundred percent of her damages. The trial judge agreed with Royal Carpet and allowed her statements to the insurance company to be admitted. He also allowed questions related to her failure to mitigate her damages. However, the trial judge ruled that the parties were not allowed to discuss the exact amount of money Wright had received. The admission of evidence related to Wright’s homeowner’s insurance is the sole issue before this Court.

DISCUSSION

WHETHER THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR BY ADMITTING EVIDENCE OF WRIGHT’S HOMEOWNER’S INSURANCE IN VIOLATION OF ■ THE COLLATERAL-SOURCE RULE

¶ 9. “This Court reviews a trial judge’s decision to admit or deny evidence under an abuse-of-discretion standard.” Robinson Prop. Group, L.P. v. Mitchell, 7 So.3d 240, 243 (¶ 9) (Miss.2009) (citing Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss.2000)). “If an error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Id. (citation omitted). It is well settled that “a defendant tortfeasor is not entitled to have damages for which he is liable reduced by reason of the fact that the plaintiff has received compensation for his injury by and through a totally independent source, separate and apart from the defendant tortfeasor.” Id. (citing Cent. Bank of Miss. v. Butler, 517 So.2d 507, 511-12 (Miss.1987)). In other words, compensation or indemnity received by the plaintiff from a collateral source such as insurance cannot be used by the defendant to mitigate or reduce damages. Id. “However, the eollateral[-]source rule applies only when the compensation is for the same injury for which the damages at issue are sought. Further, if evidence is introduced for a purpose other than to mitigate damages, the eollateral[-]source rule is not violated and the evidence may be admitted.” Geske v. Williamson, 945 So.2d 429, 434 (¶ 18) (Miss.Ct.App.2006) (internal citations and quotations omitted). Yet, we are mindful that the ultimate filter for all evidence is Mississippi Rule of Evidence 403, which provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

A. Did Wright waive this issue for failure to raise a timely objection?

¶ 10. The threshold question relating to this issue is whether Wright has waived it on appeal. Royal Carpet argues that Wright has waived any argument related to the preclusion of evidence of her homeowner’s insurance because, at trial, she was the first to “ma[k]e mention of insurance, [or] introduce! ] evidence regarding her insurance.... ” In response, Wright argues that she did not “open[ ] the door” to such evidence. Rather, she claims the trial judge opened the door by denying her motion in limine, and she states that she was “merely trying to minimize the damage from the prejudicial ruling.” She further argues that “[t]he fact that the trial judge decided to admit inadmissible evidence should not preclude an attorney from doing all he can do to minimize the prejudice.” Although we agree that one’s attorney should do all that he or she can to minimize the effects of an adverse ruling, that does not eliminate the duty to preserve an issue for appeal by raising a contemporaneous objection. Directly on point to this issue is the case of Quinn v. State, 873 So.2d 1033, 1039 (¶ 28) (Miss.Ct.App.2003), wherein this Court addressed the State’s violation of a trial judge’s ruling on a motion in limine and held:

The State did in fact violate the motion in limine regarding the amount of money [Katina] Quinn had on her person by specifically questioning [Ellis] Brister about the matter. However, the record is devoid of any objection by Quinn when such question was asked of Bris-ter. Therefore!,] we find that an issue that is not properly brought to the attention of the trial court by appropriate timely objection is waived. The supreme court has repeatedly held that “if no contemporaneous objection is made, the error, if any, is waived.”

(Internal citations and quotations omitted).

¶ 11. Although there were instances when Wright’s attorney objected to questions about Wright’s dealings with her insurance company, there were numerous other references to her communications and negotiations with the insurance company that were either brought up by Wright or were not objected to. For example, during the direct examination of Wright, her attorney introduced into evidence an inventory list requested by Wright’s insurance company. Another incidence occurred during the cross-examination of Wright, wherein she testified, without objection, as follows:

[Defense]: And I think you testified a little earlier today, Ms. Wright, that during this whole process since October 11th of 2001[,] you had your insurance company involved in this claim; is that correct?
[Wright]: That’s correct.
[Defense]: And that you were working to try to get the house repaired by your insurance company; is that correct?
[Wright]: That’s correct.
[Defense]: And they actually sent you three contractor estimates to repair your house; is that correct?
[Wright]: Correct. Yes.

¶ 12. Although there were other presentations of testimony regarding Wright’s insurance, it is not necessary to list them all, as even Wright does not dispute that she first introduced to the jury that she indeed had insurance coverage on her home. Despite Wright’s contention that she was just trying “to make the best of a bad situation by trying to minimize the damage done by the trial judge’s ruling,” this issue is proeedurally barred by her failure to raise a contemporaneous objection at trial. Procedural bar notwithstanding, we will address the issue on its merits.

B. Did the trial judge commit reversible error by denying Wright’s motion in limine?

¶ 13. When faced with a motion in limine, a trial court must find the following two factors present in order to grant the motion: “(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988) (citation omitted). ‘We will reverse a court’s denial [or grant] of a motion in limine only if the court abused its discretion in denying [or granting] the motion.” Cridiso v. State, 956 So.2d 281, 289 (¶ 21) (Miss.Ct.App.2006) (citing Brawner v. State, 872 So.2d 1, 13 (¶ 36) (Miss.2004)).

¶ 14. As discussed, Royal Carpet was not entitled to have its damages reduced because Wright received compensation for her damages through a totally independent source, separate and apart from Royal Carpet. See Mitchell, 7 So.3d at 243 (¶ 12). However, if the evidence was introduced for a purpose other than to mitigate Royal Carpet’s damages, the collateral-source rule was not violated, and the evidence was properly admitted. Geske, 945 So.2d at 434 (¶ 18) (citing Burr v. Miss. Baptist Med. Ctr., 909 So.2d 721, 729 (¶ 26) (Miss.2005)). We find that the trial judge did not err in his determination that Royal Carpet could elicit testimony about Wright’s failure to mitigate the damage caused by the initial water leak.

¶ 15. “Without question, a person injured in tort is required to take reasonable steps to mitigate his damages.... ” Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1162-63 (Miss.1992); Travelers Indem. Co. v. Rawson, 222 So.2d 131, 135 (Miss.1969) (finding it error to refuse a jury instruction that the plaintiffs had a duty to mitigate damages after wind and rain damaged their home, and they had failed to repair the home for nearly two years). Flight Line, Inc. and Travelers Indemnity are applicable to the case at hand.

¶ 16. At trial, Wright asserted that she blamed both the insurance company and Royal Carpet for the loss of the use of her home, as well as the loss of her personal property. However, it was undisputed that her last encounter with Royal Carpet was on November 15, 2001, slightly over a month after the water leak occurred. Wright had a duty, within a reasonable length of time after the original damage, to remedy the faulty situation and prevent subsequent damage. Travelers Indem. Co., 222 So.2d at 135 (citation omitted). Testimony established that Wright was offered the means to repair the damage years earlier, but she had obstinately refused because no one could give her a one-hundred-percent guarantee that she would never get sick if she occupied the home after the repairs. From the record, we find that the evidence of insurance was offered for a reason other than to allow Royal Carpet to mitigate its damages. It was offered to show that Wright had failed to mitigate her damages. Therefore, we do not find that its admission violated the collateral-source rule. Accordingly, we find no error in allowing Royal Carpet to question Wright about her refusal to try and remedy her situation for six years, despite being given the means and opportunity to do so by her insurance carrier several years earlier.

C. Did the trial court err in allowing testimony related to Wright’s letter to her insurance company ?

¶ 17. Royal Carpet sought to introduce evidence related to a letter that Wright sent to her insurance company on June 23, 2003. In that letter, she placed one hundred percent of the blame for the damage to her real and personal property upon her insurance carrier. Royal Carpet argues that it was admissible because it was a statement against interest, and the trial court determined that it was an admissible statement, as an admission. We agree that it was admissible, but it was not a statement against interest under the hearsay exception of Mississippi Rule of Evidence 804(b)(3) because Wright was not an unavailable witness. Rather, it was admissible under Mississippi Rule of Evidence 801(d)(2), as an admission by party-opponent.

¶ 18. Under Mississippi Rule of Evidence 801(d)(2), a statement is not hearsay if it “is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth.... ” Under this rule, the statement is offered against a party as the party’s own statement, and it is immaterial whether the declarant is available to testify. Rankin v. State, 963 So.2d 1255, 1259 (¶ 15) (Miss.Ct.App.2007) (the defendant, accused of statutory rape, sent a letter to victim’s mother; the court held it was a statement by party-opponent, not a statement against interest, because the declar-ant was available).

¶ 19. At trial, Wright testified that she was making claims against Matti-son for her property loss, both real and personal, as well as for her mental anguish. However, she acknowledged that she had written the letter to her insurance company approximately four years earlier, wherein she stated that she placed all of the responsibility on her insurance company. She also testified that she had not encountered Mattison since November 2001, which was nearly two years prior to her placing the full responsibility with her insurance company. Although there was the danger of prejudice, which the collateral-source rule and Mississippi Rule 403 are designed to avoid, we find that the evidence was offered for a purpose other than to allow Royal Carpet to mitigate its damages, and that the statement’s probative value outweighed the possibility of prejudice. Moreover, this issue is also procedurally barred because Wright failed to raise a contemporaneous objection to its admission.

