author: RANDOLPH, Justice,

text:
    Eric Lewis WILLIAMS a/k/a E. Eric v. STATE of Mississippi.
    No. 2008-KA-00438-SCT.
    Supreme Court of Mississippi.
    Feb. 12, 2009.

      Benjamin Allen Súber, Leslie S. Lee, Gus Grable Sermos, Summit, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRAVES, P.J., RANDOLPH and PIERCE, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. Seventeen-year-old Eric Lewis Williams was indicted for capital murder, conspiracy to commit capital murder, aggravated assault, and conspiracy to commit aggravated assault. Following a jury trial in the Circuit Court of Pike County, Mississippi, Williams was found guilty on the counts of capital murder, aggravated assault, and conspiracy to commit aggravated assault. He was then sentenced to life without the possibility of parole in the custody of the Mississippi Department of Corrections (“MDOC”) for capital murder, to ten years for aggravated assault, and to five years for conspiracy to commit aggravated assault, all to run consecutively. Following denial of his post-trial motions, Williams filed notice of appeal.

FACTS

¶ 2. On January 27, 2007, Janice Bonds was at Williams’s trailer, along with her infant son and Alexander Hymes. According to Bonds, Hymes asked to borrow her black 2006 Chevy Malibu “to go to the store to get some cigarettes.” Bonds further testified that Hymes:

asked [Williams] to ride along with him. [Williams] refused to go at first. He was like, man, I don’t want to go to the store. So [Hymes] just kept on pressuring [Williams] ... to go to the store with him. So eventually [Williams] did decide to get up and go. So I gave [Hymes] the keys to go, and they went to the store.

¶ 3. Trish Minton was the store clerk at the MS Food Mart on Highway 48. According to Minton, Williams and Hymes entered the store and Hymes asked “to see a hat.” After showing the hat to Hymes, Minton testified that “[h]e said he didn’t have any money, but he wanted to look at them anyway. And [Williams] was in the back of the store.” While conversing with Hymes, Minton “asked him did he go to Southwest [Community College (‘Southwest’) ]. He said yes. And I asked him had he lost his ID, and he ... said yes.” Thereafter, Minton testified that she:

went around to get his ID for him. The guy that was at the back [of] the store [Williams] stuck a gun to my head and said, give me all the money. So I opened the register. When I opened the register, he shot the gun, and I went down to the floor. He got the money out of the register, and then he walked around, behind the counter where I was at....

According to Minton, she “asked [Williams] to please don’t shoot me because I was pregnant. He told me to shut up. So I just sat there. They were looking at some stuff behind the counter and went over to look at the hats.” At that time, James Serigny pulled up to the store in his truck and walked in. Minton testified that Serigny:

looked at me on the floor and he looked at them. Then he looked back at me and he walked to the back of the store. The one with the gun [Williams] followed him. And I didn’t see it, but the next thing I heard was a shot and [Serigny] falling on the floor. I didn’t look over or say anything at that time. I know [Hymes] was standing by the door, waiting for [Williams], The next thing I know, they were gone and I called 9-1-1.

Minton’s 911 call was received at 12:56 p.m.

¶4. At approximately 1:15 p.m., Detective Davis Haygood of the Pike County Sheriffs Department arrived at the crime scene, ten minutes after other officers first arrived. Minton informed Haygood that the video surveillance camera was operational at the time of the incident. Additionally, Haygood testified that Minton “advised that one of the defendants ... had come in previously, a couple days pri- or, and had left a [Southwest] ID, which was taken back during the [incident].”

¶ 5. Haygood then took Minton to Southwest “to try and attempt to identify the individual on the ID.” At Southwest, Hay-good testified that he:

received a phone call from Detective James Sparaeello, because when we were on the scene earlier, we had been talking about possible suspects and we had remembered that we had an attempted armed robbery at the Highway 24 BP, and also that Amite County had contacted us earlier in the month that they had ... a burglary on Irene Road, right along the Amite County line, where a .40 caliber gun had been stolen.[] During that time they had gave us some names of some possible suspects that we were looking at for the Highway 24 attempted robbery, and also the burglary. Detective Sparacello contacted them, was able to get the names back from them. We knew that one of the individuals went to [Southwest]. Detective Sparacello contacted me while I was there with [Minton] and gave me the name of [Hymes]. At that time, I asked the lady that was operating the computer to pull the photo up.... [A]s soon as it become full face, [Minton] stated, ... that’s him.

¶ 6. Hymes was subsequently arrested, his home was searched, and Sparacello obtained a written statement from him. Based upon Hymes’s written statement, Williams was arrested at his residence later that evening. Williams’s uncle, Henry Sibley, gave consent to search the trailer, during which Haygood testified that “the black hat ... we recovered in his bedroom ... matched the description of hats at the store where the armed robbery took place.” At the sheriffs department, Hay-good testified that he read Williams “his rights and waiver of rights, which he signed, stating that he understood both of those, I [then] conducted an interview with him.... ” According to Haygood:

[Williams] ... stated ... at first he did not know anything. Then we told him that we knew that he was involved. At that time, he then decided to tell us that, yes, he had committed the crime and had shot [Serigny], but did not want to give the identity of the other individual that was involved with him. It was not until we disclosed that [Hymes] had already given us a statement, that he made the determination to ... give us a detailed statement of what took place.

Williams’s “Statement Form,” signed at 12:36 a.m. on January 28, 2007, provided:

[l]ast night [Hymes] won’t [sic] to go hit some licks and showed me a gun. Then that next morning I got my girlfriend[’]s car and went to the store. I park at a gas pump and [Hymes] went in the store first then me. [Hymes] went to where the hats was and I want [sic] around the store, then I went to the first [sic] and told the women [sic] to open the resiger [sic] and [Hymes] got the money out and I shot at the women [sic]. Then I went to get a cap then a men [sic] walk in to the store and seen me and [Hymes’s] face and I got ñervos [sic] and shot the man, then went [sic] I was about to run out of the store [Hymes] point to the women [sic] telling me to shot [sic] her, but I didn’t. Then we got in the car and give [Hymes] back his gun and split [sic] the money, then I took him home then I went home and told my girlfriend what I did and I told her to go home.[]

¶ 7. On March 27, 2007, Williams and Hymes were indicted for capital murder, conspiracy to commit capital murder, aggravated assault, and conspiracy to commit aggravated assault. On January 22, 2008, the jury trial of Williams commenced. During the State’s case-in-chief, the video surveillance footage from MS Food Mart was played before the jury. Thereafter, Steve Byrd of the Mississippi Crime Laboratory was tendered and accepted as an expert “in forensic science, specializing in firearms and mark identification and examination.” After examining .40 caliber shell casings found at both the crime scene and around Price’s residence, Byrd concluded “that all these cartridge cases were fired from the same gun[,]” and that gun was consistent with the .40 caliber Smith & Wesson handgun reported stolen by Price. The pathologist who performed the autopsy on Serigny on January 28, 2007, was then tendered and accepted as an expert in the field of forensic pathology. Based upon the autopsy, he testified that:

[t]he entrance gunshot wound had one unusual characteristic to it — it had tattooing or unburned fragments of powder that were located predominately on the side and lower part of the entrance gunshot wound. And tattooing is indicative that the weapon was fired in close proximity to the decedent when fired.

He added that the “[clause of death I ruled as gunshot wound to the forehead, near contact, penetrating, producing cra-niocerebral trauma. The manner of death I ruled homicide.... ” The State then rested and Williams moved for a directed verdict, which motion was overruled by the circuit court. After Williams rested, without offering any witnesses, the jury found him guilty of capital murder, aggravated assault, and conspiracy to commit aggravated assault, and not guilty of conspiracy to commit capital murder. The sentencing order of the circuit court provided that Williams:

for ... his crime of Capital Murder (Count One), Aggravated Assault (Count [Three]), and Conspiracy to Commit the Crime of Aggravated Assault (Count [Four]) be sentenced ... into the custody of the [MDOC] for and during the space of life without the possibility of parole (Count One), ten (10) years on Count Three, and five (5) years on Count Four[,] with all counts running consecutively. [Williams] is ordered to pay full restitution as it may appear and all costs associated with this case and reimburse Pike County in the amount of $2,500.00 for court appointed attorney fees.

