source: Caselaw Access Project

author: MAXWELL, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

license: Public Domain

text:
    Shannon Craig PARKER a/k/a Shannon C. Parker a/k/a Shannon Parker v. STATE of Mississippi
    NO. 2016-CT-01502-SCT
    Supreme Court of Mississippi.
    May 23, 2019
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS, GEORGE T. HOLMES.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, Jackson
    EN BANC.
   MAXWELL, JUSTICE, FOR THE COURT:

¶1. Shannon Craig Parker appeals his aggravated-assault conviction and enhanced sentence. We assigned his appeal to the Court of Appeals, which affirmed. However, the appellate court was divided on one of the three issues Parker raised-whether the trial judge abused his discretion in denying Parker's request for a mental evaluation to pursue a possible insanity defense. We granted Parker's petition for writ of certiorari to review this issue.

¶2. After review, we hold the trial judge did not abuse his discretion when he denied Parker's pro se motion for a mental evaluation. Although given the opportunity to do so, Parker presented no concrete reason establishing the need for a mental evaluation to assist in the pursuit of a viable insanity defense. Instead, Parker offered only unsupported assertions of diminished capacity-a defense not recognized by Mississippi law. We thus affirm.

Background Facts and Procedural History

I. Shooting

¶3. Eric and Edna Burkett were standing outside their home in Hattiesburg, Mississippi, when a white pickup truck stopped in front of them. The driver got out, and the Burketts asked if he needed help. The man mumbled something, grabbed a rifle, and shot Eric, wounding him. The man also fired shots at Edna but missed. Soon after, the police found the white truck in a nearby ditch. Its tires were still spinning. The driver, later identified as Parker, was in the truck. He was arrested and later confirmed by the Burketts as the man who attacked them.

¶4. Parker appeared to be under the influence. So police waited until the next day to interview him. Parker, through a written statement, told police "I don't no [sic] victim. Don't even no [sic] victim. All I remember is sitting spinning." At the interviewing officer's recommendation, Parker underwent a mental evaluation. The evaluation was performed by a licensed professional counselor. Parker told the counselor that he had previously been treated for anxiety and depression. The counselor concluded that Parker "was verbal and responsive" and that "[h]is thought processes were rational."

II. Rejected Plea

¶5. Although indicted on two counts of assault, the State elected to proceed only on the aggravated assault against Eric, with a five-year sentencing enhancement for using a firearm. See Miss. Code Ann. § 97-3-7(2)(a) (Rev. 2014) (aggravated assault); Miss. Code Ann. § 97-37-37(1) (Rev. 2014) (firearm enhancement). A week before the scheduled trial, Parker planned to plead guilty. But at the plea hearing, Parker claimed he had no recollection of the crime. And he maintained he could not verify the State's recitation of the facts. Under the circumstances, the trial judge determined he could not accept Parker's plea. At that point, the judge turned to pretrial matters.

¶6. One of these matters was defense counsel's prior indication that she did not intend to call an expert. At this point, Parker's counsel clarified that "this is where Mr. Parker and I disagree on the strategies of this trial." While Parker wanted a mental evaluation, counsel advised him he did not fall within "the parameters that the law requires in order to request a mental evaluation." Despite the time limit to make such a request having already passed, the trial judge permitted Parker to file a motion for a mental evaluation pro se. The judge also set the matter for a hearing the following Monday. The judge advised Parker that he may need to bring witnesses.

III. Motion for Mental Evaluation

¶7. The hearing began with Parker's counsel confirming she and her co-counsel did not believe they could, as a matter of professional ethics, present Parker's motion. Specifically, counsel stated that, "I don't believe under M'Naghten that I would be able to present that motion." Parker then argued his motion pro se. He first attempted to rely on what he had written in his unsworn motion. The motion cited what the Burketts and arresting officers had allegedly said about this behavior the night he shot Eric. But the trial judge instructed Parker that he could not cite what other people allegedly said outside the courtroom as evidence. The trial judge then asked a series of probing questions about Parker's mental-health and prescription-drug history. Parker recollected he had suffered from anxiety and depression and once attempted suicide. At the end of the hearing, the trial judge concluded:

Basically based on what the [trial] Court has to look at in terms of the treatment for anxiety and depression and the unfortunate event with attempting to commit suicide one time, there's nothing in anything, that information or the demeanor I've seen, the motions that have been filed, the court file itself, my interactions with Mr. Parker to lead me to believe that there's any rational basis for appointing a psychiatrist or psychologist to examine him for the purpose of determining either his competency or sanity.

