text:
    PURDUE PHARMA L.P., Purdue Pharma, Inc., The Purdue Frederick Company, Inc., Teva Pharmaceuticals, USA, Inc., Cephalon, Inc., Johnson & Johnson, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc., n/k/a Janssen Pharmaceuticals, Inc., Endo Health Solutions Inc., Endo Pharmaceuticals, Inc., Watson Laboratories, Inc. n/k/a Actavis Laboratories Ut, Inc., Actavis LLC and Actavis Pharma, Inc. f/k/a Watson Pharma, Inc. v. STATE of Mississippi
    NO. 2017-IA-00300-SCT
    Supreme Court of Mississippi.
    October 18, 2018
    ATTORNEYS FOR APPELLANTS: JOSEPH ANTHONY SCLAFANI, R. DAVID KAUFMAN, JACKSON, CHRISTOPHER A. SHAPLEY, SHEILA BIRNBAUM, MARK S. CHEFFO, HAYDEN A. COLEMAN, STEPHEN L. THOMAS, ALAN W. PERRY, SIMON TURNER BAILEY, JACKSON, JOSHUA M. DAVIS, BRIAN M. ERCOLE, J. GORDON COONEY, JR., TINOS DIAMANTATOS, STEVEN A. REED, CHAD ROBERTS HUTCHINSON, CHRISTY D. JONES, ADAM JULIUS SPICER, RIDGELAND, CHARLES C. LIFLAND, IV ANA CINGAL, CAROLYN J. KUBOTA, J. CARTER THOMPSON, JR., DAVID F. MARON, SAMUEL DEUCALION GREGORY, JACKSON.
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: GEORGE W. NEVILLE, JACQUELINE H. RAY, GORDON GARLAND LYELL, III, GEOFFREY C. MORGAN, JACKSON, SAMUEL MARTIN MILLETTE, JOHN LEE DAVIDSON, JOE N. TATUM, JACKSON, STEVE W. BERMAN, JENNIFER F. CONNOLLY, JAMES L. WARD, JR., ROBERT S. WOOD.
    BEFORE KITCHENS, P.J., KING AND BEAM, JJ.
   KING, JUSTICE, FOR THE COURT:

¶ 1. In this interlocutory appeal, the Court must determine whether the location of a foreign corporation's registered agent is relevant when determining the appropriate venue for an action. We find that the adoption of the Registered Agents Act ("RAA") made the location of a corporation's registered agent irrelevant for purposes of venue.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 15, 2015, the State of Mississippi filed a complaint in the Hinds County Chancery Court against fifteen pharmaceutical manufacturers and their affiliates ("Defendants"). According to the complaint, opioids originally were designed to treat "short-term post-surgical and trauma-related pain, and for palliative (end-of-life) care." However, in an effort to increase profits, the State alleged that Defendants employed a wide variety of deceptive and misleading practices designed to enter and conquer the chronic-pain market. The State alleged that Defendants, despite knowledge of the addictive nature of opioids, engaged in a marketing campaign "to create a profound transformation in medical and public perception that would permit the use of opioids not only for acute and palliative care, but also for long periods of time to treat more common aches and pains, like lower back pain, arthritis, and headaches."

¶ 3. As a result, opioids moved from a niche category of drugs to the most prescribed class of drugs in America. The State averred that, in an opioid study, two-thirds of patients who consumed opioids for more than ninety days still were taking opioids approximately five years later. The State also alleged that in 2012, prescription opioid use contributed to 16,007 deaths nationally. Specific to Mississippi, in 2012, ninety percent of drug-overdose deaths were caused by prescription drugs; most of the deaths were accidental. The complaint stated,

Defendants' deceptive marketing campaign deprived Mississippi patients and their doctors of the ability to make informed medical decisions and, instead, caused important, sometimes life-or-death decisions to be made based not on science, but on hype. Defendants deprived patients, their doctors, and health care payers of the chance to exercise informed judgment and subjected them to enormous costs and suffering.

¶ 4. The State alleged four common-law claims (fraud, negligent misrepresentation, unjust enrichment, and public nuisance), and a claim pursuant to the Mississippi Consumer Protection Act ("MCPA"), Mississippi Code Section 75-24-9. The complaint stated that the Hinds County Chancery Court "has subject matter jurisdiction over this action pursuant to MISS. CODE ANN. § 75-24-9, because the State brings this action, in part, to restrain by permanent injunction the use of a method, act, or practice prohibited by MISS. CODE ANN. § 75-24-5." In addition, the complaint stated that venue was proper pursuant to Mississippi Code Sections 11-11-3, 11-5-1, 75-24-9, and 9-5-81 ; and Article 6, Section 159, of the Mississippi Constitution.

¶ 5. The parties do not dispute that each defendant's principal place of business was located outside the State of Mississippi. On March 3, 2016, Defendants filed a joint motion to transfer for improper venue and to dismiss the complaint for failure to state a claim. Defendants moved the trial court to transfer the action from the Hinds County Chancery Court to the Rankin County Chancery Court pursuant to Mississippi Rules of Civil Procedure 12(b)(3) and 82(d). Attached to the motion was the affidavit of Stephanie M. Rippee, attorney of record for Defendants. Although each of Defendants' principal places of business were located outside the State of Mississippi, Rippee stated that, according to the Mississippi Secretary of State's website, Actavis Pharma had appointed as its registered agent in Mississippi CT Corporation System, which was located at 645 Lakeland East Drive, Suite 101, Flowood, Rankin County. In addition, Cephalon, Inc., had appointed as its registered agent Corporate Creations Network, Inc., located at 232 Market Street, Flowood, Rankin County.

¶ 6. The State argued in opposition that the Mississippi Legislature passed the RAA to eliminate the relevance of registered agents to the question of venue. The trial court agreed, finding that the passage of the RAA made the location of a foreign corporation's registered agent irrelevant to venue analysis. Accordingly, the trial court held that, because Mississippi's general chancery-court venue statute, Mississippi Code Section 11-5-1, stated that all cases not specifically provided for may be brought in the county in which the defendant may reside or be found, and because no defendant resided or could be found in Mississippi, Section 11-5-1 also was inapplicable to the action.

¶ 7. The trial court continued that Mississippi's general venue statute, Mississippi Code Section 11-11-3, was the only state venue statute that identified criteria other than the location of a registered agent. Pursuant to Section 11-11-3, "a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled." Miss. Code Ann. § 11-11-3 (Rev. 2004). Because the State's Medicaid agency is located in Hinds County along with most state agencies, the trial court found venue to be proper in Hinds County.

¶ 8. Defendants now appeal and argue that the trial court erred in finding that Hinds County was the appropriate venue for this action.

ANALYSIS

¶ 9. Defendants argue that the trial court erred in denying the motion to transfer venue from Hinds County. "The decision to grant or deny a motion for a change of venue lies within the discretion of the trial court and will not be disturbed unless the trial court abuses its discretion." Penn Nat'l Gaming, Inc. v. Ratliff , 954 So.2d 427, 433 (Miss. 2007). "[T]he plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue." Wilkerson v. Goss , 113 So.3d 544, 548 (Miss. 2013) (quoting Hedgepeth v. Johnson , 975 So.2d 235, 238 (Miss. 2008).

A. Mississippi Consumer Protection Act

¶ 10. Defendants first argue that venue is improper in Hinds County pursuant to the venue statute of the Mississippi Consumer Protection Act ("MCPA"). The MCPA mandates that actions "shall be brought in the chancery or county court of the county in which such person resides or has his principal place of business, or, with consent of the parties, may be brought in the chancery or county court of the county in which the State Capitol is located." Miss. Code Ann. § 75-24-9 (Rev. 2016).

Defendants contend that because no defendant resides or has its principal place of business in Hinds County and because no defendant consented to venue in Hinds County, venue in Hinds County is not proper.

¶ 11. This Court previously has held that, in cases involving a foreign corporation with its principal place of business outside the state, "the only place where it can be said to reside in this state is where an agent for service of process may be found." Ratliff , 954 So.2d at 434. However, subsequent to the Ratliff decision, the Legislature passed the RAA. The RAA provides that

The appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in this state. The address of the agent does not determine venue in an action or proceeding involving the entity.