On February 1, 2008, Williams filed a “Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for a New Trial,” which was denied by the circuit court. Williams then filed timely notice of appeal.

ISSUES

¶ 8. This Court will consider:

(1) Whether the circuit court abused its discretion in admitting autopsy photographs of the victim.
(2) Whether Williams received ineffective assistance of counsel.

ANALYSIS

I. Whether the circuit court abused its discretion in admitting autopsy photographs of the victim.

¶ 9. The State offered two autopsy photographs of Serigny into evidence. According to the pathologist:

[o]ne shows the entrance gunshot wound with an AFBO calibrated ruler to document the size of the injury. The second shows the entrance gunshot wound again, without a calibrated ruler. And both show the tattooing, the small speckled areas — they look like pinpoint areas — of hemorrhage, located near the entrance gunshot wound.

Williams objected, contending that the photographs “serv[e] no useful purpose[,]” and that the “probative value is far outweighed by the danger of unfair prejudice.” The circuit judge disagreed and admitted the photographs, finding they were “probative of the manner of death, the proximity of the weapon to the victim, which was the subject of testimony, as well as the subject of the surveillance material which was shown.” The circuit judge added that the probative value of the photographs was “not outweighed by any danger of undue prejudiced” and that they were not “redundant in the sense of there’s no other evidence that presents this same thing, this same way.”

¶ 10. This Court has stated that: Mississippi Rule of Evidence 403 provides, in pertinent part, that 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 ... needless presentation of cumulative evidence.” Miss. R. Evid. 403 (emphasis added). “The admission of photographs is a matter left to the sound discretion of the trial judge and ... his decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion.'” Noe v. State, 616 So.2d 298, 303 (Miss.1993) (citing Gardner v. State, 573 So.2d 716 (Miss.1990)) (emphasis added). The discretion of the trial judge is “almost unlimited ... regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Noe, 616 So.2d at 303 (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). So long as a photograph “has probative value and its introduction serves a meaningful evidentiary purpose[,]” it may still be admissible despite being “gruesome, grisly, unpleasant, or even inflammatory.” Id. (citations omitted) .... “Photographs are considered to have evidentiary value in the following instances: (1) aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; (3) supplement or [clarify] witness testimony.” McIntosh v. State, 917 So.2d 78, 84 (Miss.2005) (quoting Spann v. State, 771 So.2d 883, 895 (Miss.2000)).

Dampier v. State, 973 So.2d 221, 230 (Miss.2008) (emphasis in original).

¶ 11. Williams contends that “the corpus delicti of the charges and identity of the deceased were clearly established and unchallenged.” As such, he maintains that “the gruesome testimony about the victim’s fatal injuries from [the pathologist] were more than sufficient to establish everything the [S]tate needed to prove in this case.” In Williams’s estimation, “there was not a legitimate reason here to display the gashed head of the victim.... The sole purposes of the [e]xhibits was to arouse the inherent human emotions of viewing the head of the victim.” Conversely, the State argues that the photographs were not gruesome insofar as they “focused only on the gunshot wound in [Serigny’s] forehead and did not contain a lot of unnecessary blood, brain matter or gore.” Moreover, the State asserts that the photographs “assisted the jury in understanding [the pathologist’s] testimony, as well as corroborating his testimony.”

¶ 12. This Court finds that by supplementing the pathologist’s testimony, the photographs have evidentiary value. See McIntosh, 917 So.2d at 84 (quoting Spann, 771 So.2d at 895). As the circuit judge stated, the photographs were probative as to “the manner of death” and “the proximity of the weapon to the victim[.]” See Howard v. State, 785 So.2d 297, 301 (Miss. Ct.App.2001) (“[t]he photographs assisted the jury in understanding [the pathologist’s] testimony, as well as confirming the information that was being provided by him.”). Furthermore, as in Dampier, this Court finds that “the trial court’s burden was substantially lessened, as the photographs failed to exhibit elements of gruesomeness.” Dampier, 973 So.2d at 230. Cortbpare to McNeal v. State, 551 So.2d 151 (Miss.1989) (solitary instance of photographs being held prejudicial involving a close-up photograph of a partly decomposed, maggot-infested skull). In this Court’s estimation, “[w]hile the photographs are not pleasant, they are not so gruesome, hideous, and nauseating as to be inflammatory and appeal to the passion and prejudice of the jury.” Hewlett v. State, 607 So.2d 1097, 1102 (Miss.1992) (citing Willie v. State, 585 So.2d 660, 674 (Miss.1991)). In sum, the circuit court properly applied the test of Mississippi Rule of Evidence 403 to the photographs, determining that their probative value was “not outweighed by any danger of undue prejudice.” Moreover, the circuit court noted the “meaningful evidentiary purpose and probative value” of the photographs. Dampier, 973 So.2d at 230. Therefore, this Court concludes that the circuit court did not abuse its discretion in admitting the photographs. See Noe, 616 So.2d at 303. Accordingly, this issue is without merit.

II. Whether Williams received ineffective assistance of counsel.

¶ 13. This Court has stated that:

[t]he test to be applied in cases involving alleged ineffectiveness of counsel is whether counsel’s over-all pei'formance was (1) deficient and if so, (2) whether the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden is on the defendant to demonstrate both prongs. Leatherwood v. State, 473 So.2d 964, 968-69 (Miss.1985). This Court adopted the Strickland test in Stringer v. State, 454 So.2d 468 (Miss.1984).
This state recognizes a strong but rebut-table presumption that counsel’s conduct falls within a broad range of reasonable professional assistance. Gilliard v. State, 462 So.2d 710, 714 (Miss.1985). Also, this Court bases its decisions as to whether counsel’s efforts were effective on the totality of the circumstances surrounding each case. Waldrop v. State, 506 So.2d 273, 275 (Miss.1987)....

McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). See also Coleman v. State, 749 So.2d 1003, 1012 (Miss.1999) (“[i]n order to find for the defendant on the issue of ineffective assistance of counsel, this Court would have to conclude that counsel’s performance as a whole fell below the standard of reasonableness and that the mistakes made were serious enough to erode confidence in the outcome of the trial below.”).

¶ 14. Williams’s ineffective-assistance-of-counsel argument is based upon trial counsel’s failure to object during the testimony of both Price and Byrd, in which the weapon used during the subject incident was connected to a .40 caliber Smith & Wesson handgun previously stolen from Price’s residence. Price testified that Williams, his “cousin’s son, step-son” who lived only 300 yards away, had previously seen the stolen weapon, although he was unsure if Williams knew where it was kept. Williams asserts that “[t]he fact that Price’s gun was stolen and that Williams had seen the gun before have absolutely nothing to do with this capital murder or aggravated assault. By the State indicating that Williams stole the gun, the State is introducing evidence of Williamsfs] pri- or bad acts and character.” Moreover, Williams maintains that even if this evidence is admissible under Mississippi Rule of Evidence 404(b), its probative value is “substantially outweighed by the danger of unfair prejudice,” pursuant to Mississippi Rule of Evidence 403. See Crawford v. State, 754 So.2d 1211, 1220 (Miss.2000) (citing Jenkins v. State, 507 So.2d 89, 93 (Miss.1987)) (“Rule 403 is an ultimate filter through which all otherwise admissible evidence must pass.”). Specifically, “[t]he evidence that a gun was stolen from Price’s house is irrelevant and prejudicial to Williams involving his trial for capital murder, aggravated assault, and conspiracy to commit aggravated assault.” As such, Williams argues that “trial counsel was ineffective in not objecting to this prejudicial evidence.”