CONCLUSION

¶ 20. Pursuant to the foregoing authorities and analysis, we find that the trial judge did not err or violate the collateral-source rule in allowing into evidence Wright’s homeowner’s insurance. Accordingly, this issue is without merit.

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

MYERS, P.J., GRIFFIS AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., LEE, P.J., BARNES AND CARLTON, JJ.

MAXWELL, J.,

concurring in part and in result:

¶ 22. Although I concur with the result reached by the majority, I disagree that Wright’s appeal is procedurally barred.

¶ 23. Wright moved in limine to exclude the introduction of evidence concerning her homeowner’s insurance. Prior to trial, the circuit court denied the motion in part and granted it in part. Specifically, the court held that Wright could be questioned about the existence of her homeowner’s insurance, but the amount of any prior settlements could not be mentioned.

¶24. The supreme court recently acknowledged its long-held view that a “motion in limine regarding the introduction of evidence properly preserve[s] the issue for appeal, and an objection [is] not necessary.” Goff v. State, 14 So.3d 625, 640 (¶ 46) (Miss.2009) (citing Kettle v. State, 641 So.2d 746, 748 (Miss.1994)). Thus, I do not find Wright’s failure to make a subsequent objection at trial prevents our review of the insurance issues.

¶ 25. Furthermore, I do not believe Wright waived these issues on appeal by introducing evidence she originally sought to exclude in her motion in limine.

¶ 26. I recognize that generally a party may not introduce evidence at trial and then assert on appeal that admission of the evidence constituted reversible error. See Hobson v. State, 730 So.2d 20, 24-25 (¶ 15) (Miss.1998). But this rule is not absolute. Hobson involved a situation where the defendant elicited otherwise inadmissible testimony and then objected to subsequent allusion to or inquiry into that testimony. Id. at 24 (¶¶ 13-14). In applying this general prohibition, the Hobson court reasoned: “If the defendant goes fishing in the state’s waters, he must take such fish as he catches.” Id. at 25 (¶ 15) (quoting Fleming v. State, 604 So.2d 280, 289 (Miss.1992)).

¶27. However, this general rule does not apply to situations where a litigant accepts, respects, and obeys a trial court’s rulings and advances his client’s cause in a manner consistent with those rulings. See Stong v. Freeman Track Line, Inc., 456 So.2d 698, 711 (1984).

¶ 28. In McCullough v. State, 750 So.2d 1212 (Miss.1999), Justice Mills, writing for a majority of the supreme court, addressed this exception to the general prohibition against complaining about evidence one introduces himself. Specifically, he distinguished Hobson from situations such as the one before us, where the trial court makes an adverse ruling that a party must live with. In McCullough, after the circuit court denied the defendant’s motion in li-mine to exclude evidence of a prior shooting, his attorney was forced to adjust his trial strategy and introduce the evidence himself to limit its effect on the jury. Id. at 1215 (¶ 9). The supreme court reasoned: “Once the trial court put the defense counsel in that posture, [appellate courts] should not, by procedurally barring the issue, penalize the defense for attempting to minimize the damage done[.]” Id. at 1216 (¶ 13).

¶ 29. A similar exception to the waiver rule was also discussed in Stong, 456 So.2d at 711. In Stong, our supreme court acknowledged that “[w]hen the trial judge makes a ruling adverse to a litigant, and where that litigant’s lawyer has properly noted his objection, that litigant and his lawyer are entitled to try the rest of the case on the assumption that the trial judge’s ruling will not be disturbed on appeal.” Id. See also Jones v. State, 461 So.2d 686, 702 (Miss.1984). In such instances, our appellate courts “will not imply a waiver from the subsequent conduct which does nothing more than show the lawyer’s obligatory respect for the trial judge while at the same time continuing as best can be done the advancement of his client’s cause.” Stong, 456 So.2d at 711.

¶ 30. Here, there is little doubt Wright’s trial counsel adjusted his trial strategy to take the sting out of what he perceived to be damning evidence. This is fully permissible in light of the adverse ruling on the motion in limine.

¶ 31. Accordingly, I agree with the result reached by the majority and its analysis of the circuit court’s decision to deny Wright’s motion in limine as well as its decision to allow testimony about Wright’s letter to her insurance company. However, I believe Wright was entitled to play the hand the court dealt her and that she is not procedurally barred from asserting these issues on appeal.

KING, C.J., LEE, P.J., BARNES AND CARLTON, JJ„ JOIN THIS OPINION.

      . Initially, Marcy Wright and her son, John Adams Wright, filed suit against Metropolitan Property and Casualty Insurance Company; MetLife Auto and Home; Economy Premier Assurance Company; Royal Carpet Service, LLC; Service Pro South; Microban Systems, Inc.; and II Rep-Z alleging breach of contract, negligent failure to warn of a known danger, and products liability. However, pri- or to trial, the Wrights stipulated that John Adams Wright was not making any claim against Royal Carpet and, therefore, dismissed any claims he may have had. This was formalized in an order of dismissal by the Circuit Court ol Lowndes County, dated September 6, 2007.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Derrick CHATMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00050-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.
    Derrick Chatman, appellant, pro se.
    Leslie S. Lee, Clayton Matthew Cummings, W. Daniel Hinchcliff, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris, Jr., attorney for appel-lee.
   CARLTON, J.,

for the Court:

¶ 1. Derrick Chatman was convicted of aggravated assault and burglary of a dwelling following a bench trial in the Circuit Court of Washington County. Circuit Judge W. Ashley Hines, who presided over Chatman’s trial, sentenced Chatman to twenty years on the aggravated assault charge, with five years suspended, and twenty-five years for the burglary of a dwelling charge, with ten years suspended, with the sentences to run consecutively in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by the judgment of the circuit court, Chatman appeals his convictions and sentences. The Mississippi Office of Indigent Appeals represents Chatman on appeal. Chat-man’s attorney filed a brief pursuant to Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005), wherein he asserts that he scoured the record in Chatman’s case and found no arguable issues for appeal that he could present to this Court in good faith. Following the procedure set forth in Lindsey, Chatman filed a pro se brief on his own behalf, raising five assignments of error. This Court has fully examined the record in Chatman’s case, and we likewise find no meritorious issues. Therefore, we affirm Chatman’s convictions and sentences.

FACTS

¶ 2. Deena Parker lived with her three children and her mother in Greenville, Mississippi. On November 9, 2007, Deena and her seven-year-old daughter were asleep in Deena’s bed. At approximately 2:30 a.m., Deena received a phone call from Chatman. Chatman expressed to Deena that he wanted her to meet him in the storage room of her home to have sex. Deena declined Chatman’s invitation, explaining to him that she was tired and did not want to talk to him. Chatman called a second time, and Deena again informed Chatman that she did not want to talk to him.

¶ 3. Deena then went into her mother’s bathroom and looked through the window. Deena saw Chatman outside knocking on his sister’s door across the street. Chat-man left and called Deena again from another location. Deena did not answer Chatman’s third phone call.

¶ 4. At approximately 4:00 a.m., Deena heard her dog barking in the family’s backyard and noticed that one of the home’s motion-detection lights had been triggered. While phoning the Greenville police for help, Deena noticed someone’s shadow move past her bedroom window. Deena and her daughter went into the family room at the front of the house to await the police officers’ arrival.

¶ 5. However, before police officers could arrive, Chatman broke through the front door of the home and assaulted Deena, hitting her with a pipe. Chatman hit Deena with the pipe several times about her head and face. Deena kicked Chatman to get him away from her. As he approached Deena to hit her again, Chatman noticed that police officers had arrived at the home. Chatman then fled. Deena’s injuries required approximately ten stitches in her forehead and thirty-two staples in her scalp.

¶ 6. Kenneth Redfield, an officer with the Greenville Police Department, testified that he heard glass breaking and a woman crying as he exited his vehicle upon arriving at Deena’s home. He then observed Deena bleeding and saw a man run from the house. Another officer, Gregory Graves, pursued the man on foot, but Officer Graves was unable to apprehend him. Inside the house, Officer Redfield observed overturned furniture, blood spattered on the wall of the living room, and a pipe. Blood appeared to be on the pipe. However, neither the State nor Chatman requested testing or analysis of the substance on the pipe.

¶ 7. Notably, Chatman testified in his own defense at trial. According to Chat-man, he went to Deena’s house to retrieve a pipe he needed for his trailer. He saw Deena with another man, and he “lost [his] cool.” Chatman claimed that he did not kick the door open. Further, Chatman testified that he could not remember much of the incident after he hit Deena with the pipe. In short, Chatman admitted his presence at the crime scene and also admitted the overt act of hitting Deena, albeit in a heat of passion or anger.