Miss. Code Ann. § 79-35-15 (Rev. 2013).

¶ 12. Defendants argue that the statute's language does not wholly bar consideration of a registered agent's location for venue purposes. Instead, Defendants contend that the location of a registered agent does not, by itself, ultimately determine venue but is still relevant in the venue analysis. Therefore, because each Defendant's principal place of business is outside the state, the location of two Defendants' registered agents is the closest available proxy for residence. Because two Defendants maintain registered agents in Rankin County, Defendants argue that Rankin County is the proper location for the instant action. Defendants also argue that the trial court's interpretation of the RAA incorrectly overruled longstanding precedent holding that foreign corporations are subject to venue where their registered agents are located.

¶ 13. We find that the trial court correctly determined that the RAA effectively made the location of a corporation's registered agent irrelevant to the venue analysis. The plain language of the statute clearly states that "the address of the agent does not determine venue in an action or proceeding involving the entity." Miss. Code Ann. § 79-35-15. As the State argues, the only ground supporting the transfer to Rankin County is that two Defendants had registered agents located in Rankin County. We disagree with the dissent's contention that the language contained in Section 75-24-9 regarding the "consent of the parties" bars this action from being brought in Hinds County. It is clear that the consent language contained in the statute applies only to Mississippi defendants. Section 75-24-9 provides that "the action shall be brought in the chancery or county court of the county in which such person resides or has his principal place of business , or, with consent of the parties, may be brought in the chancery or county court of the county in which the State Capitol is located." Miss. Code Ann. § 75-24-9 (Rev. 2016) (emphasis added). Thus, because no person resides or has a principal place of business in Mississippi in this case, the consent language contained in the statute also does not apply and the statute as a whole fails to provide a venue option for foreign corporations.

¶ 14. Because the RAA excluded consideration of the location of a corporation's registered agent from the question of venue, the MCPA's venue statute provides no choice of venue for foreign corporations. Thus, this Court must look to the general venue statute for chancery court actions.

B. Chancery-Court Venue Statute

¶ 15. Defendants argue that if this Court determines that the MCPA's venue statute is not applicable, this Court should apply the general venue statute for chancery courts, Mississippi Code Section 11-5-1, to determine that venue is appropriate in Rankin County. Section 11-5-1 states in relevant part,

[A]ll cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found; and in all cases process may issue to any county to bring in defendants and to enforce all orders and decrees of the court.

Miss. Code Ann. § 11-5-1 (Rev. 2014). The State again argues that, because the location of a foreign corporation's registered agent is irrelevant to determine venue, this statute also does not apply. We agree.

¶ 16. This Court finds that the RAA overruled Ratliff and its holding that a non-resident defendant "resides" in the county where its agent for service of process is located. As the statute provides, the address of a registered agent does not determine venue. As further support, this Court, in Smith v. Kansas City Southern Railway Company , 214 So.3d 272 (Miss. 2017), rejected the contention that "a foreign corporation could be found in any county in which it had an agent upon whom process could be served" and stated in footnote two that

KCS has a registered agent in Rankin County, Mississippi. However, Mississippi Code Section 79-35-15 now specifically states that "the address of the agent does not determine venue in an action or proceeding involving the entity." Miss. Code Ann. § 79-35-15 (Rev. 2013).

Smith v. Kansas City S. Ry. Co. , 214 So.3d 272, 274 n.2 (Miss. 2017). Accordingly, because the general venue statute for chancery courts also provides no venue for foreign corporations, we must turn to the general venue statute for civil actions, Mississippi Code Section 11-11-3.

C. General Venue Statute

¶ 17. Because neither of the above statutes applied to this case, the trial court found that Mississippi Code Section 11-11-3, Mississippi's general venue statute, determined venue in this case. The general venue statute states,

(1)(a)(i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.
(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

Miss. Code Ann. § 11-11-3 (Rev. 2004). Because the statute addresses civil actions of which the circuit court has original jurisdiction, Defendants contend that this venue statute is inapplicable to actions brought in the chancery court. The statute's first section, however, pertains to "civil actions of which the circuit court has original jurisdiction," not exclusive jurisdiction. Miss. Code Ann. § 11-11-3 (emphasis added). Original jurisdiction may be shared with other courts. Moreover, only subsection 11-11-3(1)(a)(i) specifies venue in "circuit court." Every other subsection refers to "any civil actions." Section 11-11-3, therefore, is applicable to civil actions in "all courts." Miss. Code Ann. § 11-11-1 (Rev. 2004).

¶ 18. Accordingly, because the general venue statute for chancery court does not apply in this case and because Mississippi's general venue statute provides criteria that do not rely on the location of a registered agent, we find that the trial court's reliance on Section 11-11-3 was appropriate. See Holmes v. McMillan , 21 So.3d 614, 623 (Miss. 2009) (applying Mississippi Code Section 11-11-3 to a case initiated in county court). This interpretation of the statute is logical and avoids interpreting the MCPA to suggest that a foreign corporation may not be sued unless it consents to suit in Hinds County. While normally the specific terms of Mississippi Code Section 11-5-1 would prevail over the general terms of Section 11-11-3, because the specific terms of the general chancery-court venue statute fail to provide an appropriate venue for this action, the general terms of Section 11-11-3 apply here. Guice v. Miss. Life Ins. Co. , 836 So.2d 756, 759 (Miss. 2003). Accordingly, because the State's Medicaid agency is located in Hinds County along with most state agencies, venue in Hinds County was appropriate pursuant to Section 11-11-3(b).

¶ 19. Defendants also argue that no real conflict exists between the RAA and Section 75-24-9. As discussed above, we disagree and affirm the trial court's denial of Defendants' motion to transfer venue to Rankin County.

CONCLUSION

¶ 20. Because the clear language of the RAA makes the location of a corporation's registered agent irrelevant for the purposes of venue, the trial court in this case correctly denied Defendants' joint motion to transfer venue to Rankin County. Therefore, we affirm the Hinds County Chancery Court's order denying a venue transfer, and we remand this case to that court for further proceedings consistent with this opinion.

¶ 21. AFFIRMED AND REMANDED.

RANDOLPH AND KITCHENS, P.JJ., MAXWELL AND BEAM, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY COLEMAN AND CHAMBERLIN, J J. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHAMBERLIN AND ISHEE, JJ.; WALLER, C.J., JOINS IN PART.

¶ 22. Because Mississippi Code Section 11-11-3(1)(b) (Rev. 2004) applies only to venue for actions filed in circuit court and because the specific language of Mississippi Section 75-24-9 bars actions filed in Hinds County without the consent of the parties, I respectfully dissent.

¶ 23. The State chose to bring this action pursuant to the Mississippi Consumer Protection Act ("MCPA"). That act states in pertinent part,

The action shall be brought in the chancery or county court of the county in which such person resides or has his principal place of business, or, with consent of the parties , may be brought in the chancery or county court of the county in which the State Capitol is located.

Miss. Code Ann. § 75-24-9 (Rev. 2016) (emphasis added).

¶ 24. While the State contends that Hinds County is proper-because the State's Medicaid Agency is located there-the language of Section 75-24-9 specifically states that, without the consent of the parties, the action is precluded from being brought in Hinds County. And nothing in the plain language of the statute limits its application to Mississippi defendants except the expanded definition offered by the majority opinion. It is abundantly clear that the defendants in this action are authorized to do business in Mississippi and did not consent to the action's being filed in Hinds County.

¶ 25. The State contends that venue should be determined by Section 11-11-3(1), not Section 75-24-9, because the State brought claims for monetary damages and sought injunctive and other relief. I agree with the analysis, but I disagree with the result. Had this action been filed in circuit court, Section 11-11-3(1) would control. A legal basis certainly exists for the circuit court to have subject matter jurisdiction. Pendent jurisdiction would then lie for claims associated under the MCPA. See State v. Walgreen Co. , 250 So.3d 465, 476 (Miss. 2018) ("While the equitable issues pleaded are relevant and not to be ignored, the legal issues which flowed from [defendant]s' alleged inflated reimbursement requests predominate the State's claims and requests for relief. As a result, jurisdiction properly lies in the circuit court.").