¶ 15. The State responds that:

Rule 404(b) is inapplicable in the case sub judice. The evidence was not offered to show Williams’ character, propensity for criminal conduct, or prior bad acts of breaking in Price’s house. The evidence was offered to establish that the murder weapon was one-in-the-same gun as the weapon stolen from Price’s house and that [Williams] knew the gun was in Price’s house prior to it being stolen.

(Emphasis added). The State further maintains that any prejudicial effect arising from this evidence is outweighed by its probative value, as it “establishes the gun used in the murder was the gun stolen from Price and ties Williams to the murder weapon.” Accordingly, the State argues that Williams failed to prove that the absence of objection by trial counsel constituted deficient performance under Strickland. However, even assuming arguendo that “the subject evidence was inadmissible and his trial counsel’s performance deficient for failing to object to its admission,” the State posits that “[t]he store surveillance video, the eye witness identification by [Minton], the items recovered from the search of [Williams’s] house and [Williams’s] own admission of guilt were more than sufficient evidence to convict Williams.”

¶ 16. This Court finds that the inadmissibility provisions of Rule 404(b) are inapplicable here. The subject evidence was offered to connect the murder weapon to the handgun previously stolen from Price’s residence. Price testified that Williams possessed some knowledge regarding that handgun. Such evidence could be admissible under several of the exceptions noted in Rule 404(b), i.e., “opportunity, intent, preparation, plan, knowledge .... ” Miss. R. Evid. 404(b). Moreover, the probative value of that evidence, connecting Williams and the murder weapon, is not “substantially outweighed” by any prejudicial effect (see Mississippi Rule of Evidence 403), given the totality of the evidence. As such, this Court concludes that trial counsel’s failure to object did not constitute deficient performance given the strong presumption of “reasonable professional assistance” and the totality of circumstances surrounding this case. McQuarter, 574 So.2d at 687. Furthermore, even if trial counsel’s failure to object did constitute deficient performance, this Court concludes that such mistakes were not “serious enough to erode confidence in the outcome of the trial below.” Coleman, 749 So.2d at 1012. The store surveillance video, which corroborated Minton’s testimony, and Williams’s admission of guilt both individually and collectively provided ample evidence justifying Williams’s conviction. Therefore, at the least, Williams’s defense was not prejudiced by trial counsel’s failure to object. Accordingly, this issue is without merit.

CONCLUSION

¶ 17. Based upon the aforementioned analysis, this Court affirms the judgment and sentencing order of the Circuit Court of Pike County.

¶ 18. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF CONSPIRACY TO COMMIT THE CRIME OF AGGRAVATED ASSAULT AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. ALL SENTENCES IN ALL COUNTS TO RUN CONSECUTIVELY. APPELLANT IS ORDERED TO PAY FULL RESTITUTION AND ALL COSTS.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      . The store surveillance video corroborated Minton’s account. As the State’s brief notes: [i]n the surveillance video you see Hymes and Williams exit their vehicle, and then enter the store. When Serigny enters the store, Williams is seen walking up behind the victim and brutally shooting Serigny in the forehead. Next you see Williams running toward the door and the two exit the store.

      . On January 5, 2007, a .40 caliber Smith & Wesson handgun was reported stolen by Raymond Price. Price testified that Williams was his "cousin’s son, step-son.” According to Price, Williams lived in a trailer "about 300 yards from where I stay[,]" and would "come over [to] shoot basketball with my daughter and his brothers." Price testified that Williams had seen him take his guns out shooting, although he was unsure if Williams knew where the guns were kept.

      .According to Haygood, ‘'[t]he white shirt that [Hymes] was wearing at the time of the robbery was recovered during the search....” Moreover, Haygood testified that Hymes's Southwest ID card was found inside his wallet and that a hat was recovered from his closet “which was described by [Minton] and the [store] owners as being hats that they had in their store and taken during the [incident].”

      . According to Haygood, “there is a price tag and it’s notated on the sticker of the brand of the hat. That is the same price tag that is used by the convenience store where the armed robbery took place.” Furthermore, Bonds testified that she first saw the hats found in the residences of Williams and Hymes ”[w]hen they returned from the store.”

      . This was corroborated by Bonds who testified that Williams “asked me to get in my car and go home.” However, Bonds also testified that she took Hymes home.

      . The capital-murder count provided that Williams and Hymes "did feloniously, wilfully, and of their malice aforethought, kill and murder [Serigny] ... by shooting him with a firearm, at a time when they ... were then and there engaged in the commission of the crime of robbery of the MS Food Mart, contrary to and in violation of Section 97-3-19(2)(e)....”

      . The aggravated-assault count stated that Williams and Hymes "did unlawfully, felo-niously, purposely and knowingly attempt to cause bodily injury to another, namely, [Min-ton] ... with a deadly weapon, to wit: a Smith & Wesson .40 caliber handgun, by shooting at said victim, contrary to and in violation of Section 97-3-7(2)....”

      . See footnote 2 and paragraph 7 supra.

      . Mississippi Rule of Evidence 404(b) states:
      [e]vidence 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.
      Miss. R. Evid. 404(b).

      . Williams's brief provides that “if this Court finds the record does not affirmatively show ineffective assistance of counsel, [Williams] respectfully requests the issue be dismissed without prejudice to allow Williams to supplement the record with additional evidence on post-conviction.” As in McQuarter, this Court recognizes Williams's “right to raise the ineffective assistance claim via appropriate post-convictions proceedings.” McQuarter, 574 So.2d at 687 (citing Read v. State, 430 So.2d 832 (Miss. 1983)). See also Walton v. State, 998 So.2d 1011, 2007 Miss.App. LEXIS 757 at *12-13 (Miss.Ct.App. November 13, 2007).


source: Caselaw Access Project

author: LAMAR, Justice,

license: Public Domain

text:
    David WELDE v. STATE of Mississippi.
    No. 2007-KA-01686-SCT.
    Supreme Court of Mississippi.
    Feb. 19, 2009.

      Benjamin A. Súber, attorney for appellant.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
   LAMAR, Justice,

for the Court.

¶ 1. David Welde was convicted in the Circuit Court of Itawamba County of one count of capital murder and one count of conspiracy to commit capital murder in the death of Donald Gilliard. Following a jury trial, Welde was sentenced to life imprisonment without parole in the custody of the Mississippi Department of Corrections. Welde now appeals to this Court, asserting that the trial court erred in admitting evidence of Welde’s alleged prior bad acts and also in denying Welde's motion for change of venue. Finding no merit in these assignments of error, this Court affirms.

FACTS

¶ 2. On December 30, 2004, David Welde, Charles Miles, and Helen Rogers went to Donald Gilliard’s house to collect a debt. Gilliard owed Welde approximately one thousand dollars. An argument ensued among Welde, Miles, and Gilliard. Gilliard’s wife, Dawnette Brown, testified that Miles, referring to Gilliard, stated “I’m going to kill you, one way or another.” Welde, Miles, and Rogers then left.

¶ 3. The next morning at approximately 6:00 a.m., Welde went to the home of Michael Powers and Ashley Hughes, in an attempt to locate Powers, who also owed Welde money. Hughes refused to let Welde in, telling him that Powers was not home. Welde left and proceeded to Gilli-ard’s house.

¶ 4. When Welde arrived at Gilliard’s house at approximately 6:30 a.m., Gilliard’s roommate, Doyle Higgins, answered the door. Welde suggested that Higgins go back to bed. When Higgins refused, Welde handed Higgins a .380-caliber bullet and said “You are a good man. You need to stay that way.” Brown, Gilliard’s wife, testified that while at the home, Gilli-ard asked Welde “Are y’all going to ambush me?” Welde responded “No. If I was going to ambush you, I would want you to see it coming.” Welde stated that the two would “go to Huddle House and have some coffee and talk about it.” Welde and Gilliard left in Welde’s car.