¶ 8. Consequently, following the bench trial, the trial judge convicted Chatman of both counts and sentenced Chatman to twenty years for the aggravated assault conviction, with five years suspended, and twenty-five years for the burglary of a dwelling conviction, with ten years suspended, with the sentences to run consecutively in the custody of the MDOC. Upon review, we find no error and affirm.

DISCUSSION

¶ 9. The supreme court in Lindsey implemented the following procedure to govern cases in which counsel for indigent defendants find no arguable issues to present on appeal:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4), (7)....
(2) As part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing....
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief....
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal ....
(5)Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748 (¶ 18) (internal citations and footnotes omitted).

¶ 10. Chatman’s appellate counsel complied with the procedures set forth in Lindsey. Chatman’s counsel filed a brief stating that he examined the entire record, including the following specific items:

(a) the reason for the arrest and the circumstances surrounding the arrest of Derrick Chatman; (b) any possible violations of Mr. Chatman’s right to counsel; (c) the entire trial transcript and content of the record; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions (n.a.); (g) all exhibits, whether admitted into evidence or not; (h) possible misapplication of the law in sentencing; (i) the indictment and all the pleadings in the record; and any possible ineffective assistance of counsel issues.

¶ 11. Further, Chatman’s appellate counsel informed Chatman of his right to file a pro se brief and requested additional time to allow Chatman to file such a brief if he chose to do so. See Lindsey, 939 So.2d at 748 (¶ 18). Chatman then filed a brief on his own behalf, asserting several errors in the trial court. However, after an examination of Chatman’s pro se supplemental brief and our thorough review of the record in this case, we find that Chat-man raises no arguable issues in support of his appeal which merit discussion on review. Therefore, we affirm Chatman’s convictions and sentences.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, AND COUNT II, BURGLARY OF A DWELLING, AND SENTENCE OF TWENTY-FIVE YEARS, WITH TEN YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: GRIFFIS, J., CARLTON, J.,

text:
    Henry LINDSEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01717-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.

      Thomas A. Pritchard, Biloxi, attorney for appellant.
    Office of the Attorney General, by Ladonna C. Holland, attorney for appellee.
   GRIFFIS, J.,

for the Court:

¶ 1. A jury found Henry Lindsey guilty of possession of contraband in a private correctional facility, in violation of Mississippi Code Annotated section 47-5-198 (Rev.2004). Lindsey was sentenced to seven years in the custody of the Mississippi Department of Corrections (“MDOC”). The sentence was ordered to run consecutively to his prior sentence. On appeal, Lindsey argues that the trial judge erred by failing to give a limiting instruction and failing to recuse. We find no error and affirm.

FACTS

¶ 2. On February 21, 2008, Lindsey was in the custody of the MDOC. He was incarcerated for armed robbery, and he was held at the Walnut Grove Youth Correctional Facility. Lindsey was accused of willfully, unlawfully, and feloniously possessing a contraband item — a sharpened instrument. After a trial held on September 8, 2008, a jury found Lindsey guilty of possession of contraband in a private correctional facility. It is from this judgment that Lindsey appeals.

ANALYSIS

1. Did the trial judge err in alloiving the jury to hear testimony and not issuing a limiting instmction to the jury?

¶ 3. Lindsey contends that the trial judge failed to instruct the jury to disregard evidence of other crimes, wrongs, or acts wher*e there was no foundation for their admissibility and no showing that the probative value outweighed the prejudicial effect. The State argues that Lindsey’s failure to make a contemporaneous objection regarding Lindsey’s past crime of armed robbery bars Lindsey from arguing this issue on appeal. The State further claims that there was nothing for the jury to be instructed to disregard from the evidence because Lindsey never answered the question once the objection by defense counsel was sustained.

¶ 4. During its cross-examination, the State asked Lindsey:

Q: Why are you [at the Walnut Grove Youth Correctional Center]?
A: Armed robbery.
Q: Armed robbery. How long have you been there?
A: Since 2006.
Q: And Mr. Dotson was coming around to serve paperwork on you. You said it was an RVR. What does that mean?
A: A rule violation report.
Q: So you were in trouble when he came to serve you some papers, weren’t you?
A: Yes, sir.
Q: It had something else to do with something else you have been in trouble for besides that shank?
By Mr. Smith: Your Honor, I would object to this line [of questioning] as irrelevant. He’s here about whether or not he had a shank in his cell and not anything else.
By Mr. Thames: He opened the door.
By the Court: It’s just like in a trial of a case, you cannot mention that a person has committed another crime. He has testified it was a RVR [sic], rule violation report, which is the same principle as not being allowed to introduce evidence of subsequent crime. So your objection is sustained.

(Emphasis added).

¶ 5. The trial judge “enjoys a considerable amount of discretion as to the relevancy and admissibility of evidence.” Shearer v. State, 423 So.2d 824, 826 (Miss.1982). We will not reverse the trial court judge unless he abused his discretion and caused the defendant to experience prejudice. Id.

¶ 6. Lindsey cites Smith v. State, 656 So.2d 95 (Miss.1995), to support his argument that the trial court has a sua sponte duty to give a limiting instruction after defense counsel objects to character evidence being admitted. However, Smith was overruled by Brown v. State, 890 So.2d 901 (Miss.2004). In Brown, the supreme court stated:

The burden should properly be upon the trial counsel to request a limiting instruction. This was our rule before Smith, in accord with Rule 105 of the Mississippi Rules of Evidence. The rule provides in pertinent part that “[w]hen evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Miss. R. Evid. 105 (emphasis added). We struggled in Smith to require judges to issue the sua sponte ruling, since that would contradict “a rule so clear” as M.R.E. 105. [citation omitted]. Today we abandon Smith’s requirement that a judge issue a sua sponte limiting instruction and return to the dear language of Rule 105. The rule clearly places the burden of requesting a Rule U0U(b) limiting instruction upon counsel. The rule is controlling, and to the extent that Smith and its progeny contradict that plain language^] they are overruled.

Id. at 913 (¶ 36) (emphasis added).

¶ 7. Here, defense counsel failed to request a limiting instruction, and the trial judge was not required to issue the limiting instruction sua sponte after defense counsel objected. Because it was defense counsel’s duty to request the limiting instruction and counsel failed to do so, this issue is without merit.

2. Did the trial judge err by not recus-ing himself sua sponte?

¶ 8. Lindsey claims that the trial judge was biased and should have recused himself sua sponte after speaking to the potential jurors. The State contends that the judge was not biased and that Lindsey selectively quoted portions of the judge’s introductory remarks to show that he was biased toward Lindsey.

¶ 9. Prior to voir dire, the trial judge made the following comments to the potential jurors:

I’ll stress to you again the importance of a fair and impartial jury. I really believe in the justice system. I really believe it’s no good if it’s not properly handled here in this courtroom. Trial of cases involves young people a lot of times. It involves situations, and you as jurors, you understand of course, that depending upon your verdict, a person’s liberty could be taken away from them. You should not ever be concerned with that, because I know that you will read in the paper and I know that you hear it on the news, and if you’ll listen to me sometimes, I’m very, very critical of the Department of Corrections system in releasing prisoners when they’ve not served the time that the Judge has pronounced. So don’t be concerned with how much punishment is involved in a case. You be concerned with the facts of the case and with the law. Then there’s others, like myself, who will have the responsibility of passing judgment after you’ve made your judgment.
I look at a person standing before me, ..., and I look at their mother and father in the background, and they’re good people. But, yet, the decision has got to be done; otherwise, you’re not going home safely when you leave this courthouse, and you’re not going to have the right that you have. One right that people never talk about, ..., is probably the most important right that you can ever have, and that’s the right from fear. You’ll never have that right unless people ante up their responsibility.

¶ 10. The trial judge went on to instruct the potential jurors “to be fair and impartial” and to do what they think is right. He further stated:

He is not required to prove himself innocent. He’s not required to take the stand and testify.... Yes, he has done wrong in the past, but you don’t hold that against him. We know that he is in a correctional facility.... We know that he has committed some offense to cause him to be there. But whatever, that is not for you to be concerned with or to consider — only what happened down there.

He instructed the potential jurors to judge the case by the evidence and not by the lawyers’ performance nor the witnesses’ personalities.

¶ 11. Uniform Rule of Circuit and County Court 1.15 states: “Any party may move for the recusal of a judge ... if it appears that the judge’s impartially might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law.” See Bateman v. Gray, 968 So.2d 1284, 1290 (¶ 23) (Miss.Ct.App.2007). A trial court judge is presumed to be unbiased and fair, but this presumption may be overcome by evidence which proves a reasonable doubt about the presumption. Id. at (¶ 25).

¶ 12. Failure of the party to object to a trial judge’s appearance results is a waiver of any objection. Foster v. State, 716 So.2d 538, 540 (¶ 7) (Miss.1998); Banana v. State, 635 So.2d 851, 853 (Miss.1994). Lindsey failed to object or file a motion seeking Circuit Judge Gordon to recuse himself. As a result of Lindsey’s failure to object, this assignment of error is procedurally barred on appeal.