¶ 26. This Court has repeatedly held that a venue provision under a specific cause of action cannot be abrogated by a general venue statute. See Guice v. Miss. Life Ins. Co. , 836 So.2d 756, 759 (Miss. 2003) (citing Green v. Winona Elevator Co. , 319 So.2d 224, 226 (Miss. 1975) ). Similarly, this Court has held that

[h]ad the Legislature intended for each statute to have equal footing or equal force then both statutes should have had the mandatory "shall" language ... Accordingly, we find that mandatory language, "shall," in the general venue statute ... controls in this case over the permissive language, "may" found in [another venue statute].

Crenshaw v. Roman , 942 So.2d 806, 811 (Miss. 2006) (quoting Capital City Ins. Co. v. G.B. "Boots" Smith Corp. , 889 So.2d 505, 515 (Miss. 2004) ). Further, when a statute "creates a cause of action which has not previously existed, the conditions upon which such right of action may be pursued are an integral part of the right granted and must be followed." Ross v. Ross , 208 So.2d 194, 196 (Miss. 1968) (citing Price v. Price , 202 Miss. 268, 32 So.2d 124 (1947), superseded by statute on other grounds as stated in Lewis v. Pagel , 233 So.3d 740, 747-48 (Miss. 2017) ). A general statute is not applicable "to a special statute which not only creates a right unknown to the common law, but also prescribes the means and course of procedure, including venue, by which the right is to be asserted." Ross , 208 So.2d at 196.

¶ 27. When "a statute is clear and unambiguous," this Court has found that "no further statutory construction is necessary and the statute should be given its plain meaning." Guice , 836 So.2d at 759. In addition, the language found in Section 75-24-9, that the action "shall be brought" in one of these specified venues, is mandatory. See Pitalo v. GPCH-GP, Inc. , 933 So.2d 927, 929 (Miss. 2006) ; see also Am. Home Prods. Corp. v. Sumlin , 942 So.2d 766, 769-70 (Miss. 2006) (holding that "shall" is mandatory, while "may" is discretionary); Capital City Ins. Co. , 889 So.2d at 516-17.

¶ 28. It is a legal impossibility, however, for this case to proceed as filed. First, the action was brought in the chancery court-not in the circuit court-and the State plainly asserts in its complaint that the suit was filed in chancery court pursuant to Section 75-24-9. By its unambiguous terms, Section 11-11-3(1) applies only to "[c]ivil actions of which the circuit court has original jurisdiction[.]" Miss. Code Ann. § 11-11-3(1)(a)(i) (emphasis added). The specific subsection cited by the majority to obtain venue is Section 11-11-3(1)(b) which states,

If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of subsection (1) [civil actions of which the circuit court has original jurisdiction], a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

Miss. Code Ann. § 11-11-3(1)(b) (emphasis added).

¶ 29. The majority relies on Wilkerson v. Goss , 113 So.3d 544 (Miss. 2013), to conclude that venue for a suit brought under the MCPA could be established pursuant to Section 11-11-3. Wilkerson , however, does not support this conclusion. The plaintiff in Wilkerson had been given a check for $65,000 to settle a workers' compensation claim. Id. at 546. The check did not clear, and the plaintiff thereafter sued Wilkerson for fraud and fraudulent inducement in the Smith County Chancery Court. Id. Wilkerson sought interlocutory relief from the refusal of the trial judge to transfer the case to the Scott County circuit court. Id. at 546-47. This Court reversed and remanded finding the trial court "erred in its interpretation of Mississippi Code Section 11-11-3 and in denying [d]efendants' motion to transfer venue [to Scott County Circuit Court ]." Id. at 550 (emphasis added).

¶ 30. Writing for the majority in Wilkerson , Justice Lamar wrote, "we find that the allegations [of Goss] would not support a finding of venue in [Smith County] even if properly supported by cognizable, credible evidence." Id. at 549. Similarly, the State's allegations here against Purdue make venue impossible in Hinds County because of the plain and unambiguous terms of Mississippi Code Section 75-24-9. Section 75-24-9 prohibits Hinds County as a permissible venue, unless it was chosen with "the consent of the parties."

¶ 31. Second, this Court has recognized the pendent jurisdiction of circuit courts for claims filed under Section 75-24-9. Walgreen , 250 So.3d at 474. In Walgreen , the State brought an action under the MCPA in DeSoto County Chancery Court against Walgreen's, CVS, and Fred's Pharmacies for deceptive trade practices and fraudulent reporting of "inflated and customary prices" in their reimbursement requests to the Mississippi Department of Medicaid. Id. at 468. The State also sought injunctive relief under Section 75-24-9. Id. The action was originally filed in the DeSoto County Chancery Court. However, the chancery court found that, because of the State's law claims and the defendants' request for a jury trial, the circuit court was better equipped to preside over the action. Id. This Court affirmed the decision of the trial court. Id. at 477.

¶ 32. A legal basis certainly supports the circuit court's exercise of subject-matter jurisdiction of the action. When an action includes both legal and equitable claims, as these cases do, this Court has repeatedly held that the circuit court is the appropriate forum. See ERA Franchise Sys., Inc. v. Mathis , 931 So.2d 1278, 1283 (Miss. 2006) (holding that "cases involving questions of both law and equity ... are more appropriately brought before a circuit court when they are connected to a contractual relationship or other claims tied to questions of law"); Union Nat'l Life Ins. Co. v. Crosby , 870 So.2d 1175, 1181 (Miss. 2004) (holding that cases which involved questions of both law and equity "leads us to the conclusion that this is a lawsuit that should be filed in circuit court, not chancery court"); S. Leisure Homes, Inc. v. Hardin , 742 So.2d 1088, 1090 (Miss. 1999) ("[I]t is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.").

¶ 33. Therefore, if pendent jurisdiction exists for claims of a violation of the MCPA, these claims should be brought in circuit court. See Walgreen , 250 So.3d at 474 ("While the equitable issues pleaded are relevant and not to be ignored, the legal issues which flowed from [defendant]s' alleged inflated reimbursement requests predominate the State's claims and requests for relief. As a result, jurisdiction properly lies in the circuit court."); Crosby , 870 So.2d at 1180 (holding that multiple claims based both in law and in equity, including a claim filed under the MCPA, "may be brought in the circuit court").

¶ 34. Because of our precedent in Walgreen , I believe the proper course is to reverse and remand this case to the Chancery Court of Hinds County and to direct that the action be transferred to a circuit court of the State's choice so that it may properly invoke its choice of venue under Section 11-11-3(1).

¶ 35. For these reasons, I respectfully dissent.

COLEMAN AND CHAMBERLIN, JJ., JOIN THIS OPINION IN PART.

¶ 36. Venue is a function of statute, or so we have written in several opinions over the decades. See, e.g. , State v. Walgreen Co. , 250 So. 3d 465, 474 (¶ 27) (Miss. 2018) ; Forrest Gen. Hosp. v. Upton , 240 So. 3d 410, 415 (¶ 21) (Miss. 2018) ; Park on Lakeland Drive, Inc. v. Spence , 941 So. 2d 203, 206 (¶ 8) (Miss. 2006) ; Flight Line, Inc. v. Tanksley , 608 So.2d 1149, 1155 (Miss. 1992). The Court's job when interpreting a statute is to honor the intent of the Legislature. City of Jackson v. Allen , 242 So. 3d 8, 15 (¶ 28) (Miss. 2018). Despite the axiomatic nature of the preceding two principles, today the majority runs roughshod over a crystal-clear expression by the Legislature of its intent that venue of a civil action sounding under Mississippi's Consumer Protection Act cannot lie in Hinds County absent the consent of the parties. Accordingly and with respect, I must dissent.

I. The majority fails to explain why the prohibition against venue in Hinds County, found in Section 75-24-9, continues to apply to non-Mississippi defendants.