¶ 5. Sometime between 7:00 and 7:30 a.m., Welde and Gilliard arrived at the home of Rogers to meet Miles, who was staying with Rogers at the time. Welde, Miles, and Gilliard quickly left in Miles’s Chevrolet Lumina.

¶ 6. Welde, Miles, and Gilliard proceeded to the home of Powers and Hughes, looking for Powers. Believing only Gilliard was at the door, Hughes answered the door. Welde barged in, and Hughes told him that Powers, who was hiding in the back of the home, was out of town. Welde stated that Powers owed him money and threatened to take things from the home if the debt remained unpaid. Hughes testified that Welde pulled a pistol from his jacket and stated “I was told to take this and put it to your forehead and pull the trigger.” Welde then put the .380-caliber pistol to the couch and fired a round into the couch at approximately 8:00 a.m. Welde, Miles, and Gilliard left in Miles’s Lumina, with Miles in the driver’s seat, Gilliard in the passenger seat, and Welde in the back seat on the passenger side.

¶ 7. While the three traveled down the road, Miles pulled out a .25-caliber pistol and pointed it at Gilliard. Welde then handed Miles the .380-caliber pistol. Gilli-ard began to struggle with the two men. Welde grabbed Gilliard’s arm, holding him while Miles shot Gilliard in the left side of the face. Miles handed the .380-caliber pistol back to Welde. Welde then shot Gilliard in the back of the head. While still driving down the road, Miles leaned over and opened the passenger door. Welde let go of Gilliard, who immediately fell out the open door.

¶ 8. At 8:06 a.m., Welde called Lee Wayne Trammel and asked if he could come by Trammel’s house. Welde and Miles arrived shortly thereafter, asking to use the restroom. Miles used a mop bucket and some water to try to clean the car. Trammel observed a large amount of blood on the car and inquired as to what happened. Welde admitted to shooting “a guy” who owed him money and showed Trammel the .380-caliber pistol. Trammel asked Welde and Miles to leave.

¶ 9. Welde and Miles proceeded to the Tremont car wash where they attempted to clean the inside of the car with a pressure washer. In an attempt to dispose of evidence of the murder, Welde hid some bloody rags under a fifty-five gallon drum and threw some .380 casings over a fence behind the car wash. Welde and Miles went to the home of John Hawkins, asking him to dispose of both the murder weapon and their clothes.

¶ 10. Jamie Lee Kent discovered Gilli-ard’s body on Scott Senter Road at approximately 8:00 a.m. Brad Rogers, deputy with the Itawamba County Sheriffs Department, responded to the call and arrived on the scene at approximately 8:16 a.m.

PROCEDURAL HISTORY

¶ 11. David Welde and Charles Miles were indicted by a grand jury on May 12, 2006, on two counts: capital murder and conspiracy to commit murder. Following a four-day jury trial in the Circuit Court of Itawamba County, Welde was convicted on both counts on August 2, 2007. That same day, Welde was sentenced to life imprisonment without parole on the first count and twenty years imprisonment on the second count, to run consecutively. Welde now appeals, seeking a new trial.

ANALYSIS

I. Whether the court erred in admitting evidence of the defendant’s acts prior to the murder.

¶ 12. Welde’s first assignment of error concerns admission of the testimony of Hughes, who testified that on the morning of Gilliard’s death, Welde threatened her with his pistol, and then shot the pistol into her couch. Welde contends that this evidence of a prior bad act is irrelevant and inadmissible.

¶ 13. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Fisher v. State, 690 So.2d 268, 274 (Miss.1996) (citing Shearer v. State, 428 So.2d 824, 826 (Miss. 1982)).

¶ 14. Generally, evidence of any crime other than the one for which the defendant is being tried is not admissible. Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995). Mississippi Rule of Evidence 404(b) provides an exception to this general rule:

Evidence 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.

Miss. R. Evid. 404(b). Evidence of other crimes, wrongs, or acts is admissible if the offense being tried and the other act are “so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences.” Neal v. State, 451 So.2d 743, 759 (Miss.1984). This Court has held that when dealing with closely related acts, the State “has a legitimate interest in telling a rational and coherent story of what happened _” Brown v. State, 483 So.2d 328, 329 (Miss.1986).

¶ 15. This Court has applied a two-part test to determine the admissibility of evidence under Rule 404(b). Crawford v. State, 754 So.2d 1211 (Miss.2000). “The evidence offered must (1) be relevant to prove a material issue other than the defendant’s character; and (2) the probative value of the evidence must outweigh the prejudicial effect.” Id. at 1220. The second part of this analysis is required by Mississippi Rule of Evidence 403, as “Rule 403 is an ultimate filter through which all otherwise admissible evidence must pass.” Id. (quoting Jenkins v. State, 507 So.2d 89, 93 (Miss.1987)). Thus, evidence which passes the two-part test shall be deemed admissible under both Rule 404(b) and Rule 403.

¶ 16. Hughes testified that on the morning of Gilliard’s death, Welde and Gil-liard came to her house, looking for her fiancé, Powers. After barging into the home, Welde informed Hughes that Powers owed him money, and that if Welde was not paid, he would return and take Hughes’s possessions — dvd player, stereo, etc. — as compensation. Hughes testified that Welde then pulled out a .380-caliber pistol and said “You see this right here? I was told to put it to your forehead and pull the trigger.” Hughes further testified that Welde then put the pistol to the couch and fired one shot into the couch.

¶ 17. Itawamba County Chief Deputy Sheriff Steve Wilburn went to Hughes’s home and recovered the projectile that had traveled through the couch and into the carpet underneath. The state’s forensic expert, Byron McIntyre, matched this projectile and a projectile recovered from the passenger floorboard of the Lumina to the .380-caliber pistol identified as the murder weapon. Several state witnesses testified that they saw Welde carrying a .380-cali-ber pistol on the morning of the killing. In his own statement to Mississippi Bureau of Investigation Investigator Chris Jones, Welde stated that he shot Gilliard in the back of the head with the .380-caliber pistol.

¶ 18. The trial court found that the events on the morning of Gilliard’s death were “so interrelated with the incident involving the "victim as to constitute a single transaction or occurrence.” The court noted that these acts were material to prove knowledge, motive, intent, and planning on Welde’s part. The trial court found that the events of that morning were closely related in time and place. The trial court admitted the evidence, finding that it was relevant and that the probative value of the evidence was not substantially outweighed by its prejudicial effect.

¶ 19. The evidence in this case clearly supports the trial court’s finding that the challenged testimony was both relevant and probative. Hughes’s testimony establishes that Welde and Gilliard were together less than half an hour before Gilliard’s body was discovered. Further, this evidence places the murder weapon in Welde’s hands shortly before the shooting, as the projectile recovered from the couch matched the projectile recovered from the Lumina, both determined to have been fired by the .380-caliber pistol recovered by investigators.

¶ 20. The trial court properly employed the two-part analysis for admissibility under Rule 404(b) and the balancing test required by Rule 403. For the foregoing reasons, this Court finds that the trial court did not abuse its discretion in finding the evidence admissible.

II. Whether the trial court erred in denying Welde’s motion for change of venue.

¶ 21. “The decision to grant or deny a motion for change of venue is within the discretion of the trial judge.” McCune v. State, 989 So.2d 310, 316 (Miss. 2008). “This Court ‘will not disturb the ruling of the lower court where the trial judge did not abuse his discretion....’” Id. (quoting Mingo v. State, 944 So.2d 18, 30 (Miss.2006)).