¶ 13. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF CONTRABAND IN A PRIVATE CORRECTIONAL FACILITY AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

MYERS, P.J., IRVING, BARNES, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., LEE, P.J., AND ISHEE, J.

CARLTON, J.,

dissenting:

¶ 14. Because I find plain error in the trial judge’s instructions to the jury, I must respectfully dissent. The trial judge made numerous inappropriate comments to the jury during his preliminary jury instructions, which resulted in the jury being improperly informed of its responsibilities. After informing the jury that it was to base its verdict in the case on the law and the evidence, the trial judge further stated that innocent people are sometimes convicted by mistake. The trial judge continued in advising the jury that only the law of Leake County applied to the case. The following excerpt captures the judge’s preliminary advice to the jury with respect to the applicable law:

We’re not talking about the laws in Jackson or anywhere else. We’re talking about your law. Every case that you consider is a law of Leake County. Every case that will be presented is a case of Leake County — nowhere else. And if you make a mistake, that’s all right. And when you go home and you think about, well, did I do the right thing. Judge Gordon told me to be fair and impartial and I tried to be, but I may have made a mistake. And that’s alright. That’s just the way the system works. If a mistake is made, that’s fine. That’s just the way the system works. The system has worked whenever you do that.

¶ 15. The majority quotes other relevant portions of the judge’s sua sponte remarks reflecting the judge’s comments regarding his criticism of the Mississippi Department of Corrections (MDOC) and the MDOC’s early release of prisoners. The dissent will not recite the comments in their entirety; rather, I only note the impact of the further comments on the burden of proof and the applicable law in the case. In doing so, the record reflects that the trial judge’s comments advised the jury that a decision had to be made; otherwise, “you’re not going home safely when you leave this courthouse.” Further, the judge opined that the jury could never be free from fear if they failed to “ante up their responsibility.”

¶ 16. As the majority explains, Henry Lindsey claims that the trial judge should have disqualified himself after speaking sua sponte with the potential jurors. Alternatively, the State contends that the judge was not biased and that Lindsey selectively quoted portions of the judge’s introductory remarks. The State properly points out that Lindsey failed to move for the judge’s recusal at the trial level and failed to include the recusal issue in his motion for a new trial. I agree that the recusal issue is without merit based on our abuse-of-discretion standard of review. Shumpert v. State, 983 So.2d 1074, 1078 (¶ 14) (Miss.Ct.App.2008). However, I express great concern regarding the impact of the trial judge’s comments upon the jury’s understanding of its responsibility and ultimately upon Lindsey’s ability to receive a fair trial by a properly instructed jury.

¶ 17. Briefly addressing the recusal issue, I recognize that this Court reviews such assignments of error under an abuse-of-discretion standard, and the appellant must overcome a presumption that the judge is qualified and unbiased. Id. The presumption of the judge’s impartiality may only be overcome by evidence which raises a reasonable doubt as to the validity of the presumption that the judge is qualified and unbiased. Id. As noted above, Lindsey failed to preserve the recusal issue for appellate review and has not provided evidence beyond a reasonable doubt that the trial judge possessed bias against Lindsey.

¶ 18. As stated, I find that the recusal issue lacks merit. I nonetheless find that the trial judge’s comments constitute plain error, violating Lindsey’s Sixth Amendment rights and prejudicing his ability to receive a fair trial. Furthermore, Lindsey’s due-process rights encompass the right to a properly instructed jury. See Shaffer v. State, 740 So.2d 273, 282 (¶ 31) (Miss.1998) (holding that the trial court’s failure to properly instruct the jury on the elements of the crime charged implicated Justin David Shaffer’s due-process rights); but see Kolberg v. State, 829 So.2d 29, 50-51 (¶ 40) (Miss.2002) (employing a harmless-error analysis to a challenge to jury instructions). However well-intentioned, the trial judge’s preliminary comments improperly instructed the jury as to the law applicable to the case and the State’s burden of proof.

¶ 19. The State’s brief points out that Lindsey’s objections focus on aspects of the laws pertaining to the criminal justice system but not directly to Lindsey. I agree. However, the impact of the judge’s preliminary comments to the jury regarding his views of the law and the criminal justice system affected how the jury was instructed in this case as to what law to apply and how to apply it. While noting that the trial judge’s comments focused on the laws pertaining to the criminal justice system, the State failed to address whether these comments caused prejudice to Lindsey’s constitutional right to a fair trial.

¶ 20. Because I find that the trial judge’s comments affected Lindsey’s constitutional right to a fair trial, I would reverse Lindsey’s conviction and sentence and remand this case for a new trial. Therefore, I respectfully dissent.

KING, C.J., LEE, P.J., AND ISIIEE, J., JOIN THIS OPINION.

      . Henry Lindsey was indicted for and convicted of possession of contraband in a private correctional facility, contrary to the provisions of Mississippi Code Annotated section 47-5-193 (Supp.2009). At the time of the commission of the indicted offense, Lindsey was serving a sentence for armed robbery. Even though Lindsey was indicted by a Leake County grand jury, the indictment charged a violation of state statutory law, not a law pertaining only to or enacted by Leake County. Such comments to the jury that only Leake County law applied was erroneous and confusing.

      . Our supreme court has warned against fear arguments by prosecutors as paths to conviction. Brown v. State, 986 So.2d 270, 275 (¶¶ 11-12) (Miss.2008) (warning prosecutors not to use "send-a-message” arguments and holding that in some circumstances, such arguments alone constitute reversible error).

      . The MDOC policy regarding early release of prisoners constitutes a policy matter beyond the scope of the indictment in this case and is not a proper matter for the jury's consideration in this case.


author: IRVING, J.,

text:
    Terrance SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00812-COA.
    Court of Appeals of Mississippi.
    March 2, 2010.

      Terrance Smith, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court:

¶ 1. Terrance Smith appeals the Harrison County Circuit Court’s denial of his motion for habeas corpus relief. Smith asserts that the circuit court erred in not treating the motion as one for post-conviction relief, in accepting his guilty plea without first reviewing the results of DNA testing, and in accepting his guilty plea when the indictment that charged him was “facially and fatally defective.”

¶ 2. Finding no reversible error, we affirm the circuit court’s judgment.

FACTS

¶ 3. Smith was indicted for the crimes of forcible sexual intercourse and sexual battery in September 2000. On August 23, 2002, Smith pleaded guilty to the crime of forcible sexual intercourse, and the sexual battery charge was passed to the files. Pursuant to the plea agreement, Smith was sentenced to fifteen years’ imprisonment, with twelve years suspended, leaving him with three years to serve and three years of probation. After serving the three years, Smith was released on probation. On March 9, 2007, Smith’s probation was revoked, and he was sentenced to serve the twelve remaining years of his fifteen-year sentence.

¶ 4. On April 2, 2009, Smith' filed a pro se “Petition for Writ of Habeas Corpus.” On April 22, 2009, the circuit court denied the motion, finding as follows:

This matter is before the [cjourt on Smith’s pro se “Petition for Writ of Ha-beas Corpus,” filed April 2, 2009. On August 23, 2002, Terrance Smith entered a plea of guilty to the charged [sic] of sexual battery. He was sentenced to fifteen (15) years, twelve (12) suspended, three (3) to serve, followed by three (3) years of post[-]release supervision. Smith served his three years and began his post[-]release supervision. On March 9, 2007, his probation was revoked and he is now serving his suspended twelve (12) year sentence. Smith has previously attempted to challenged [sic] his plea and sentence in two actions, [ AXXXX-XX-XXX ] and [ AXXXX-XX-XX ] filed pursuant to the Post[-]Conviction Collateral Relief Act. He is not entitled to further relief.
Pursuant to Mississippi] Code Annotated section] ll-43-3[,][w]rits of [h]abeas [c]orpus shall not apply to any collateral relief sought by any person following his conviction of a crime. The principal function of a writ of habeas corpus is to test the legality of detention prior to conviction. Miss.Code Ann. § 11-43-1, Nelson v. Tullos, 323 So.2d 539 (Miss.1975). The relief sought by Mr. Smith is, on its face[,] not within the scope of relief available.

(Footnote omitted). In the footnote, the circuit court noted that Smith’s appeal from his first attempt at post-conviction relief was dismissed by this Court in January 2009. Neither of Smith’s prior motions for post-conviction relief are contained in the record before us.

¶ 5. Regardless of the fact that the prior motions are not in the record, Smith states in his brief that after his probation was revoked, he “next filed two (2) separate post-conviction motions, which were denied .... ” Therefore, we find, from Smith’s own statements and from the circuit court’s findings, that Smith previously filed two motions for post-conviction relief, which were denied. At least one of those denials was appealed, but the appeal was dismissed for Smith’s failure to file an appellate brief. There is no indication that the other denial was ever appealed.

116. In the present case, Smith filed a motion requesting that he be allowed to supplement the record with DNA test results. The motion was denied by the Mississippi Supreme Court on August 14, 2009.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. In reviewing a denial of a motion for post-conviction relief, our supreme court has explained our standard of review as follows: “When reviewing a lower court’s decision to deny a petition for post[-]conviction relief[,] [an appellate court] will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised[,] the applicable standard of review is de novo.” Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008) (citations omitted).