¶ 37. In his opinion, which I join to the extent that it establishes the effect of Section 75-24-9 as a specific venue statute, the Chief Justice has well explained why, as a more specific venue statute, the venue requirements of the Consumer Protection Act govern over the general venue statute and prohibit venue in Hinds County. The majority offers precious little response to the established authority upon which the Chief Justice relies, and I write to explain why, in my opinion, what little resistance is offered fails.

¶ 38. In dismissing the application of Section 75-24-9, the majority takes the novel position that the statute only applies to Mississippi defendants; two fatal problems face the majority's reasoning.

¶ 39. First, as explained by the majority, it is an amendment to the Registered Agent Act forbidding the use of a registered agent's address in determining venue that spawns today's difficulty. Prior to the amendment, nobody would dispute that Section 75-24-9's prohibition against venue in Hinds County absent consent would apply to non-Mississippi defendants or, put differently, that the Legislature intended that non-Mississippi defendants could not be sued in Hinds County without agreeing to it. Indeed, pursuant to the majority's reasoning, a non-Mississippi defendant who nevertheless maintains a principal place of business in Mississippi would fall within the statute. A change to another statute that renders one disjunctive clause of three inapplicable to only part of a class of defendants does not suffice to indicate that the Legislature intended all of the provisions of Section 75-24-9 to cease having any effect as to the remaining part of the class of defendants in question.

¶ 40. Second, if the majority means what it writes when it holds that Section 75-24-9, in its entirety, no longer applies to non-Mississippi defendants, then the majority must explain why the Legislature's decision to exclude non-Mississippi defendants from its scope does not lead to the inexorable conclusion that the Legislature intended to create a venue gap and exclude non-Mississippi defendants from suit anywhere in Mississippi pursuant to the Consumer Protection Act. It is one thing to render part of Section 75-24-9 inapplicable to certain non-Mississippi defendants (who maintain no principal place of business in Mississippi); it is quite another to hold that the Legislature has expressed a positive intent to exclude all out-of-state defendants from the specific venue statute.

II. Although Section 75-24-9 continues to apply to non-Mississippi defendants, the majority correctly holds that Section 11-11-3 applies to the instant chancery court case.

¶ 41. Although, as explained above, the prohibition against venue in Hinds County absent consent of the parties applies, I agree with the majority in the following respects. First, the venue provision of the Mississippi Consumer Protection Act fails to set venue for the underlying civil action. Second, the Registered Agents Act has abrogated our caselaw that allows the Court to use the address of a corporate entity's registered agent for service of process to determine its principal place of business within Mississippi for the purpose of setting venue. Third, the chancery court venue statute, Section 11-5-1, does not provide an appropriate venue for the above-styled case. Furthermore, I agree that the circuit court general venue statute, Section 11-11-3, does provide the appropriate venue. Accordingly I part ways with the Chief Justice's opinion here, as he would hold that Section 11-11-3 applies only to cases filed in circuit court. As explained below, we have already held that Section 11-11-3 applies to cases filed in courts other than circuit court.

¶ 42. Mississippi Code Section 11-11-3 provides, in pertinent part, as follows:

(1)(a)(i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.
(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

Miss. Code Ann. § 11-11-3 (Rev. 2004) (emphasis added).

¶ 43. Although the State chose to file the above-styled case in chancery court, it is a case over which the circuit court enjoys original subject-matter jurisdiction. See State v. Walgreen Co. , 250 So.3d 465 (Miss. 2018). In Holmes v. McMillan , 21 So.3d 614 (Miss. 2009), the Court acknowledged that Section 11-11-3 applies to determine venue in county court because county and circuit courts have concurrent jurisdiction as long as the statutory requirements for county court jurisdiction are met. Id. at 618 n.2 (¶ 11). As it can with county court, a circuit court can share concurrent jurisdiction with a chancery court. KD Hattiesburg 1128, Inc. v. Turtle Creek Crossing, LLC , 237 So.3d 157, 162-163 (¶¶ 21-24) (Miss. 2018). Pursuant to the holding in Walgreen , such is the case today. Because concurrent jurisdiction existed between the circuit and chancery court in the case sub judice , and because we have applied Section 11-11-3 to county courts in reliance upon the combination of concurrent jurisdiction with the circuit court's and Section 11-11-3's language extending its scope to "actions of which the circuit court has original jurisdiction," I agree with the majority that Section 11-11-3 applies. However, as set forth above and in the Chief Justice's dissent, Section 75-24-9 excludes Hinds County as a permissible venue. Accordingly, the chancery court's order should be reversed, and the case should be remanded for the parties to attempt to find another permissible venue.

CHAMBERLIN AND ISHEE, JJ., JOIN THIS OPINION. WALLER, C.J., JOINS THIS OPINION IN PART.

      https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3235603/ (last visited October 16, 2018).

      The State's complaint contains allegations of violations of Mississippi's Medicaid Fraud Control Act, Mississippi Code Sections 43-13-201 to -607 (Rev. 2015). Pursuant to the Medicaid Fraud Control Act, actions "may be filed in the circuit court of the First Judicial District of Hinds County ...." Miss. Code Ann. § 43-13-223 (Rev. 2015). The State offered no argument about why the Mississippi Medicaid Fraud Control Act did not control venue. Unlike the MPCA, no consent is needed under the Medicaid Fraud Control Act for venue to be proper in Hinds County.

      Mississippi Rule of Civil Procedure 82(d) provides,
      When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.
      M.R.C.P. 82(d).

      Cephalon has since withdrawn its authority to transact business in the State of Mississippi and has appointed the Mississippi Secretary of State as its agent for service of process. The State argues that if the RAA did not make the location of a registered agent irrelevant for venue purposes, Cephalon would now be considered a resident of Hinds County for venue purposes. However, because proper venue is determined at the time the lawsuit originally is filed, this contention is without merit. See Crenshaw v. Roman , 942 So.2d 806 (Miss. 2006).

      The State points out that its complaint also contains four common-law causes of action under which venue is proper in the circuit court. The State argues that Mississippi Rule of Civil Procedure 82(c) clearly allows a suit to be brought in any county in which any one of the claims could have been brought. Rule 82(c) provides,
      Where several claims or parties have been properly joined, the suit may be brought in any county in which any one of the claims could properly have been brought. Whenever an action has been commenced in a proper county, additional claims and parties may be joined, pursuant to Rules 13, 14, 22 and 24, as ancillary thereto, without regard to whether that county would be a proper venue for an independent action on such claims or against such parties.
      M.R.C.P. 82(c). As the State argues, the above claims are allowed to be tried in circuit court.

      As more fully explained below, I do not join the Chief Justice's dissent to the extent that he would hold that the general venue statute, Section 11-11-3, only applies to cases filed in circuit court.


source: Caselaw Access Project

author: GRIFFIS, P.J., FOR THE COURT:

license: Public Domain

text:
    Donte SHEPARD a/k/a Donte Mevalone Shepard a/k/a Donte M. Shepard, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01567-COA
    Court of Appeals of Mississippi.
    January 16, 2018 Rehearing Denied May 8, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA M. AINSWORTH
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Shepard appeals his capital-murder conviction and life sentence. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 17, 2013, at 9:33 p.m., Jackson police were dispatched to a residence on Randall Street about a possible shooting. The responding officer found the front door of the residence open and Tony Brown lying just inside on the floor of the living room bleeding, mortally wounded, and unable to speak. Brown had called 911 himself and was holding money in one hand and a cell phone in the other.

¶ 3. Brown passed away while ambulance attendants were preparing him for transport. He had suffered nine gunshot wounds. One projectile was recovered from Brown's abdomen during the autopsy.

¶ 4. There was evidence of forced entry into Brown's house. Burglar bars on one of the windows had been tampered with, and the window was forced open. Additionally, a crowbar was found on the hood of a car parked near the opened window, and there were footprints on the hood of the car. The foot impressions were insufficient for forensic comparison, and no usable fingerprints were found on the crowbar.

¶ 5. Investigators found multiple spent .40-caliber shell casings inside Brown's house in various rooms and bullet holes throughout the house. Brown's bedroom was in disarray, and drawers appeared to have been rifled through, indicating a burglary.