¶ 22. Upon filing an application for change of venue supported by two affidavits affirming the defendant’s inability to receive a fair trial, there arises a presumption that an impartial jury cannot be obtained. King v. State, 960 So.2d 413, 429-430 (Miss.2007); see also Miss.Code Ann. § 99-15-35 (Rev.2007). This Court has set forth “certain elements which, when present, would serve as an indicator to the trial court as to when the presumption is irrebuttable.” King, 960 So.2d at 429-430 (quoting White v. State, 495 So.2d 1346, 1349 (Miss.1986)). One such element is whether the case is a capital case, based on a heightened standard of review. Id. This Court has since held, however, that “[a] motion for a change of venue is not automatically granted in a capital case and is largely a matter within the sound discretion of the trial court.” Davis v. State, 767 So.2d 986, 993 (Miss.2000) (citing Gray v. State, 728 So.2d 36, 65 (Miss.1998)).

¶ 23. The State may rebut the presumption that an impartial jury cannot be obtained “by proving from voir dire that the trial court impaneled an impartial jury.” Holland v. State, 705 So.2d 307, 336 (Miss.1997) (citing Harris v. State, 537 So.2d 1325, 1329 (Miss.1989)). “If the State demonstrates such, this Court will not overturn the trial court’s finding that an impartial jury could be found, despite adverse publicity.” Id. Further, this Court has held that a circuit judge did not abuse his discretion in denying a motion for a change of venue when “during voir dire, numerous venire members indicated that they had read news accounts or had seen television newscasts regarding the case, and the only one who indicated that she had already formed an opinion as to how the case should be decided was excused.” MeCune, 989 So.2d at 318.

¶ 24. In accordance with Mississippi Code Annotated Section 99-15-35, Welde filed an amended motion for change of venue. Attached were two affidavits from citizens who stated that Welde could not receive a fair and impartial trial in Ita-wamba County. The motion noted the “numerous” newspaper articles and television stories discussing the case, published prior to Welde’s indictment, citing the circulation of the newspapers and the broadcast area of the television stations as reasons for the inability to obtain an impartial jury.

¶ 25. During the pretrial hearing, the state presented five witnesses, all members of the Itawamba County Board of Supervisors, each testifying that Welde could, in fact, receive a fan1 and impartial trial in Itawamba County. The court reserved ruling on the motion pending voir dire examination.

¶ 26. The venire was questioned as to whether they recalled any news media coverage regarding the case. Those prospective jurors who responded affirmatively were subjected to individual voir dire as to whether they had formed a fixed opinion based upon the coverage. Only one prospective juror stated that he had formed a fixed opinion, and he was subsequently stricken for cause from the jury pool. In addition, during the state’s voir dire questioning, each prospective juror agreed that the defendant would be presumed innocent until the evidence proved otherwise.

¶ 27. After voir dire, the trial court instructed the prospective jurors that it was their duty to refrain from watching, reading, or listening to any news media coverage regarding the case. The jury was sequestered for the duration of the trial and sentencing.

¶ 28. Through the pre-trial hearing and voir dire, the state presented evidence that an impartial jury could be obtained in Ita-wamba County. Moreover, the prospective jurors stated that they were, in fact, impartial and unaffected by media coverage of the case. “[T]his Court will treat with deference a venire person’s assertions of impartiality.” Holland, 705 So.2d at 336 (citing Scott v. Ball, 595 So.2d 848, 850 (Miss.1992)).

¶ 29. “Where ... the evidence is conflicting on the question of whether or not the defendant could receive a fair and impartial trial, this Court will generally defer to the considered opinion of the trial judge.” Burrell v. State, 613 So.2d 1186, 1190 (Miss.1993). There is no evidence in the record to indicate that the jurors were not fair and impartial. The trial judge took appropriate steps, through voir dire, jury instruction, and sequestration, to ensure that the defendant’s right to a fair trial was preserved. This Court, therefore, finds that the trial court did not abuse its discretion in denying Welde’s motion for change of venue.

CONCLUSION

¶ 30. This Court finds that the trial court did not abuse its discretion in admitting evidence of Welde’s prior acts. Further, this Court finds that the trial court did not abuse its discretion in denying Welde’s motion for change of venue. For these reasons, this Court affirms the judgment of the Circuit Court of Itawamba County.

¶ 31. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT, WITHOUT THE POSSIBILITY OF PAROLE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF CONSPIRACY TO COMMIT MURDER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH ANY SENTENCE PREVIOUSLY IMPOSED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE JJ., CONCUR.

      . Miles remained in the car while Welde and Gilliard went inside.

      . Dr. Steven T. Hayne, who performed Gilli-ard's autopsy, testified that the cause of death was the second shot, fired by Welde into the back of Gilliard's neck.

      . Powers, hiding in the bedroom, heard the gunshot in the living room at “approximately 8:00 a.m.” Hughes did not testify as to the timing of the gunshot. Kent discovered the body at “approximately 8:00 a.m.," with Deputy Rogers arriving on the scene at 8:16 a.m.


author: DICKINSON, Justice, KITCHENS, Justice,

text:
    Gregory HILL v. Durenda RAMSEY, Deviney Equipment Company and New Holland North America, Inc.
    No. 2007-CA-00806-SCT.
    Supreme Court of Mississippi.
    Feb. 26, 2009.

      Bennie L. Jones, Jr., West Point, attorney for appellant.
    Everett Eaves White, Marc E. Brand, Jack H. Hayes, Walker (Bill) Jones, Jackson, attorneys for appellees.
   DICKINSON, Justice,

for the Court.

¶ 1. In this negligence, defective-design and faulty product-inspection case, the question presented is whether the trial court abused its discretion when it dismissed the plaintiffs claims without prejudice, pursuant to Mississippi Rule of Civil Procedure 41(b). Because we find ample evidence in the record to support the trial court’s decision, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 18, 2000, Durenda Ramsey’s vehicle rear-ended Gregory Hill while Hill was driving a 1989 Ford backhoe. On May 18, 2000, Hill filed suit against Ramsey for the injuries he allegedly suffered as a result of the wreck. On April 17, 2003, Hill amended his complaint to assert products-liability claims against New Holland North America, Inc. (fik/a Ford Motor Co.), Deviney Equipment Company, and John Does 1-10. New Holland answered the amended complaint on August 12, 2008. Hill filed a motion for enlargement of time to serve Deviney Equipment, and Deviney answered the amended complaint on September 4, 2003.

¶ 3. New Holland served Hill with written discovery on October 9, 2003. When Hill did not respond in a timely manner, New Holland filed a motion to compel on February 17, 2004. Hill filed a motion for enlargement of time to respond to the discovery requests on March 4, 2004, and he served his response on March 22, 2004. An agreed order authorizing disclosure of Hill’s protected health information was entered on August 23, 2004, and New Holland proceeded to serve several subpoenas on various health providers in September and October, 2004.

¶ 4. No further action was taken in the case until April 27, 2005, when Deviney filed a motion for judgment on the pleadings. Hill filed three motions for enlargement of time to respond to Deviney’s motion and finally answered on August 3, 2005. No other action of record was taken until March 1, 2007, when Ramsey’s attorney filed a motion for status conference. New Holland followed with a motion to dismiss for failure to prosecute on March 22, 2007, stating that there had been no real activity in the case for almost four years. Hill responded to the motions, and the trial court heard oral argument on March 30, 2007. The trial court subsequently entered an order dismissing Hill’s claims against New Holland and Deviney without prejudice on April 13, 2007.

¶ 5. Hill argues on appeal that (1) the trial court erred in dismissing his case for lack of prosecution under Mississippi Rule of Civil Procedure 41(b), and (2) the trial court abused its discretion in dismissing his claims under the circumstances.