¶ 9. Although Smith did not style his 2009 petition as a motion for post-conviction relief, we find that the motion should have been treated as such. Mississippi Code Annotated section 99-39-3(1) (Rev. 2007) states that part of the purpose of Mississippi’s post-conviction-relief statutes is to “streamline and clarify the rules and statutes pei’taining to post-conviction-collateral-relief law and procedures.” The same provision explicitly states that:

Specifically, this article repeals the statutory writ of error coram nobis, supersedes Rule 8.07 of the Mississippi Uniform Criminal Rules of Circuit Court Practice and abolishes the common law writs relating to post-conviction collateral relief, including by way of illustration but not limitation, error coram nobis, error coram vobis, and post-conviction habeas corpus, as tuell as statutory post-conviction habeas coipus. The relief formerly accorded by such writs may be obtained by an appropriate motion under this article.

Id. (emphasis added). The provision, however, states that “[t]he enactment of this article does not affect any pre-conviction remedies.” Id. We assume that this is what the circuit court was referring to when it stated that “[t]he principal function of a writ of habeas corpus is to test the legality of detention prior to conviction.” However, Smith’s 2009 petition was clearly not challenging any pre-conviction incarceration. Therefore, the motion should have been treated as one for post-conviction relief.

¶ 10. Regardless, Smith’s motion is procedurally barred as a successive writ. As we have already discussed, the petition for habeas corpus relief was Smith’s third attempt to receive post-conviction relief. According to Mississippi Code Annotated section 99-39-23(6) (Supp.2009), a denied motion for post-conviction relief acts as “a bar to a second or successive motion.... ” The section lists several exceptions; however, Smith’s petition does not fall under any of those exceptions. Accordingly, we find that Smith’s third motion for post-conviction relief, which was styled as a petition for habeas corpus relief, is procedurally barred.

¶ 11. Finally, we note that, even if Smith’s petition were not barred as a successive writ, we would still find no merit to his claims on appeal. Smith contends that the circuit court should not have accepted his guilty plea without first reviewing the DNA test results; Smith contends that the test results showed that he was not the donor of the DNA that was recovered from the victim in his case. No test results are contained in the record before us; therefore, we cannot find any merit to such a contention. As for Smith’s contention that the indictment that charged him was deficient for failing to include a statute, we find that assertion wholly without merit. The indictment, in fact, contained the statute that Smith was being charged under. That it did not do so in the charging language is not sufficient to invalidate the indictment. Therefore, even if Smith’s petition were not procedurally barred, there would be no merit to his remaining claims.

¶ 12. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING THE PETITION FOR WRIT OF HABEAS CORPUS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.

      . On January 5, 2009, this Court issued a mandate in case no. 2008-CP-01331-COA, dismissing an appeal from a denial of post-conviction relief that had been filed by Smith in trial cause no. A-2401-07-43 7. The mandate was issued due to Smith's failure to file an appellate brief.

      . Although this did not form the reason for the circuit court's denial of Smith's 2009 petition, it is well established that an appellate court may "affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason for that result.” Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993) (citing Stewart v. Walls, 534 So.2d 1033, 1035 (Miss.1988)).


author: GRIFFIS, J.,

text:
    Thomas E. DAVID a/k/a Thomas Eugene David, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01593-COA.
    Court of Appeals of Mississippi.
    March 2, 2010.

      B. Brennan Horan, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Thomas David was found guilty of aggravated assault in violation of Mississippi Code Annotated section 97 — 3—7(2)(a) (Rev.2004). David argues that his case should be reversed because: (1) the trial court erred in allowing Joanne Hancock (Joanne) to testify; (2) jury instruction D-5 was denied; and (3) his sentence was excessive. We find no error and affirm.

FACTS

¶ 2. Approximately 6:00 p.m. on October 21, 2006, Will Hancock (Will) was driving his tractor down Wall Hill Road transporting hay to feed his horses. A car driven by Thomas David came up behind Hancock and passed Hancock. David’s car nearly hit an oncoming car.

¶ 3. After this near miss, David stopped his car in the road, and Will pulled his tractor to the side of the road near David’s car. David got out of his ear and began cursing at Will. Will got down off his tractor, and David aimed his semi-automatic pistol at Hancock. With his hand on the trigger, David said; “Back off, [expletive].” Will stood there for a minute and then turned around to get back onto his tractor. He reversed the tractor a few feet, wrote down David’s tag number, and then drove away.

¶ 4. Will called the police. He gave a statement to the police about the incident. On October 22, 2006, the police arrested David and charged him with aggravated assault.

¶ 5. In August 2007, prior to David’s trial, Joanne, Will’s wife, met David. Joanne’s and David’s recollections of that day differ. Joanne testified that in August 2007, at around 7:40 a.m., while Joanne was taking her daughter to school, David pulled his car next to her car while each car was traveling at approximately forty miles per hour. Joanne was worried that she had done something wrong while driving, and she rolled down her window. David then said: “Are you kin to the Han-cocks?” She replied, we are the Hancocks. David l’esponded: “Well, you guys have caused me a lot of grief, and it will not go unnoticed.”

¶ 6. In contrast, David testified that, in August 2007, he was driving down Wall Hill Road and saw a woman standing at a mailbox. David stopped his car behind her driveway. David asked her who she was and then told her that he would not forget what had happened.

¶ 7. However, David testified that he was referring to an old grave of a Hancock ancestor which is located on his property. Instead of threatening Joanne and her family, David testified that he really meant to say that, because of the October incident and its aftermath, he would no longer keep the Hancock grave looking nice on his property. Before driving away, he wrote down the make, model, and tag number of Joanne’s car.

¶ 8. The jury found David guilty of aggravated assault. David was sentenced to fifteen j^ears in the custody of the Mississippi Department of Corrections with five years of post-release supervision.

ANALYSIS

1. Whether the trial court erred in allowing Joanne to testify.

¶ 9. David contends that Joanne’s testimony was not relevant, and its prejudicial effect outweighed its probative value in violation of Rule 403 of the Mississippi Rules of Evidence. David argues that when evidence of other crimes or bad acts are offered as evidence under Mississippi Rule of Evidence 404(b), such evidence may not be admitted unless it also passes the so-called Rule 403 filter. Rule 404(b) provides that:

[e]viclence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 10. When a trial court determines that potentially prejudicial evidence possesses sufficient probative value, it is within that court’s sound discretion whether or not to admit the evidence, “since Rule 403 does not mandate such an exclusion but rather states that the evidence may be excluded.” Baldwin v. State, 784 So.2d 148, 156(¶ 27) (Miss.2001). “The task of an appellate court in reviewing such a determination is not to conduct its own de novo Rule 403 balancing, but simply [to] determine whether the trial court abused its discretion in weighing the factors and in admitting or excluding the evidence.” Jones v. State, 904 So.2d 149, 152(117) (Miss.2005).

¶ 11. David’s counsel moved the court to exclude any mention of events which occurred after October 21, 2006; this included David’s August 2007 encounter with Joanne. Although there was no on-the-record analysis, the trial court heard extensive arguments from both sides outside of the jury’s presence.

¶ 12. David’s counsel argued that Joanne’s testimony about an incident which occurred months after the assault charge had no relevance to the case and that its prejudicial effect outweighs its probative value. Specifically, his counsel stated, “regardless of what he did to her, if he didn’t commit a ci’ime for her to file charges against him on at that time, that’s absolutely no[t] relevan[t] to her testimony to come in and say Mr. David scare[d] the behoozies [sic] out of me in my driveway one day.”

¶ 13. The prosecution argued that Joanne’s testimony was admissible because David planned to argue self-defense, and “his contact with [Joanne] after the fact, coupled with the statement that he made to her, shows that he was not in fear of [Will]. It undermines his self-defense claim.”

¶ 14. The trial court found that the probative value of the testimony was not substantially outweighed by the prejudicial effect Joanne’s testimony might have on the jury.

¶ 15. Generally, evidence of other crimes or bad acts is inadmissible. Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995). However, other bad acts or crimes is admissible to show intent. M.R.E. 404(b). Here, the evidence was offered to show David’s state of mind on October 21, 2006. After reviewing the record, we are satisfied that the trial court weighed the probative value of this evidence against the potential for undue prejudice. The trial court did not abuse its discretion. We find that this issue is without merit.

2. Whether the trial court erred when it denied jury instruction D-5.

¶ 16. David contends that jury instruction D-5 on self-defense should have been included based on the disparity in size between Will and David and the testimony at trial. The State contends that David’s theory of self-defense was already covered in jury instruction D-2 and that the denied instruction was an improper comment on the evidence relating to the alleged disparity in the size of the defendant and Will.

¶ 17. David fails to cite any authority to support his claim. The supreme court held, “we remain steadfast to rule that failure to cite any authority may be treated as a procedural bar, and we are under no obligation to consider the assignment.” Turner v. State, 721 So.2d 642, 648(¶ 20) (Miss.1998) (quoting McClain v. State, 625 So.2d 774, 781 (Miss.1993)).