¶ 6. On November 20, 2013, detectives with the Jackson Police Department interviewed Willie Thomas, who was thirteen years old at the time of the incident. In his recorded interview, Thomas told the police that he was walking home from the barbershop and was right by the pathway in front of Brown's house when he heard gunshots. Thomas stated he saw three guys, later identified as Shepard, Jordan Johnson, and Lucious Perkins, running from the house.

¶ 7. Thomas stated that Johnson and Perkins ran through a field and jumped a fence. Thomas heard the man identified as Perkins say something about having to "get that money."

¶ 8. According to Thomas, Shepard initially ran, but then returned to the scene. Thomas stated that before the police arrived, Shepard was hiding near an abandoned house. Thomas explained that Shepard was in the "cut" or "look[-]through pathway" and was on the phone. Thomas agreed that Shepard was "looking out" for the other guys. After the police arrived on the scene, Shepard came out.

¶ 9. Additionally, Thomas explained that Shepard knew Brown and that Shepard had previously broken into Brown's house. When Brown confronted Shepard about it, Brown and Shepard exchanged verbal death threats. Thomas advised that the confrontation occurred on the day of the shooting at 6:05 p.m.

¶ 10. During the interview, Thomas was given photo lineups and identified Shepard, Johnson, and Perkins as the three men he saw the night of the shooting. Thomas advised that Johnson and Perkins were in Brown's house, but Shepard was outside, on the phone, "looking out." Thomas wrote on the photo lineups and identified which man was the shooter. Specifically, Thomas wrote, "this man was sho[o]ting at him," and "this man was sho[o]ting the man [in] the back."

¶ 11. Based on Thomas's recorded statement, Shepard, Johnson, and Perkins were arrested. Two .40-caliber semiautomatic pistols were recovered from Johnson's house. A ballistics comparison was conducted, which showed that projectiles recovered from Brown's house and the autopsy were fired from one of the pistols in Johnson's possession.

¶ 12. Shepard, Johnson, and Perkins were subsequently indicted on the charge of capital murder. The indictment charged Shepard as follows:

[O]n or about November 17, 2013[,] while acting in concert with and/or aiding, abetting, assisting[,] or encouraging another or others, [Shepard] did willfully, unlawfully, and feloniously kill Tony Brown, a human being, without the authority of law, with or without any design to effect death while and when engaged in the commission of the crime of burglary of a dwelling, or any attempt to commit such felony, by shooting the said[ ] Tony Brown with a firearm, in violation of Mississippi Code Annotated [section] 97-3-19(2)(e) (1972).

¶ 13. At trial, the State's key witness was Thomas. Thomas testified that he was on the corner of Randall Street and Martin Luther King Jr. Drive when he heard gunshots. He saw three guys, including Shepard, who "was standing outside watching out." Thomas stated that at the time of the gunshots, Shepard was standing in the front of Brown's house. The other two guys, Johnson and Perkins, ran out of the house and went through the pathway near Brown's house.

¶ 14. On cross-examination, Thomas was asked to clarify whether he saw Shepard hiding in an abandoned house close to the scene of the crime. Thomas explained that it was not an abandoned house, but two abandoned buildings that were close together with "a little space open." Thomas stated he saw Shepard on the street between the abandoned buildings and that Shepard was on the phone. Thomas further stated no one could see Shepard because the buildings were so close together. Thomas testified that when the police arrived, Shepard walked past the police, spoke to one of the officers, and then left.

¶ 15. During Thomas's cross-examination, defense counsel played portions of Thomas's recorded interview with the police. Thomas acknowledged that it was his cousin who told him that Shepard had previously broken into Brown's house and had exchanged death threats with Brown. Thomas admitted that he did not actually hear Brown and Shepard exchange threats.

¶ 16. Regarding the photo lineups, Thomas testified that despite his notations, he did not see who shot Brown. Thomas acknowledged that what he wrote on the photo lineups "wasn't exactly the truth." Defense counsel then asked whether there was anything else that Thomas needed to clarify, to which Thomas replied, "no, sir."

¶ 17. On redirect, Thomas was adamant that at the time he heard gunshots, he saw Shepard standing by the abandoned buildings, "looking out." Thomas testified that following the shooting, Shepard "stayed, then he left, then he came back to the scene."

¶ 18. Detective Daryl Owens with the Jackson Police Department testified that he observed Shepard at the scene of the crime, standing around after the shooting. Detective Owens explained that in his experience as a detective, he had seen defendants return to the scene of the crime.

¶ 19. Shepard did not testify at trial, but called four witnesses on his behalf. Rosalind Howard testified that Shepard was with her on the day of the shooting. Howard explained that she and Shepard went to the grocery store. Shortly after they returned from the grocery store, Shepard, Howard's niece, Hazel, and Tommie Lewis went to the store for snacks. Howard testified that when Shepard, Hazel, and Lewis returned to her house, they were talking about an encounter Shepard had with Brown "a couple [of] days before." According to Howard, Shepard said that Brown had confronted him and had heard that he had been in Brown's house. Shepard told Brown that he did not know what Brown was talking about. However, Howard testified that Shepard admitted to her that he had broken into Brown's house in the past.

¶ 20. At some point, Shepard spilled hot sauce on his pants and left Howard's house to change clothes. Although Howard did not recall what time that occurred, she testified that it was dark outside. Howard stated Shepard left by himself and was gone no more than ten or fifteen minutes. Howard acknowledged that Shepard could have committed the crime during the time that he had left her house.

¶ 21. Lewis testified that around 9:38 to 9:40 p.m., he, Hazel, and Shepard were walking out of the door to go to the store when they heard two or three gunshots. They proceeded to the store to get there before it closed at 10:00 p.m. When they returned to Howard's house, they saw a news report about a shooting on Randall Street.

¶ 22. On cross-examination, Lewis initially stated that Shepard was with him the whole night. However, upon further examination, Lewis acknowledged that Shepard left Howard's house to get some clothes, but was gone "no longer than five minutes."

¶ 23. Codefendant Johnson, who pled guilty to the murder of Brown, testified that on November 17, 2013, he and a man named "Little John" got a crowbar from Perkins's house and used the crowbar to pry open the window to Brown's house. Little John entered the house first, followed by Johnson. After Johnson took items from Brown's house, he climbed back out the window. At that time, Brown pulled up in his vehicle, ran straight toward the front door, and started yelling, "I got you MF now." Johnson stated he then heard eight or nine gunshots and "jumped back across the fence and ran back through the pathway."

¶ 24. Johnson stated he was familiar with the pathway near Brown's house. Johnson described the pathway as "a little grass field" and said it was close to Brown's house, on the side of the house. Johnson testified that he used the pathway to get to Brown's house.

¶ 25. Additionally, Johnson testified that he did not see or speak to Shepard on the day of the crime, and did not plan or conspire with Shepard prior to the crime. However, Johnson admitted that following his arrest, he lied to the police and told them he did know what had happened. Moreover, Johnson admitted he never told the police about Little John.

¶ 26. Codefendant Perkins pled guilty to accessory before the fact to burglary. Perkins testified that on November 17, 2013, around 8:30 or 9:00 p.m., Johnson and Little John came to his house and asked for a crowbar. Perkins stated he heard gunshots approximately twenty to thirty minutes later. Perkins further testified he did not see Shepard on the day of the shooting.

¶ 27. On cross-examination, Perkins acknowledged that during his plea hearing, he never mentioned Little John. Instead, during his plea, Perkins advised the circuit court, under oath, that he gave the crowbar to Johnson. When asked to explain, Perkins responded that at the time he pled guilty, he simply did not remember Little John. Perkins agreed that he did not tell the same "truth" at trial as he told during his plea hearing.

¶ 28. In rebuttal, the State presented Detective Owens, who interviewed Shepard after his arrest. During the recorded interview, Shepard advised Detective Owens that he was at Howard's house on November 17, 2013. Shepard further advised that he, Hazel, and Lewis went to the store around 7:00 p.m. Shepard denied going to the grocery store with Howard.

¶ 29. Shepard stated he did not hear gunshots on the night of the shooting. Shepard learned of the shooting from a phone call he received when he returned from the store, which, according to Shepard, was around 8:00 p.m. However, as Detective Owens noted, the evidence showed the shooting did not occur until 9:33 p.m.