DISCUSSION

¶ 6. “Any court of law or equity may exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is necessary as a means to ‘the orderly expedition of justice’ and ‘the court’s control of its own docket.’ ” Cucos, Inc. v. McDaniel, 938 So.2d 238, 240 (Miss. 2006) (citations omitted). “It has been clear since the adoption of the Mississippi Rules of Civil Procedure that the granting of motions to dismiss is a matter within the discretion of the trial court.” Id. (citations omitted). “There is no set time limit on the prosecution of an action once it has been filed, and dismissal for failure to prosecute will be upheld only ‘where the record shows that a plaintiff has been guilty of dilatory or contumacious conduct.’” AT & T v. Days Inn, 720 So.2d 178, 180 (Miss.1998) (quoting Watson v. Lillard, 493 So.2d 1277, 1279 (Miss.1986)). “This Court will not disturb a trial court’s ruling on a dismissal for want of prosecution unless it finds an abuse of discretion.” Cucos, 938 So.2d at 240 (citations omitted). But see, Ill. Cent. R.R. Co. v. Moore, 994 So.2d 723, 2008 Miss. LEXIS 422 (Miss. Sept. 4, 2008) (holding that the trial judge abused his discretion when he failed to dismiss the action).

¶ 7. No abuse of discretion exists in this case as to the trial court’s finding that Hill’s conduct was dilatory. It is clear from the record that the only action taken by the plaintiff between filing the amended complaint and this appeal was reactionary. There is no evidence in the record that Hill ever noticed one deposition, served any discovery requests, issued a subpoena, or otherwise initiated discovery. Even if his actions taken in response could somehow be viewed as sufficient prosecution of his claim, it is undisputed that no action of record took place between August 2005 and March 2007, which is sufficient delay, standing alone, to warrant dismissal. The trial judge must “control [his] own docket” and strive for the “orderly expedition of justice,” and therefore did not abuse his discretion when he dismissed the claims. Id. at 240.

¶ 8. Hill relies almost exclusively on Cucos, Inc. v. McDaniel, 938 So.2d 238 (Miss. 2006), to support his argument that the trial judge abused his discretion. However, Hill’s reliance on Cucos is misplaced for two reasons. First, Cucos dealt with a motion to dismiss under Mississippi Rule of Civil Procedure 41(d), and not with a Rule 41(b) motion. In Cucos, this Court upheld the trial court’s decision to reinstate the plaintiffs dismissed claims after he successfully filed a locally acceptable “action of record” under Rule 41(d). Id. at 247. However, it is clear from the language of the Rules that no such “action of record” safeguard exists under Mississippi Rules Civil Procedure Rule 41(b).

¶ 9. Secondly, the underlying factual issues in Ciicos are of no real importance. Rather, this Court found that the trial judge did not abuse his discretion in reinstating the claim. The same standard of review is applicable here, and it is clear from the record that the trial court did not abuse its discretion when it decided to dismiss Hill’s claims. Thus, Hill’s reliance on Cucos is misplaced, and offers no support for his position.

¶ 10. Hill argues in his reply brief that the trial judge’s dismissal of his claims against New Holland and Deviney without prejudice was an extreme sanction, because the applicable statute of limitations had run at the time of dismissal. This issue is meritless. It is elementary that, unless process is not timely served, the statute of limitations is tolled upon the filing of the complaint, and does not begin to run again until litigation has ended.

¶ 11. The dissent provides an excellent analysis of a case that is not before us today. Had the trial judge dismissed this case with prejudice, we might agree with the dissent’s logic. However, the case before us today involves a dismissal without prejudice, which is hardly a “nuclear option.”

¶ 12. The dissent claims that “we have consistently required that a trial court’s dismissal for failure to prosecute necessarily abuses its discretion when it does not first consider lesser sanctions.” However, all of the cases cited by the dissent involved dismissals with prejudice. Indeed, the “common thread” running through all of the cases is not, as the dissent incorrectly perceives, that “Rule 41(b) dismissal should not be employed as a first response, but only when all other attempts to move the case along have proven fruitless”; rather, it is that all of the cases involved dismissals with prejudice.

¶ 13. Moreover, Cox v. Cox, 976 So.2d 869 (Miss.2008), a case on which the dissent relies heavily, specifically states: “This Court must consider whether lesser sanctions would better serve the interests of justice. Lesser sanctions include ... ‘dismissal without prejudice....’” Id. at 876. Thus, the dissent’s claim that this Court “consistently” has required trial judges to consider lesser sanctions on the record before dismissing a case without prejudice is incorrect, as Cox clearly states that dismissal without prejudice is a lesser sanction.

CONCLUSION

¶ 14. The trial court did not abuse its discretion in this case, as there is clear evidence of unreasonable delay by the plaintiff. We therefore affirm the decision of the Noxubee County Circuit Court.

¶ 15. AFFIRMED.

CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND GRAVES, P.J.

KITCHENS, Justice,

Dissenting:

¶ 16. Because today’s decision makes a heretofore undrawn and ill-advised distinction between Rule 41(b) dismissals and further muddles an already confusing area of our jurisprudence, I respectfully dissent.

¶ 17. One of the most important purposes of the Rules of Civil Procedure is the promotion of uniformity in the operation of our state’s trial courts. Miss. R. Civ. P., Order of Adoption. They often fall short of that goal, though, because they are complicated. The intricacies of cross-appeals, permissive joinders, and waived defenses, to mention a few of the complexities, often prove labyrinthine in real-life application for attorney and trial judge alike. In cases such as this one, we are presented with rare chances to provide clear, practical guidance for Bench and Bar through structured, coherent instructions. Today’s decision fails to capitalize on this opportunity.

¶ 18. Mississippi Rule of Civil Procedure 41(b) formalizes a trial court’s inherent power to govern its own docket, Cucos, Inc. v. McDaniel, 938 So.2d 238, 240 (Miss. 2006), by permitting a defendant to move for dismissal of any action or claim for failure of the plaintiff to prosecute the case. We will overturn a trial judge’s decision on such a motion only when we find an abuse of discretion. Id. We have long recognized the importance of adjudicating these cases in a manner that ensures uniformity of application. See Miss. R. Civ. P. 41 cmt. Above all else, our decisions consistently have reflected our longstanding position that dismissal for failure to prosecute “is a drastic punishment and should not be invoked except where the conduct of the party has been so deliberately careless as to call for drastic action.” Peoples Bank v. D’Lo Royalties, Inc., 206 So.2d 836, 837 (Miss.1968) (citing Williams v. Whitfield, 249 Miss. 634, 643, 163 So.2d 688 (1964)). This idea reflects our broader view that the Rules of Civil Procedure are not mere arbitrary, technical constructions but should be construed, whenever possible, in a manner that leads to a full adjudication on the merits. See Miss. R. Civ. P. 1, cmt. See also Smith v. Hunter, 736 So.2d 440, 445 (Miss.Ct.App. 1999).

¶ 19. To achieve this goal, we consistently have required that a trial court’s dismissal for failure to prosecute necessarily abuses its discretion when it does not first consider lesser sanctions. Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 633 (Miss.2002). This consideration will not be presumed and therefore must be made on the record. Cox v. Cox, 976 So.2d 869, 876 n. 10 (Miss.2008). We require these steps for the very reason that the Rules of Civil Procedure were adopted nearly 30 years ago: to discourage dissimilar treatment of similar cases.

¶ 20. These are not our only considerations in determining whether a trial court properly dismissed a claim pursuant to Rule 41(b), see also, e.g., Guidry, 830 So.2d at 631-34, but they provide the sort of clear-cut, easy-to-follow guidelines that this Court should strive to promote when it considers questions of civil procedure. Because the trial judge in this case failed to make a record of lesser sanctions considered, if any, we should find the abuse of discretion necessary to reverse the dismissal.