¶ 18. Notwithstanding the procedural bar, David’s argument also fails on the merits. David claims that the evidence supported a jury instruction for self-defense and since jury instruction D-5 was denied, the trial court did not properly instruct the jury on his theory of self-defense.

¶ 19. The supreme court has held:

To make an assault justifiable on grounds of self-defense, danger to the defendant must be either actual, present and urgent, or defendant must have reasonable grounds to apprehend design on the part of the victim to kill, or to do him some great bodily harm, and, in addition, there must be imminent danger of such design being accomplished.

Anderson v. State, 571 So.2d 961, 963 (Miss.1990).

¶ 20. Here, jury instruction D-5, which was refused, stated:

The Court instructs the jury that if you believe from the evidence that Mr. Hancock was a much larger and stronger person than that of Defendant, and was capable of inflicting great and serious bodily harm upon the Defendant with his hands, and that the Defendant had reason that he was there in danger of such harm at the hands of Mr. Hancock, and used a pistol with which he pointed at Mr. Hancock, to protect himself from such harm, then the Defendant was justified, and your verdict shall be “not guilty3’ even though Mr. Hancock may not have been armed.

However, jury instruction D-2, which was given to the jury, stated:

The Court instructs the jury that to make an assault justifiable on the grounds of self-defense, the danger to the Defendant, Thomas Eugene David, must be either present and urgent, or the Defendant must have reasonable grounds to apprehend design on the part of the victim, Mr. Hancock, to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the Defendant acts.

¶ 21. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole.” Wess v. State, 926 So.2d 930, 934(¶ 20) (Miss.Ct.App.2005). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (citing Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002)). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Hager v. State, 996 So.2d 94, 97(¶ 9) (Miss.Ct.App.2008) (citing Poole v. State, 826 So.2d 1222, 1230(¶ 27) (Miss.2002)).

¶ 22. We find that jury instruction D-2 properly instructed the jury on David’s theory of self-defense. The proposed jury instruction D-5 was another instruction on the theory of self-defense and was, therefore, cumulative. Accordingly, this issue is without merit.

3. Whether David’s sentence is excessive.

¶ 23. David argues that his sentence of fifteen years with five years of post-release supervision was excessive. He offers only his bare assertion and does not cite any authority.

¶ 24. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Beamon v. State, 9 So.3d 376, 380(¶ 11) (Miss.2009) (quoting Wall v. State, 718 So.2d 1107, 1114(1129) (Miss.1998)). Mississippi Code Annotated section 97-3-7(2)(a) provides that the penalty for aggravated assault is imprisonment for not less than one year or for not more than twenty years.

¶ 25. Because David’s sentence was within the statutory guidelines, this Court has no basis to regard David’s sentence as excessive. This issue is without merit.

¶ 26. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

LEE AND MYERS, P.JJ., BARNES, ISHEE, ROBERTS, AND MAXWELL, JJ., CONCUR. KING, C.J., AND IRVING, J., CONCUR IN RESULT ONLY.


author: ISHEE, J.,

text:
    Paul TAYLOR, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CA-02005-COA.
    Court of Appeals of Mississippi.
    March 9, 2010.
    See also, 984 So.2d 372.

      Charles E. Miller, McComb, attorney for appellant.
    Office of the Attorney General by Deirdre McCrary, Jackson, attorney for appel-lee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In March 2005, Paul Taylor pleaded guilty in Tate County Circuit Court to three counts of the sale of morphine. The circuit court sentenced him to nineteen years in the custody of the Mississippi Department of Corrections (MDOC) with ten years suspended and nine years to serve. After his sentence, Taylor filed a petition for post-conviction relief with the circuit court. The petition was dismissed. Aggrieved by the dismissal, Taylor appeals. He asserts the following allegations of error:

I. The actions of Taylor’s trial court attorney constituted ineffective assistance of counsel.
II. The trial court erred by accepting Taylor’s guilty pleas.
III. The trial court should have conducted a hearing on this matter to determine Taylor’s innocence.
IV. The trial court erred in its failure to grant Taylor an evidentiary hearing.
V. Taylor’s sentence was excessive and unconstitutional.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

2. Taylor was arrested and charged with the sale of morphine in both Tate and Panola Counties. Taylor was approached by an undercover agent who was looking to buy morphine. Taylor, who has twice survived colon cancer, claimed that his condition required the use of morphine for pain management. On March 24, 2005, Taylor, who stated that he was satisfied with his attorney, pleaded guilty to three counts of the sale of morphine.

DISCUSSION

¶ 3. First, Taylor takes issue with the actions of his trial attorney. Taylor argues that his trial attorney did not address the issues of jurisdiction, Taylor’s mental condition, severance, and other issues. Taylor points to the two-part test from Strickland, to determine the standard of review for resolving whether counsel was effective. However, Taylor offers no evidence to support his assertion that his trial attorney was ineffective.

¶ 4. Claims of ineffective assistance of counsel are reviewed by using the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In order to prevail on a claim of ineffective assistance of counsel [the defendant] has the burden of proof to show by a preponderance of the evidence that (1) counsel’s performance was deficient, and (2) that the deficiency did, in fact, prejudice the defendant.” Moreno v. State, 967 So.2d 701, 703 (¶ 4) (Miss.Ct.App.2007) (citations omitted). “A defendant who pleads guilty to a crime is ‘prejudiced’ by his counsel’s erroneous advice if he would have insisted on going to trial if he had been eoi’reetly informed.” Reeder v. State, 783 So.2d 711, 718 (¶ 28) (Miss.2001) (citation omitted). In determining whether the first prong of Strickland concerning counsel’s performance has been satisfied, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....” Strickland,, 466 U.S. at 689, 104 S.Ct. 2052. The second prong of the Strickland test requires that Taylor prove prejudice by showing that there was a reasonable probability, that but for counsel’s errors, the trial court’s result would have been different. Id. at 699, 104 S.Ct. 2052. Whether the prongs of this test are met is determined by an examination of the totality of the circumstances. Id.

¶ 5. Taylor stated under oath that he was satisfied with his attorney and that he was not coerced into entering his guilty pleas. Taylor has failed to demonstrate that his counsel’s performance was deficient in any way. He has not proven ineffective assistance of counsel based on the requirements of Strickland,; therefore, this issue is without merit.

¶ 6. Second, Taylor takes issue with the trial court’s accepting his guilty plea. Taylor contends that there was no evidence that he had committed the crime of the sale of morphine; therefore, no factual basis existed for his guilty pleas. However, Taylor stated under oath that he was not coerced into entering his guilty pleas and that he understood what he was pleading to. Therefore, this issue is without merit.

¶ 7. Third, Taylor contends that his constitutional rights have been violated, resulting in his guilty pleas. Taylor argues that he is innocent and that in light of his mental condition, a hearing should have been conducted on this matter to determine his actual innocence. Taylor has provided no evidence to offer proof of his actual innocence. He further failed to provide any proof of his incompetency. During his hearing with the trial court, Taylor’s medications and his mental illness were discussed; however, nothing was ever mentioned of Taylor’s being incompetent. Since Taylor offered no medical evidence that he was incompetent to stand trial, this issue lacks merit.

¶ 8. Fourth, Taylor takes issue with the trial court’s refusal to grant him an eviden-tiary hearing. Taylor points to Myers v. State, 583 So.2d 174 (Miss.1991) to support his assertion. However, Taylor offers no proof of error by the trial court on this issue. Thus, this issue is also without merit. Arguments advanced on appeal must “contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6). “Failure to comply with [Mississippi Rule of Appellate Procedure] 28(a)(6) renders an argument proeedurally barred.” Birrages v. Ill. Cent. R.R., 950 So.2d 188, 194 (¶ 14) (Miss.Ct.App.2006). Assuming, for the sake of discussion, that Taylor was not proeedurally barred, we would find no merit to this argument.

¶ 9. Lastly, Taylor contends that his sentence was excessive and unconstitutional. Taylor argues that his sentence is cruel and unusual punishment under the Eighth Amendment to the United States Constitution and disproportionate to the crimes charged. Taylor has failed to offer any evidence to show any gross disproportion in his sentence. Taylor’s sentences were within the statutory guidelines for the crime for which he entered a guilty plea. The sentence imposed by the trial court was within the jurisdictional limits. “As a general rule, sentencing is purely a matter of trial court discretion so long as the sentence imposed lies within the statutory limits.” Taylor v. State, 741 So.2d 960, 962 (¶ 10) (Miss.App.1999). “However, when a sentence is grossly disproportionate to the crime committed, the sentence is subject to attack on grounds that it violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” Id.