¶ 30. Shepard further stated that although he knew of Brown, he had never spoken to him. Shepard advised he did not have any involvement with Brown's house, Johnson, or Perkins on November 17, 2013.

¶ 31. Following a jury trial, Shepard was found guilty of capital murder. He was sentenced to serve life in the custody of the Mississippi Department of Corrections, without the possibility of parole. Shepard subsequently filed a motion for a judgment notwithstanding the verdict or, in the alternative, a motion for a new trial, which the circuit court denied.

¶ 32. Shepard now appeals and raises five assignments of error: (1) the evidence was insufficient to support his conviction, (2) the verdict was contrary to the weight of the evidence, (3) the circuit court erred in refusing his circumstantial-evidence jury instruction, (4) the circuit court erred in sustaining the State's reverse-Batson challenge, and (5) he received ineffective assistance of counsel.

ANALYSIS

I. Sufficiency of the Evidence

¶ 33. Shepard first argues the evidence was insufficient to support his conviction. Shepard claims Thomas's testimony "created nothing more than an inference that [he] was merely present near the scene of the crime and does not support any rational conclusion beyond a reasonable doubt that [he] was an accomplice, before or after the fact, to the burglary or homicide."

¶ 34. In considering whether the evidence is sufficient to sustain a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Williams v. State , 35 So.3d 480, 485 (¶ 16) (Miss. 2010) (citation omitted). Where the facts and inferences "point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render." Id. (citations omitted). However, if "reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient." Id. (citations omitted).

¶ 35. The indictment alleged that Shepard, "while acting in concert with and/or aiding, abetting, assisting[,] or encouraging another or others, did willfully, unlawfully, and feloniously kill Brown ... while and when engaged in the commission of the crime of burglary of a dwelling." "One who aids and abets another in the commission of a crime is guilty as a principal." Hughes v. State , 983 So.2d 270, 276 (¶ 14) (Miss. 2008). "To aid and abet the commission of a felony, 'one must do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime or participate in the design of the felony.' " Id. (quoting Vaughn v. State , 712 So.2d 721, 724 (¶ 11) (Miss. 1998) ). "[S]ome degree of participation in the criminal act must be shown in order to establish any criminal liability." Id. at 277 (¶ 16).

¶ 36. Here, in his statement to the police, Thomas stated Shepard was standing in the pathway or cut-through near Brown's house and was on the phone. Thomas agreed that Shepard was "looking out" for the other guys in the house.

¶ 37. At trial, Thomas again testified that he saw three guys at Brown's house, including Shepard, who was standing outside, on the phone, "watching out." Thomas further testified that Shepard left the scene after gunshots were fired, but subsequently returned. This testimony was confirmed by Detective Owens, who testified that he too saw Shepard at the scene following the shooting.

¶ 38. Regarding Johnson's involvement, Thomas testified that following the shooting, he saw Johnson run through a field and jump a fence. This testimony was consistent with Johnson's testimony, who said that following the gunshots, he jumped the fence and ran through the pathway, which he described as a "grass field."

¶ 39. Although Johnson testified that Shepard was not involved in the crimes, he confirmed the existence of the pathway and its proximity to Brown's house. Moreover, Johnson testified that he utilized the pathway to break into Brown's house. Importantly, it was this pathway where Thomas stated he saw Shepard standing, watching out.

¶ 40. While Shepard denied any involvement in the crimes, he advised the police that he returned to Howard's house around 8:00 p.m. According to Howard, Shepard subsequently left her house to change clothes. Detective Owens testified that Shepard would have had sufficient time to get from Howard's house to Brown's house prior to the shooting at 9:33 p.m.

¶ 41. Overall, considering the evidence in the light most favorable to the State, we find sufficient evidence existed to support Shepard's conviction. Indeed, sufficient evidence was presented to show that Shepard assisted or participated in the commission of the felony. Id. Thus, Shepard's motion for a judgment notwithstanding the verdict was properly denied.

II. Weight of the Evidence

¶ 42. "In reviewing the denial of a motion for a new trial 'based on an objection to the weight of the evidence,' this Court 'will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.' " Kirk v. State , 160 So.3d 685, 697 (¶ 31) (Miss. 2015) (citation omitted). The evidence is weighed in the light most favorable to the verdict. Id. "A new trial should be granted on the basis of the weight of the evidence 'only in exceptional circumstances, when the evidence weighs heavily against the jury's verdict.' " Hughes , 983 So.2d at 277 (¶ 22) (quoting Wilson v. State , 936 So.2d 357, 363 (¶ 16) (Miss. 2006) ).

¶ 43. Shepard argues the verdict was contrary to the weight of the evidence since Thomas's testimony was inconsistent, unreasonable, and substantially impeached. "Conflicts in the evidence are for the jury to resolve." Williams v. State , 64 So.3d 1029, 1033 (¶ 13) (Miss. Ct. App. 2011). "Any factual disputes are properly resolved by the jury and do not mandate a new trial." Sneed v. State , 31 So.3d 33, 43 (¶ 33) (Miss. Ct. App. 2009) (quoting Moore v. State , 859 So.2d 379, 385 (¶ 26) (Miss. 2003) ).

¶ 44. Although Thomas's statement to the police and his subsequent trial testimony differed at times, the testimony was not substantially inconsistent. Thomas maintained throughout litigation that at the time of the gunshots, he saw Shepard standing outside of Brown's house, on the phone, "watching out." While Thomas acknowledged certain lies during his testimony, it was for the jury, not this Court, to weigh the evidence and the credibility of the witnesses and to resolve the issues. See Williams, 64 So.3d at 1033 (¶ 13).

¶ 45. Overall, we do not find Thomas's testimony was so inconsistent and implausible that, "when considered together, it [was] an exceedingly improbable and unreasonable story." Ross v. State , 954 So.2d 968, 1017-18 (¶ 135) (Miss. 2007). Moreover, having considered the evidence presented, we do not find the verdict to be so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Accordingly, the circuit court did not err in denying Shepard's motion for a new trial.

III. Circumstantial-Evidence Jury Instruction

¶ 46. Shepard next argues the circuit court erred in refusing his requested circumstantial-evidence jury instruction. "This court reviews a grant or denial of a jury instruction under an abuse-of-discretion standard." McInnis v. State , 61 So.3d 872, 875 (¶ 10) (Miss. 2011).

¶ 47. "Circumstantial evidence is 'evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.' " Id. at (¶ 11) (quoting Keys v. State , 478 So.2d 266, 268 (Miss. 1985) ). Where all evidence tending to prove guilt is circumstantial, the circuit court "must grant a jury instruction that every reasonable hypothesis other than that of guilt must be excluded in order to convict." Kirkwood v. State , 52 So.3d 1184, 1186 (¶ 10) (Miss. 2011). "While evidence does not always fall neatly into one category, examples of direct evidence include ... eyewitness testimony 'to the gravamen of the offense charged.' " Id. at 1187 (¶ 10) (quoting Mack v. State , 481 So.2d 793, 795 (Miss. 1985) ).

¶ 48. Here, Thomas testified that at the time he heard gunshots, he saw Shepard outside of Brown's house, on the phone, "watching out." He had previously told the police that he saw Shepard in the pathway on the phone, and agreed that Shepard was looking out for the other guys.

¶ 49. Thomas's eyewitness testimony is direct evidence of Shepard's involvement in the crime. Thus, this case is not based solely on circumstantial evidence. Accordingly, the circuit court did not abuse its discretion in refusing Shepard's circumstantial-evidence jury instruction.

IV. Reverse -Batson Challenge

¶ 50. In Batson v. Kentucky , 476 U.S. 79, 82-84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the prosecution may not use peremptory strikes in a discriminatory manner. The Court subsequently found that Batson applies to both prosecutors and defendants. Georgia v. McCollum , 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). "[W]hen the Batson analysis is used against the defense, this Court has referred to it as a reverse-Batson challenge." Hardison v. State , 94 So.3d 1092, 1097 (¶ 17) (Miss. 2012).