¶ 21. Even if we were unconcerned with the development of helpful guidelines and wished only to revisit our precedent sufficiently to dispose of the case at bar, we still should reverse the trial court’s order. Our decisions make clear that dismissal for failure to prosecute is the nuclear option of litigation, a flashing red button to be pressed only when all other efforts to expedite final resolution of a lawsuit fail. See Peoples Bank, 206 So.2d at 837. In Cox, we affirmed a trial judge’s Rule 41(b) dismissal after no action was taken in the case for more than seven years, and we still reviewed the record for additional aggravating factors, such as the plaintiffs personal responsibility for the delay, prejudice to the defendant, and intent to delay. Cox, 976 So.2d at 876-80. In a 2007 case, the Court of Appeals found no error in a Rule 41(b) dismissal where the record was virtually devoid of any activity before dismissal and where the delay was caused by the plaintiff himself. Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So.2d 989 (Miss.Ct.App. 2007). Our colleagues at the appeals court also affirmed a dismissal in 2007 in a case involving a four-year delay, a covey of service violations, and likely prejudice to the defendant. Hensarling v. Holly, 972 So.2d 716 (Miss.Ct.App.2007).

¶ 22. The common thread running through all these cases is that Rule 41(b) dismissal should not be employed as a first response, but only when all other attempts to move the case along have proven fruitless. The record in the instant case lacks any suggestion that the plaintiff is responsible for the delay or that the defendant has suffered any noticeable prejudice. The 19-month delay in this case certainly cannot be described as an expeditious pursuit of finality, but neither is it the sort of inexcusable neglect for which we have affirmed Rule 41(b) dismissals. But such a comparison necessitates arbitrary comparing and contrasting, a fact that further highlights the prudence of providing clear guidelines in a case such as this.

¶ 28. The majority finds these concerns unnecessary by distinguishing this case, which concerns a Rule 41(b) dismissal without prejudice, from a typical Rule 41(b) dismissal with prejudice. Our precedent occasionally notes that dismissal without prejudice is, at least in theory, a less extreme sanction than dismissal with prejudice. With respect to my colleagues in the majority, this does not justify today’s difference in treatment. The majority rightly points out that the great bulk of our cases on this subject, including Cox, involved dismissals with prejudice. See Maj. Op. at 12-13. But the reason for this is a simple one: that most Rule 41 dismissals are rendered with prejudice. See Miss. R. Civ. P. 41(b) (“Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.”). The plain text of Rule 41 does not imply that the two forms of dismissal receive different treatment, and before today, this Court has never inferred such an intent from Rule 41. Today’s majority opinion lacks citation to a single case in which we have found that consideration of lesser sanctions need not precede Rule 41 dismissal so long as the dismissal is rendered without prejudice. This omission speaks for itself. Today’s creation of such a distinction fails to account for the fact that a plaintiff runs no less a risk of arbitrary treatment when facing a dismissal without prejudice than when a judge levies a dismissal with prejudice.

¶ 24. Today’s distinction gives rise to other practical concerns, as well. The immediate case provides a poor example, because Hill filed his complaint only a month after his underlying cause of action occurred; but the multitude of cases in which we have considered statutes of limitations makes plain that many lawsuits are filed within mere days of the statute’s expiration. In cases more common than this, where only a day or two remains after the statute’s tolling, any dismissal at all can amount to a dismissal with prejudice, for all practical purposes. The majority’s distinction, therefore, is one without a practical difference.

¶ 25. When read together, our holdings in Guidry and Cox require an on-the-record consideration of lesser sanctions before a trial court dismisses a case for failure to prosecute under Rule 41(b). As I read today’s opinion, that requirement is not disturbed for purposes of dismissals with prejudice. But neither our previous cases nor the plain text of Rule 41 distinguishes between dismissals with and without prejudice, and we too should decline to do so. We should continue to grant trial judges broad discretion in these matters; but as with all questions of civil procedure, we should avoid taking any action that increases the chances that our Rules of Civil Procedure, designed to promote uniformity, instead will be applied arbitrarily. Because today’s decision increases that risk, I respectfully dissent.

WALLER, C.J., AND GRAVES, P.J., JOIN THIS OPINION.

      . The record does not indicate whether or not the motion was granted, but Deviney does not argue defective service of process.

      . New Holland claims that, even after Hill finally responded to the discovery requests, he responded only to the interrogatories and not to the request for production of documents.

      . Rule 41(d) states, in pertinent part: "In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case.” Miss. R. Civ. P. 41(d) (emphasis added).

      . Rule 41(b) states, in pertinent part: "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” Miss. R. Civ. P. 41(b).

      . The only other case cited by Hill in his initial brief is Vosbein v. Bellais, 866 So.2d 489 (Miss.Ct.App.2004), in which the Court of Appeals ultimately affirmed the trial court's dismissal of the action under Rule 41(b), with prejudice. Id. at 494.


author: DICKINSON, Justice,

text:
    Mary Johnston BRIERE, Individually and on Behalf of the Wrongful Death Beneficiaries of Clarice J. Hollingsworth, Deceased v. SOUTH CENTRAL REGIONAL MEDICAL CENTER.
    No. 2007-CA-02103-SCT.
    Supreme Court of Mississippi.
    Feb. 26, 2009.

      James Garfus Thornton, attorney for appellant.
    Richard 0. Burson, Laurel, Peeler Gray-son Lacey, attorneys for appellee.
    Before WALLER, C.J., DICKINSON and KITCHENS, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. In this wrongful-death case, we must determine whether a plaintiff may proceed with a second lawsuit after dismissing the initial lawsuit, and — under the facts of this case — whether newly-discovered evidence requires supplementation of the notice letter sent pursuant to the Mississippi Tort Claims Act (MCTA).

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Clarice J. Hollingsworth was admitted to Cottonwood Manor nursing home on June 4, 2005. On June 10, 2005, she was taken to South Central Regional Medical Center’s (SCRMC) emergency room. Although the record discloses few details, it indicates that at some point, Ms. Hollings-worth suffered a broken hip and ultimately died from that injury.

¶ 3. Believing that the hip fracture occurred at Cottonwood Manor, Briere brought a wrongful-death action against Cottonwood on behalf of all wrongful-death beneficiaries. After Cottonwood failed to answer, Briere entered a default, but failed to have it confirmed.

¶ 4. At some point while her suit against Cottonwood was still pending, Briere decided to file a second wrongful-death suit against SCRMC. She sent a notice-of-claim letter as required by the MTCA, stating that Ms. Hollingsworth had been neglected, abused, and ultimately died as a result of “multi-faceted failures in the care and treatment of her by [SCRMC].” After SCRMC received the notice-of-claim letter on May 22, 2006, it investigated the claims and summarily denied them by letter dated June 12, 2006.

¶ 5. After her expert opined that Ms. Hollingsworth’s hip fracture may have occurred at SCRMC (rather than at Cottonwood as she had previously thought), Bri-ere sent a second notice-of-claim letter to SCRMC for “clarification.” The second notice letter added the following language not present in the first: “[W]e discovered that, based on her x-rays and other diagnostic findings, Ms. Hollingworth’s significant comminuted fractures of the pubic rami occurred while she %vas a patient at SCRMC.” SCRMC received Brier’s second notice letter on July 10, 2006. Brier filed suit against SCRMC on August 23, 2006, alleging negligence, premises liability and medical malpractice.

¶ 6. SCRMC filed a motion to dismiss, claiming that Briere’s first notice letter was statutorily insufficient, as it did not adequately describe all of the claims ultimately raised in the complaint, and that the second notice letter was deficient because it was received only forty-four days prior to filing of the suit. The trial court verbally denied SCRMC’s motion at the conclusion of a hearing held on January 16, 2007. On February 26, 2007, the trial court entered a written order denying SCRMC’s motion to dismiss but granting its motion for permission to appeal the interlocutory order. This Court denied the petition for interlocutory appeal on April 5, 2007.