¶ 10. In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the United States Supreme Court articulated a three-prong test for evaluating proportionality. The elements include: “(1) the gravity of the offense and the harshness of the penalty; (2) comparison of the sentence with sentences imposed on other criminals in the same jurisdiction; and (3) comparison of sentences imposed in other jurisdictions for commission of the same crime with the sentence imposed in this case.” Id. at 290-91, 103 S.Ct. 3001. In the present case, Taylor has failed to provide any statistics or data establishing that others convicted in the same or other jurisdictions of similar crimes are in fact given lighter sentences. Thus, Taylor’s final issue is without merit.

¶ 11. Finding no error, we affirm.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . Taylor was indicted on four counts of the sale of morphine. Three of those indictments were from Panola County, Mississippi. One of the Panola County indictments was remanded. Taylor pleaded guilty to the three remaining counts in Tate County.


author: MAXWELL, J.,

text:
    William SANDERS, Appellant v. Benjamin WISEMAN, M.D., Appellee.
    No. 2008-CA-02125-COA.
    Court of Appeals of Mississippi.
    March 9, 2010.

      D.L. Jones, Jr., attorney for appellant.
    Robert K. Upchurch, Tupelo, Joshua Shey Wise, attorneys for appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. William Sanders filed a medical-malpractice action against Dr. Benjamin Wise-man in the Circuit Court of Lee County. After receiving discovery responses, Dr. Wiseman moved for summary judgment. He alleged the plaintiff had failed to produce sufficient expert opinions to establish a prima facie medical-negligence claim. Following a hearing, the circuit court determined no genuine issues of material fact existed and granted summary judgment in favor of Dr. Wiseman. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 14, 2005, Dr. Wiseman performed surgery on Sanders to implant a spinal-cord stimulator. Approximately eight months later, Dr. Wiseman again performed surgery to remove the stimulator. On November 13, 2007, Sanders filed a medical-malpractice lawsuit against Dr. Wiseman. He alleged Dr. Wiseman negligently performed the surgeries to implant and remove the stimulator. Sanders also claimed one of the leads of the stimulator broke when Dr. Wiseman removed it.

¶ 3. During the discovery process, Dr. Wiseman propounded requests for admission, which asked Sanders to admit he did not have a qualified medical expert to testify that Dr. Wiseman was negligent. Sanders responded with a denial. Then, Dr. Wiseman, through interrogatories, requested the name of each expert witness Sanders expected to testify at trial. He also inquired about the subject matter on which each expert was expected to testify, the substance of the facts and opinions to which each expert was expected to testify, and a summary of the grounds for any opinions. See M.R.C.P. 26(b)(4)(A)(i). Sanders responded to the interrogatories stating that he had not yet identified an expert witness but would supplement his responses once a determination had been made.

¶ 4. After receiving Sanders’s discovery responses, Dr. Wiseman moved for summary judgment. Sanders responded and attached the sworn affidavit of Dr. Thomas West. Dr. Wiseman then filed a reply motion along with a motion to strike Dr. West’s affidavit. Shortly thereafter, Sanders filed another response, in which he argued Dr. West’s affidavit was sufficient to survive summary judgment. Sanders then supplemented his earlier interrogatory answers and identified Dr. West as his expert. However, Sanders did not answer the interrogatories that sought information about Dr. West’s proposed opinions, nor did Sanders provide any indication of Dr. West’s expected testimony.

¶ 5. The circuit court held a hearing on Dr. Wiseman’s summary judgment motion. After hearing arguments from both parties, the circuit court granted both Dr. Wiseman’s motion to strike and his motion for summary judgment. The circuit court entered a written judgment reflecting its decision.

¶ 6. On appeal, Sanders argues the circuit court erred in (1) striking the affidavit of Dr. West and (2) granting Dr. Wise-man’s motion for summary judgment.

STANDARD OF REVIEW

¶ 7. A trial court’s decision to grant or deny a motion to strike an affidavit will not be reversed unless there has been an abuse of discretion. Kilhullen v. Kansas City S. Ry., 8 So.3d 168, 172 (¶ 8) (Miss.2009); Smith ex rel. Smith v. Clement, 983 So.2d 285, 288, 290 (¶¶ 11, 19) (Miss.2008). When reviewing the grant or denial of a motion for summary judgment, appellate courts conduct a de novo review. Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002) (citation omitted).

DISCUSSION

I.Dr. West’s Affidavit

¶8. Sanders argues Dr. West’s expert affidavit contained a sufficient factual basis and indication of his proposed testimony to prevent summary judgment. Dr. West’s affidavit contained the following affirmations:

1. Affiant is a physician and general surgeon, licensed to practice medicine in the [sjtate of Tennessee.
2. I have reviewed the medical records of William Sanders, the Plaintiff in this action, in connection with the surgery to implant the spinal-cord stimulator and the surgery to remove the spinal-cord stimulator.
3. In the process of removing the spinal-cord stimulator, the device broke.
4. Based upon my review of the case, it is my professional opinion that Dr. Benjamin Wiseman deviated from the standard of care in his removal of the spinal-cord stimulator from William Sanders, and that the deviation from the standard of care proximately caused the injuries sustained by William Sanders.

A. Admissibility of Expert Opinion

¶ 9. The admissibility of an expert opinion is governed by Mississippi Rule of Evidence 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the ease.

Under Rule 702, a witness is required to be qualified by virtue of knowledge, skill, experience, or education, and the witness’s scientific, technical, or other specialized knowledge must assist the trier of fact. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 35 (¶ 7) (Miss.2003). Rule 702 “does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of knowledge.” Id. (quoting M.R.E. 702 cmt.).

¶ 10. Mississippi has adopted the federal standard set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and as modified in Kumho Tire Company v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), for analyzing the admissibility of expert testimony. McLemore, 863 So.2d at 35 (¶ 5). The Daubert standard is a two-pronged inquiry: “First, the [trial] court must determine that the expert [opinion] is relevant — that is, [it] must ‘assist the trier of fact’.... Next, the trial court must determine whether the proffered [opinion] is reliable.” Id. at 38 (¶ 16). Trial judges are “ ‘gate keepers’ with the responsibility of determining, in the first instance, whether an expert’s proffered opinion is both relevant and reliable.” Clement, 983 So.2d at 289 (¶ 14) (citation omitted); see also M.R.E. 702 cmt. In performing this gate-keeping responsibility, trial judges should examine the criteria set forth in Rule 702. Clement, 983 So.2d at 289 (¶ 14).

¶ 11. Additionally, DaubeH provides a list of factors for assessing reliability, including:

whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within [the] relevant scientific community-

McLemore, 863 So.2d at 37 (¶ 13) (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786). This list of factors is not exhaustive, nor do each of the factors always apply. Id. at 36-37 (¶ 13) (citing Kumho Tire, 526 U.S. at 151, 119 S.Ct. 1167). This analysis is focused “solely on principles and methodology, not on the conclusions they generate.” Id. (quoting Daubert, 509 U.S. at 595, 113 S.Ct. 2786). The party offering an expert’s opinion must show that the opinion is based on sufficiently reliable scientific principles. See id. at 36 (¶ 11).

B. The Affidavit

¶ 12. An affidavit offered in support of or in opposition to a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.” M.R.C.P. 56(e).

¶ 13. In addition, “[a]n expert’s opinion must be supported by appropriate validation^] i.e., goqd grounds, based on what is known.” Davis v. Christian Bhd. Homes of Jackson, 957 So.2d 390, 410 (¶ 47) (Miss.Ct.App.2007) (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786) (internal quotation marks omitted). “The facts upon which the expert bases his opinion or conclusion must permit reasonably accurate conclusions as distinguished from mere guess or conjecture.” McLemore, 863 So.2d at 35 (¶ 8) (citation omitted). Thus, an expert opinion based merely on “subjective beliefs or unsupported speculation” is insufficient, and is properly excluded. Id. at 36 (¶ 11). Affidavits consisting of nothing more than conclusory statements should be disregarded by the trial court. Estate of Deiorio ex rel. Deiorio v. Pensacola Health Trust, Inc., 990 So.2d 804, 806-07 (¶¶ 9-10) (Miss.Ct.App.2008); Davis, 957 So.2d at 409-10 (¶¶ 45-47). Cf. Hubbard v. Wansley, 954 So.2d 951, 965-66 (¶ 48) (Miss.2007) (disapproving of an “almost wholly conclusory” affidavit).

¶ 14. For example, in Clement, the supreme court addressed whether the circuit court erred in granting the defendant’s motion to strike an expert’s affidavit. The case involved a claim by Amory School District (Amory) against M & W Gas Company (M & W) arising out of an explosion on a school bus. Clement, 983 So.2d at 287 (¶ 5). The accident occurred about fourteen years after M & W had installed propane fuel systems in Amory’s school busses. Id. at 286-87 (¶¶ 3, 5). M & W moved for summary judgment. It argued Amory had not sufficiently shown the bus’s propane fuel system was in the same condition as it was when installed by M & W. Id. at 287 (¶ 6). Amory’s response included an affidavit from its expert, who claimed: (1) the accident was caused by a leak in the copper tubing in the fuel system, and (2) the copper tubing in the bus at the time of the accident was the same tubing improperly installed by M & W fourteen years earlier* Id. M & W then responded with its own expert affidavit challenging Amory’s expert. Id. at (¶ 7). M & W’s expert argued essentially that there was no foundation in science for Amory’s expert’s conclusions. Id. Amory submitted no further evidence supporting its expert’s opinions. Id. at 289-90 (¶ 18). The supreme court held that the circuit court acted, within its discretion in finding Amory’s expert’s affidavit should be stricken. Id. at 290 (¶ 19).