¶ 51. During jury selection, the State raised a reverse- Batson challenge after the defense struck four white males from the jury. On appeal, Shepard takes issue with only one of the individuals, William Barber, and argues the circuit court failed to conduct the proper Batson analysis.

¶ 52. Circuit courts are afforded great deference in their determination of Batson issues. Hatten v. State , 628 So.2d 294, 298 (Miss. 1993). A circuit court's determination of a Batson issue will not be reversed on appeal unless its findings are clearly erroneous. Id.

¶ 53. A Batson challenge is analyzed using a three-part test:

First, the party objecting to the peremptory strike of a potential juror must make a prima facie showing that race was the criterion for the strike. Second, upon such a showing, the burden shifts to the [opposing party] to articulate a race-neutral reason for excluding that particular juror. Finally, after a race-neutral explanation has been offered ..., the [circuit] court must determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory strike, i.e., that the reason given was a pretext for discrimination.

Hardison , 94 So.3d at 1097-98 (¶ 17) (citation and emphasis omitted).

A. Prima Facie Showing

¶ 54. To establish a prima facie case, the opponent of a peremptory strike must establish that:

(1) the opponent is a member of a cognizable class, such as a racial group; (2) the proponent has used peremptory strikes to remove venire members in that class; and (3) the facts and circumstances give rise to an inference that the proponent used peremptory strikes to purposefully remove individuals of that class.

Id. at 1098 (¶ 18).

¶ 55. Based on this Court's highly deferential standard, we cannot say that the circuit court erred in finding a prima facie case of racial discrimination. The record shows that while Shepard accepted as a juror the only white venire member on the first panel, he exercised peremptory strikes against all but one white venire member on the second panel. Specifically, of the four viable white venire members on the second panel, Shepard exercised peremptory strikes against three. Additionally, of the eight viable venire members on the third panel, only one was white, and was struck by Shepard.

B. Race-Neutral Reasons

¶ 56. In his initial response to the State's challenge of Barber, defense counsel stated that Barber did not respond to any questions during voir dire and "laughed too many times at [the prosecutor's] jokes and did not like [his] jokes at all." Additionally, defense counsel explained that Barber had a master's degree and may not be able to "conceptualize or even give proper context to what's going on [in Brown's neighborhood]."

¶ 57. Demeanor, educational background, and employment history are sufficient race-neutral reasons for striking venire members. Davis v. State , 660 So.2d 1228, 1242 (Miss. 1995). When a party offers a valid race-neutral reason, the circuit court "must allow the strike unless the other party demonstrates that the valid race-neutral reason was a pretext for discrimination." Hardison , 94 So.3d at 1100 (¶ 28).

¶ 58. Here, although the circuit court did not specifically find that Shepard's reasons for the peremptory strike were race-neutral, the record shows the court continued to the third part of the Batson analysis and required the State to respond in an effort to determine whether the reasons were pretextual. We do not find the circuit court's conduct to be improper.

C. Pretext

¶ 59. In response to Shepard's race-neutral reasons, the prosecutor stated he did not recall Barber "liking [his] material any more so than counsel opposite's"

and noted that Barber was attentive, "paying attention to the questions, responding with a nod or a head shake as asked." Additionally, in response to defense counsel's statement that Barber failed to respond to any questions during voir dire, the prosecutor noted that defense counsel had accepted other individuals as jurors who did not respond to questions or participate during voir dire, including at least one black male.

¶ 60. As far as Barber's master's degree and his alleged inability to relate to or understand the neighborhood in which the crime occurred, the prosecutor noted that at no time did defense counsel ask Barber what type of work he did or question the field in which Barber had his degree. Moreover, when asked whether he knew where Barber lived, defense counsel stated he did not recall, but thought Barber lived in Clinton. However, Barber was in fact a resident of Jackson.

¶ 61. The circuit court found Shepard's reasons for striking Barber were pretextual and an effort to engage in purposeful discrimination. Based on our review of the record and given the great deference afforded to the circuit court, we do not find the circuit court's determination was clearly erroneous. The record indicates Shepard's reasons for striking Barber were a thinly veiled way of saying that Barber, an educated white male, would be unable to relate to or understand a black neighborhood. However, simply because Barber has a master's degree in some unknown field does not make him incapable of understanding a neighborhood such as Brown's. Thus, the circuit court's conclusion that such an explanation was a pretext for discrimination is not reversible error.

V. Ineffective Assistance of Counsel

¶ 62. Shepard last argues he received ineffective assistance of counsel. Specifically, Shepard claims his counsel was ineffective for: (1) "eliciting testimony [through Thomas and Howard] that he had been accused of and possibl[y] admitted to burglarizing Brown's house at a previous time" and (2) failing to request an alibi instruction. To prove ineffective assistance of counsel, Shepard must show: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. To overcome this presumption, Shepard "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

¶ 63. "[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Dartez v. State , 177 So.3d 420, 422-23 (¶ 18) (Miss. 2015) (citation omitted). "We may, however, address an ineffectiveness claim on appeal if the presented issues are based on facts fully apparent from the record." Id. at 423 (¶ 18).

¶ 64. Here, Shepard's ineffective-assistance-of-counsel claim is based on facts not fully apparent from the record. Accordingly, we are unable to adequately and properly address the claim on direct appeal. As a result, we affirm the circuit court's judgment and deny relief preserving Shepard's right to pursue his claim through a petition for post-conviction collateral relief.

CONCLUSION

¶ 65. We find Shepard's assignments of error on appeal are without merit. Accordingly, we affirm.

¶ 66. AFFIRMED .

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

      At trial, Johnson testified he did not shoot or kill Brown.

      Shepard was read his Miranda rights and signed a waiver of those rights. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Additionally, his counsel was present during the interview.

      See Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      Shepard is an African American male.

      The record shows that the first panel was Panel 9, the second panel was Panel 10, and the third panel was Panel 11.


author: BARNES, J., FOR THE COURT:

text:
    Danny WILSON a/k/a Danny Martez Wilson, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00053-COA
    Court of Appeals of Mississippi.
    March 13, 2018 Rehearing Denied July 31, 2018
    ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Danny Wilson was convicted of first-degree murder and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). He filed a motion for a new trial, claiming newly discovered evidence shows he acted in self-defense. Following the trial court's denial of his motion, Wilson appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 27, 2014, Wilson shot and murdered Roviel Mays in Port Gibson, Mississippi. He was indicted for first-degree murder, and a jury trial was held on September 15, 2015, in Claiborne County Circuit Court. At trial, three eyewitnesses testified to similar versions of what occurred that evening. Clyde Johnson said that he, Mays, and Jeremy Bailey had gone to West Side Theater, a nightclub, and stayed there until approximately 2:00 a.m. The three men, along with Jakarla Young and another female, got into Johnson's car and proceeded to the home of Marquis and Natasha Shaw. Wilson, driving a white car, came up behind Johnson's car and passed him at a light. When Johnson and the others arrived at the Shaws' home, Wilson was there, sitting in his car. According to Johnson, Mays got out, walked toward the home, but "all of a sudden, he turned around and looked like h[e] and Danny Wilson [were] talking, and ... the interior light [of the car] came on, and then Danny shot. When he shot, he left." After Mays was shot, Marquis "shot toward Danny's car a couple of times." On cross-examination, defense counsel asked Johnson if Mays was carrying a gun. He replied: "I know for sure he didn't have no gun in my car.... I didn't search him, but I know he didn't have no gun.... Didn't nobody have no gun."

¶ 3. Young testified she accepted a ride from Johnson to the Shaws' home that evening, and she observed that Wilson "popped up at a light" next to them and that he passed them. When she and the others reached the home, Wilson was there. After Mays walked over to Wilson's car, Young heard a shot and saw Mays fall to the ground. She also corroborated Johnson's testimony that Marquis came out of the house at that point and began shooting at Wilson's car.