¶ 7. After learning of Briere’s pending suit against Cottonwood, SCRMC filed a second motion to dismiss on July 9, 2007, claiming that, because the Mississippi Wrongful-Death Statute allows only one suit for wrongful death, Briere’s complaint failed to state a claim upon which relief could be granted. On July 30, 2007, the trial court held a hearing, during which counsel for Briere offered voluntarily to dismiss the first suit against Cottonwood, so that only one suit would be pending. The judge signed the order of dismissal.

¶ 8. Notwithstanding his dismissal of the first suit, the trial judge subsequently issued an order granting SCRMC’s motion to dismiss, stating:

This Court holds that according to Miss. Code Ann. § 11-7-13 and the Supreme Court’s decision in Long and its progeny, there can only be one wrongful death action arising out of the death of Ms. Hollingsworth, the first one filed. Since Plaintiffs first-filed wrongful death action against the nursing home was still pending before this Court at the time of filing of the two later wrongful death actions against [SCRMC], all of which arise out of the death of Ms. Hollings-worth, this Court holds that the two subsequently filed wrongful death actions against [SCRMC] are ‘of no effect’ and should be dismissed pursuant to Miss.Code Ann. § 11-7-13 and the Supreme Court’s decisions in Long and its progeny.”

(Emphasis added). Briere filed a motion for reconsideration, which the trial court denied. She then filed her notice of appeal with this Court, and SCRMC filed its notice of cross-appeal, arguing the trial court erred when it denied its first motion to dismiss for improper notice under the MTCA.

¶ 9. On appeal, Briere argues that the trial court erred when it dismissed her action against SCRMC, as the first suit against Cottonwood was either “null and void,” or not “decided on the merits,” thus not barring the second suit against SCRMC. Specifically, Briere states: “Once the first suit was dismissed, it was null and void. Thus, the second suit against [SCRMC] was the one and only suit for purposes of § 11-7-13, and the trial court erred in dismissing it.” SCRMC counters that the trial court was correct in its dismissal, as “the Court need only look at the status of the first-filed wrongful death action at the time that Plaintiff filed her Complaint in the instant action. If the first-filed wrongful death action was still pending on that date, which it was, then dismissal of the second wrongful-death action ... is mandatory.” SCRMC also appeals the trial court’s denial of its first motion to dismiss.

ANALYSIS

¶ 10. “This Court reviews de novo a trial court’s grant or denial of a motion to dismiss.” Forest Hill Nursing Ctr. & Long Term Care Mgmt., LLC v. Brister, 992 So.2d 1179, 1187 (Miss.2008) (citations omitted).

Briere’s Appeal

1111. The Mississippi Wrongful-Death Statute states, in pertinent part: “[A]nd there shall be but one (l) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits.” Miss.Code Ann. § 11-7-13 (Rev.2003). Briere claims that the trial court erred in dismissing her second suit against SCRMC, as the first suit against Cottonwood was voluntarily dismissed, and thus not “decided on its merits.”

¶ 12. We agree with Briere’s argument. Briere’s counsel states the issue well in her brief:

[T]he statute simply indicates that a dismissed wrongful death suit not decided on its merits does not bar mother suit. The legislature’s choice of the word another, as opposed to subsequent, is telling. Timing is irrelevant. If the first suit is dismissed without a decision on the merits ... another action is not barred. The statute is totally silent as to the existence or timing of the “another suit.”

We clarify Long and hold that the wrongful-death statute does not require that a second suit be dismissed solely because it was, at some point, pending at the same time as a previously-filed suit.

¶13. SCRMC relies on the following language from Long to support its argument that the trial court’s dismissal was proper: ‘Where, as here, a second suit is filed, it is of no effect and should be dismissed, as discussed supra. The rights of all claimants are preserved in the original suit and are fully addressed by join-der.” Long at 174. However, SCRMC’s reliance on this language is misplaced. It is clear the quoted language from Long applies only to situations where two wrongful-death cases are then currently pending. The facts here are different. When the trial court addressed SCRMC’s motion to dismiss, Briere already had dismissed the previously-filed suit against Cottonwood. Thus, the trial court erred when it dismissed Briere’s second wrongful-death suit, as it was the only suit pending, and violated neither the wrongful-death statute, nor this Court’s holding in Long.

SCRMC’s Cross-Appeal

¶ 14. SCRMC argues on cross-appeal that the trial court erred when it refused to grant its motion to dismiss for Briere’s alleged failure to comply with the notice provisions of the MTCA. Mississippi Code Section 11-46-11 states, in pertinent part:

(1) [A]ny person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity.
(2) Every notice of claim required by subsection (1) of this section shall be in writing, and shall be delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

Miss.Code Ann. § 11-46-11 (Rev.2003). SCRMC claims that Briere’s first notice letter was statutorily insufficient, as it did not adequately describe all of the claims ultimately raised in the complaint. Thus, as the second notice was the only valid notice, Briere erred when she filed suit only forty-four days after the second notice letter.

¶ 15. We hold that Briere’s first notice letter complied with the notice requirements of the MTCA. The broad language in the fust letter put SCRMC on notice of all of the claims of which Briere was aware at the time. If suit already had been filed, Briere certainly would have been able to amend her complaint to include the new information, pursuant to Mississippi Rule of Civil Procedure 15. Thus, we hold that the first notice letter was not statutorily insufficient simply because it did not specifically mention all of the claims ultimately raised in the complaint.

¶ 16. Since Briere’s first notice letter was statutorily sufficient, SCRMC’s second assignment of error must fail as well. As the first notice letter was sufficient, the timing of the second letter is irrelevant. SCRMC received the first letter on May 22, 2006, and Briere did not file suit until August 23, 2006. Thus, Briere complied with the ninety-day notice requirement of Section 11-46-11(1). Therefore, SCRMC’s issues on cross-appeal are without merit, and the trial judge did not err in denying its motion to dismiss.

CONCLUSION

¶ 17. For the reasons stated herein, we hold that the trial court erred when it dismissed Briere’s suit against SCRMC, but the trial court did not err in holding that Briere provided proper notice to SCRMC under the MTCA. Accordingly, we reverse the trial court’s dismissal of Briere’s claims against SCRMC and affirm the trial court’s denial of SCRMC’s motion to dismiss, and we remand this matter for further disposition consistent with this opinion.

¶ 18. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . See Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 to 11-46-23 (Rev.2002).

      . The record does not reflect why Ms. Holl-ingsworth needed hospitalization.

      .The parties agree that SCRMC meets the definition of “community hospital,” and is therefore subject to the provisions of the MTCA.

      . The dismissal also set aside the clerk's entry of default against Cottonwood.

      . Long v. McKinney, 897 So.2d 160 (Miss. 2004).

      . Briere had filed a third suit against SCRMC that was identical to the second. That suit is not at issue on appeal.

      .There may have been some confusion as to the status of Brier's first suit against Cottonwood (which already had been dismissed at that point), as the trial judge's order granting dismissal to SCRMC states: "Therefore, join-der of Plaintiff's wrongful death claims is clearly a question for another day in Plaintiff's first-filed wrongful death action against Ms. Hollingsworth’s nursing home.”

      . The first notice letter asserts, among other things: "The legal basis for and the type of loss sustained in this claim are generally the neglect, abuse and wrongful death of Clarice J. Hollingsworth as a result of multi-faceted failures in the care and treatment of her by [SCRMC], its officers, agents and employees who were not properly trained, qualified and supervised."

      . SCRMC does not allege that Briere knew that the fracture took place there, instead of Cottonwood, when she sent the first notice letter.

      .SCRMC also asserts that Briere's complaint is time-barred, as the "only notice letter that corresponded with the factual and legal accusations asserted" in the complaint was served more than one year after the alleged tortious conduct. Briere counters that this issue is procedurally barred, as it was not raised in the trial court. Any procedural bar aside, this issue is without merit, as the first notice letter was sufficient under the statute.