¶ 15. In a recent medical-malpractice decision, Hill v. Mills, 26 So.3d 322 (Miss.2010), the supreme court further elaborated on the analysis to be applied in the context of battling experts. The supreme court explained that one expert’s mere disagreement with the other side’s expert creates a fact issue for the jury. Id. at n. 7 (¶¶ 28-30, 34, 41). In contrast, where the defendant’s expert claims the plaintiffs expert’s opinions are not scientifically sound, the plaintiffs expert cannot then stand idly by, but must present at least some evidence showing acceptance of the opinion within the scientific community. Id. Although Hill and Clement are both instructive, we are not faced with two battling experts. Nor are we confronted with a situation where the reliability of an expert’s opinion is attacked solely on the basis that his opinion is not accepted within the scientific community. Rather, our inquiry here turns on whether Dr. West’s affidavit is insufficient because it is unsubstantiated and conclusory.

¶ 16. We addressed a similar expert affidavit in Davis. The plaintiff, Bernice Davis, filed a wrongful-death case with an underlying premises-liability claim. Specifically, Davis contended the defendant apartment complex’s failure to provide security guards and adequate lighting caused her son’s shooting death, which occurred in the complex’s parking lot. Davis, 957 So.2d at 408 (¶ 43). The only evidence of proximate cause was found in the plaintiffs expert affidavit. Id. The proposed expert, a Jackson police officer, claimed security guards would have prevented the killer from loitering and starting a fight with the deceased in the paridng lot. Id. Further, the officer attested that, based on his experience in law enforcement, poor lighting increases the chance of criminal activity. Id. Thus, he contended the lack of adequate lighting contributed to the shooting. Id. We found this factual basis insufficient to support the officer’s conclusions, and held the circuit judge did not err in disregarding the affidavit in granting summary judgment in favor of the defendant. Id. at 409-10 (¶¶ 45, 47).

¶ 17. Here, Dr. West’s affidavit essentially contains the following assertions: (1) he was a physician and general surgeon, licensed in Tennessee; (2) he had reviewed the plaintiffs medical records pertaining to the surgeries implanting and removing the spinal-cord stimulator; (3) the device broke during the surgery; and (4) Dr. Wiseman’s deviation from the standard of care proximately caused Sanders’s injuries.

¶ 18. There is little question that Dr. West’s allegations are light on substance. The affidavit contains no information regarding the field in which Dr. West was expected to testify. It also lacks any articulation of the applicable standard of care. There is also an absence of underlying facts explaining how Dr. Wiseman allegedly deviated from the standard of care. Furthermore, the affidavit does not explain how Dr. West, a general surgeon, is qualified to testify about the standard of care applicable to an anesthesiologist and pain-management specialist such as Dr. Wiseman. We find this affidavit contains nothing more than broad conclusions, unsupported by an adequate factual basis.

¶ 19. The supreme court has explained that “when an expert’s opinion is challenged, the party sponsoring the expert’s challenged opinion [must] be given a fair opportunity to respond to the challenge. The provision of a fair opportunity to respond is part of the trial court’s gate[-]keeping responsibility.” Kilhullen, 8 So.3d at 174 (¶ 13) (quoting Clement, 983 So.2d at 290 (¶ 19)).

¶ 20. Dr. Wiseman moved for summary judgment on August 18, 2008, arguing Sanders had not produced the expert opinions required to prove his medical-negligence claim. After Sanders responded, Dr. Wiseman filed his motion to strike on October 15, 2008. In this motion, Dr. Wiseman argued that Dr. West’s affidavit was deficient because it was conclusory and contained no factual support. Multiple authorities were cited in support of Dr. Wiseman’s position. Sanders then responded by simply defending Dr. West’s affidavit and arguing it was sufficient. The record indicates the only further action taken by Sanders after Dr. Wiseman’s challenge to the affidavit was serving supplemental answers to interrogatories. These answers merely identified Dr. West as the plaintiffs expert and contained a copy of Dr. West’s curriculum vitae.

¶ 21. After hearing from both sides on November 13, 2008, the trial judge found:

The purported expert affidavit of Dr. West is insufficient under Mississippi Rule[] of Evidence 702(1) for several reasons.
It does not provide the field in which Dr. West is expected to testify. It fails to establish that Dr. West knows the ... standard of care applicable to Dr. Wise-man in this case, an anesthesiologist, in the removal of a spinal-cord stimulator. The affidavit does not establish or define the applicable standard of care, but only [contains] the conclusory statement that Dr. Wiseman breached the standard of care.
The opinion of Dr. West in his affidavit is totally conclusory and fails to state facts to back it up. Moreover, the affidavit of Dr. West does not establish that he is qualified by his education, training, or experience, or that he has specialized knowledge to render an opinion in this particular case.

¶ 22. We agree. Sanders had ample time and a fair opportunity to submit additional evidence of the reliability of the opinions offered in Dr. West’s affidavit. Nevertheless, he failed to provide any evidence that Dr. West’s unsubstantiated contentions were based on sound methods and principles. Under these circumstances, we find the trial court did not abuse its discretion in striking Dr. West’s affidavit.

II. Summary Judgment

¶ 23. Sanders also argues the circuit court erred in granting Dr. Wiseman’s motion for summary judgment.

¶ 24. The trial court must grant a motion for summary judgment “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.” M.R.C.P. 56(c). Summary judgment is properly granted if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citing Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988)). In determining whether a trial court properly granted summary judgment, we view the facts “in the light most favorable to the nonmoving party.” Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999) (citation omitted).

¶ 25. To survive summary judgment, the nonmoving party must produce “significant probative evidence showing that there are indeed genuine issues for trial.” Borne, 12 So.3d at 570 (¶ 16) (quoting Price v. Purdue Pharma Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006)). Furthermore, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or [otherwise], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

¶ 26. A prima facie case for medical malpractice requires proof of the following elements:

(1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury;
(2) a failure to conform to the required standard; and
(3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.

Hubbard, 954 So.2d at 956-57 (¶ 12) (citation omitted). Generally, medical negligence can only be established by expert medical testimony that the defendant breached the standard of care. Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023, 1026 (¶ 9) (Miss.2000). Although an expert witness in a medical-negligence case is not typically required to practice the identical specialty as the doctor about whom the expert is providing an opinion, “[satisfactory familiarity with the specialty” is required. Hubbard, 954 So.2d at 957 (¶ 13).

¶ 27. The sole exception to medical-malpractice cases requiring expert testimony exists when a layperson “can observe and understand the negligence as a matter of common sense and practical experience.” Gatlin, 772 So.2d at 1026 (¶ 9) (citation omitted). This exception, often referred to as the “layman’s exception,” has regularly been applied to cases where physicians have left foreign objects in a patient’s body or given a patient the wrong medication. Smith ex rel. Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 181 (¶ 11) (Miss.2007) (citations omitted). However, our supreme court has recognized that application of this exception “not only to situations where there is blatant negligence but also to situations involving judgment calls made by professionals would be overly broad.” Id.

¶ 28. Here, we are not faced with a medical-malpractice claim within the common knowledge of laypersons. It is obvious a typical layperson, unassisted by expert testimony, would be unable to determine whether Dr. Wiseman failed to exercise reasonable care and skill in the surgical removal of the spinal-cord stimulator. Therefore, we find the “layman’s exception” does not apply, and Sanders was required to produce expert testimony to prove the elements of his medical-negligence claim against Dr. Wiseman.

¶ 29. As explained above, the circuit judge did not abuse his discretion in excluding Dr. West’s affidavit. Without Dr. West’s opinion, Sanders is unable to prove the elements of his medical-malpractice claim against Dr. Wiseman. Thus, Sanders failed to meet his burden to show the presence of genuine issues of material fact, and the circuit court properly granted summary judgment in favor of Dr. Wise-man.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. IRVING AND BARNES, JJ„ NOT PARTICIPATING.

      . Sanders also sued North Mississippi Medical Center (NMMC) and Does One through Five, alleging these defendants failed to provide proper care after the surgeries.

      . The record indicates that Sanders filed a products-liability action against the manufacturer of the spinal-cord stimulator prior to filing the present medical-malpractice action.

      . Pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, the circuit judge expressly found that there was no just reason for delay and directed that the judgment was final as to Dr. Wiseman.

      . A final mandate was issued in Hill on February 18, 2010.

      . We note that the curriculum vitae (CV) itself is not part of the record, but the supplemental discovery response indicates that it was attached. Even if a CV was attached as Sanders contends, the record would still be devoid of a sufficient factual basis to support Dr. West’s conclusions. The record also indicates Sanders included the same affidavit from Dr. West in his supplemental interrogatory answers.