¶ 4. Natasha Shaw testified that she was home that evening at approximately 2:45 a.m. when she heard a "loud noise." When she went outside to investigate, she saw Wilson pull up in a white car. Shortly thereafter, Johnson "pulled up," and Mays got out of Johnson's car and started walking toward the house. But after Mays got to her driveway, he stopped and walked over to Wilson's car. Mays "leaned into the car"; so Natasha thought the two men were just talking. Then she heard the gunshot and saw Mays fall "back on the ground."

¶ 5. The forensic pathologist testified that Mays died from a gunshot wound to his head, specifically his right eye, and the range of the shot was from "around three inches out to three feet." A firearms expert with the Mississippi Forensic Science Laboratory stated that the projectile retrieved from Mays's body "b[ore] different characteristics than any of the others that [she] was able to classify" and that "it could not have been fired from the same gun" as the other projectiles that were found.

¶ 6. After the State rested, the defense moved for a directed verdict, which the trial judge denied. Defense counsel then called two witnesses who were at the West Side Theater that evening. Kordell Bates said he saw Johnson, Mays, and Bailey at the club with guns. On cross, he acknowledged that the three men had been "talking trash" to Wilson that night. When questioned whether Mays had committed any prior violence against Wilson, another witness, Lee Hedrick, responded affirmatively: "Yes, ma'am ... he came to Pattison several times shooting up.... I done seen him do it myself plenty of times. [Wilson is] the one that talk[ed] about leav[ing] it alone[.]" He also claimed the other men were carrying weapons at the nightclub, but he admitted that he never saw Wilson at the West Side Theater that night. He also said that he was not at the Shaws' home and was not a witness to the shooting.

¶ 7. Wilson was convicted of first-degree murder and sentenced to life in the custody of the MDOC. In his motion for a new trial, Wilson asserted numerous assignments of error, including that there was new evidence in the case. He attached an affidavit from Young that stated Mays had a gun in his pants when he walked up to Wilson, and Mays hit Wilson "on the side of his head." A hearing was held on November 24, 2015. Young testified that after the trial, she approached defense counsel to say that she had not given a complete account of what had happened at the shooting. She claimed that when Mays approached Wilson's car, "he had his hands in his pants as if he had a gun." She said: "You just know how young boys[,] when they're ready to pull out and shoot, so he walked to the car and he hit [Wilson], and that's when the ... gunshot was fired from Danny Wilson's car." She averred that Mays used the gun to hit Wilson. Wilson's grandmother, Theresa Wilson, testified that Mays had threatened Wilson's life on several occasions prior to the shooting. The defense proffered an affidavit from Wilson's girlfriend, which simply stated the two were in a relationship, and a statement by Jason Curtis that said he had seen Mays carrying a weapon "at all times that he had run into him."

¶ 8. The trial court denied Wilson's motion, and he now appeals.

DISCUSSION

¶ 9. Wilson argues that the trial court should have granted him a new trial based on the newly discovered evidence, specifically Young's testimony that Mays was carrying a weapon, and this evidence established a basis to show that he shot Mays in self-defense. A trial court's decision to grant or deny a new trial based on newly discovered evidence is discretionary, "and we will not reverse a trial court's finding unless [it] abused that discretion." Witherspoon v. State , 767 So.2d 1065, 1067 (¶ 7) (Miss. Ct. App. 2000) (citing Williams v. State , 669 So.2d 44, 55 (Miss. 1996) ). A movant seeking a new trial based on newly discovered evidence must show:

(1) the new evidence was discovered after the trial; (2) it could not by due diligence have been discovered prior to trial; (3) it is material to the issue and not merely cumulative or impeaching; and (4) the new evidence will probably produce a different result or verdict in the new trial.

Van Norman v. State , 114 So.3d 799, 801 (¶ 11) (Miss. Ct. App. 2013). "Relief must be denied if the movant fails to meet any one of these four elements." Id.

¶ 10. We find that the evidence presented at the hearing was either known prior to trial, "reasonably discoverable" at the time of trial, or "merely cumulative." Regarding the testimony of Wilson's grandmother-that Mays had threatened Wilson on prior occasions-defense counsel stipulated at the hearing that she "was aware of all this prior to the trial" and "it was [counsel's] decision not to call her" as a witness. Counsel explained that she elected not to present such evidence at trial because she was worried it would "strengthened the State's motive for my client having shot Mr. Mays." As to the affidavits/statements by the other two witnesses, Curtis and Robinson, those were "merely cumulative" of evidence presented at trial and would not have changed the result.

¶ 11. We further find Young's testimony that Mays possessed a gun, by due diligence, could have been discovered prior to trial. Young argued at the hearing that the State did not ask her the right question at trial to elicit her testimony that Mays had a gun.

[STATE]: And I gave you a chance to tell what happened, didn't I?
[YOUNG]: Yes, sir.
[STATE]: And you didn't mention what you're saying today, did you?
[YOUNG]: I did, but it was in a different phrase, so basically, yeah, I did, but what I'm telling you now is how the story happened from the beginning.... You didn't ask the question that [defense] just asked me. The extra question she just asked me what happened on the scene with Mays. You didn't ask me that. That's the first time that's been asked.
....
[STATE]: So I asked you about what happened on the scene and you didn't-you had every opportunity to tell me that prior to trial, didn't you?
[YOUNG]: Right, but like she got more into detail than you.

However, the trial transcript shows that during its case-in-chief at trial, the State openly inquired of Young: "When [Mays] got to Danny's car, what happened?" Young simply replied: "Gunshots went off." Young was free to respond to the State's questioning with her complete version of the shooting and to convey any details she wished to the jury. Yet, she made no mention of Mays's possessing a gun or hitting Wilson with a gun. There was no testimony by any witness at trial that Mays was carrying a gun when he went to talk to Wilson at his car; defense witnesses only stated that they saw Mays with a gun earlier at the club. We also note that defense counsel acknowledged she "did not talk to [Young] prior to trial." As the State argues: "Had defense counsel exercised due diligence and questioned Young prior to trial, this evidence would have been discovered." Therefore, we find no merit to Wilson's contention that Young's testimony could not have been obtained earlier. Furthermore, although Wilson argues that Young "testified falsely at trial," [t]he fact that a witness changes [her] testimony after the trial is not alone an adequate ground for granting a new trial." Woods v. State , 141 So.3d 14, 16 (¶ 10) (Miss. Ct. App. 2014) (quoting Russell v. State, 849 So.2d 95, 107 (¶ 15) (Miss. 2003) ).

¶ 12. Additionally, we conclude that Young's failure to provide this testimony at trial did not prevent Wilson from presenting a theory of self-defense. Defense counsel argued at trial that Wilson was ambushed, gunshots were fired from several directions, and who actually shot Mays was unclear. Wilson presented witnesses who said Mays had possessed a gun earlier that evening. A self-defense jury instruction also was given.

¶ 13. Accordingly, we find the trial court did not abuse its discretion in denying Wilson's motion for a new trial, and we affirm the court's judgment.

¶ 14. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      While there is also discussion in Wilson's reply brief about the admissibility of a victim's propensity for violence, nothing in the record indicates this was ever an issue at trial. In fact, the court allowed the defense to present testimony as to Mays's prior acts of violence through Hedrick's testimony. And the testimony by Wilson's grandmother at the posttrial hearing regarding past incidents involving Mays and Wilson was not challenged by the State. As Wilson has not made any claim of error on this issue, and seems to include it merely to support his claim of self-defense, we consider it only in that context.


author: FAIR, J., FOR THE COURT:

text:
    Kelly MANN a/k/a Kelly M. Mann, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00309-COA
    Court of Appeals of Mississippi.
    May 1, 2018 Rehearing Denied September 4, 2018
    ATTORNEY FOR APPELLANT: KELLY MANN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Kelly Mann appeals the denial and dismissal of his sixth motion for post-conviction relief (PCR) from convictions of murder and armed robbery, the results of his guilty plea. The Circuit Judge held that the "claims/arguments are the same as the ones previously dismissed by this Court" in prior PCR petitions. In his judgment, he again found those claims procedurally barred. Mann again appeals. Basing our decision on the directly on point opinion handed down in Mann v. State , 167 So.3d 279 (Miss. Ct. App. 2015), we again find the judgment before us should be affirmed.

¶ 2. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.