¶8. The case proceeded to trial three days later. The jury found Parker guilty of aggravated assault and using a firearm during the commission of his crime. The judge sentenced Parker to twenty years for the assault conviction, with an additional five years for the firearm enhancement.

IV. Appeal

¶9. This Court assigned Parker's appeal to the Court of Appeals, which affirmed. Parker presented three issues on appeal: (1) the trial judge erred in allowing the State's firearm expert to testify; (2) the trial judge abused his discretion in denying Parker's motion for a mental evaluation; and (3) the firearm enhancement violated the constitutional prohibition against double jeopardy. While the appellate court unanimously agreed the first and third issues presented no reversible error, the court was equally divided on the second issue. Based on this split, we granted Parker's petition for certiorari review. Although Parker reasserted all three appellate issues in his petition, we limit our review to the issue of Parker's request for a mental evaluation. See Guice v. State , 952 So.2d 129, 133 (Miss. 2007) (recognizing this Court's "unquestionabl[e]" authority to limit the question on certiorari review).

Discussion

I. Competency versus Insanity

¶10. In his petition, Parker echoes the criticism made in the dissenting Court of Appeals opinion that "the trial court was focused on Parker's ability to stand trial rather than his sanity at the time of the incident." Parker v. State , No. 2016-KA-01502-COA, --- So.3d ----, ----, 2018 WL 1602585, at *9 (Miss. Ct. App. Apr. 3, 2018) (Tindell, J., dissenting). The dissent to this opinion lodges the same complaint.

¶11. We recognize, without question, that competency and sanity are two distinct concepts. Sanders v. State , 9 So.3d 1132, 1137 (Miss. 2009). Competency to stand trial is measured at the time of trial. And its standard is "whether the defendant has 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and 'has a rational as well as factual understanding of the proceedings against him.' " Martin v. State , 871 So.2d 693, 698 (Miss. 2004) (quoting Dusky v. United States , 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed. 2d 824 (1960) ). By contrast, insanity-or, more precisely, a defendant's affirmative defense of not guilty by reason of insanity-is measured at the time of the criminal offense. And its standard is the "M'Naghten rule." Davis v. State , 551 So.2d 165, 173 (Miss. 1989). Under this rule:

To establish a defense on the ground of insanity, it must be clearly proved that at the time of committing of the act the accused was laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing, or (2) if he did know it, that he did not know that what he was doing was wrong.

Id. (citing Hunter v. State , 489 So.2d 1086, 1090 (Miss. 1986) ; Laney v. State , 486 So.2d 1242, 1245 (Miss. 1986) ).

¶12. First, we point out that just because Parker advanced his motion for mental evaluation on his claim that he may have been legally insane when he shot Eric does not put the trial court in error for also making an on-the-record ruling on Parker's competency. In fact, then-applicable Uniform Rule of Circuit and County Court Practice 9.06 mandated the trial judge sua sponte order a mental evaluation and conduct a competency hearing if the judge had "reasonable ground to believe that [Parker was] incompetent to stand trial[.]" Parker's actions leading up to the motion hearing at least raised the specter of his potential inability to consult with his court-appointed attorneys or understand the proceedings against him. So we certainly do not fault the trial court for using the hearing to ensure no reasonable ground existed to believe Parker was incompetent to stand trial and face a jury seventy-two hours later.

¶13. Further, that the court assessed Parker's competency does not mean it failed to consider his potential insanity defense as a basis for granting a mental evaluation. The record shows the court permitted Parker to file his pro se motion out of time, despite Parker's counsel informing the court she could not ethically file a motion for mental evaluation because she did not believe Parker met the conditions to receive one. The court was in fact cautious and set the motion for a pretrial hearing, telling Parker the court "intend[ed] to take testimony" and advising him he may have to call witnesses in support.

¶14. At the hearing, when Parker directed the court's attention to his claim that he was insane at the time of the crime, the court patiently responded, "All right, well, I'm here, and I'll sit here as long as we need to sit here to let you offer me proof that you have a mental problem or disease that would-that had some effect on why you don't remember what happened." Still, Parker failed to produce any proof. And the trial judge again reassured him, "I'll let you go and say whatever you wanted to say, and then I'm going to go through this and do what I want to do, and you be thinking, if there's any other proof you want me to consider, any medical records, any witnesses, anything of that nature , I'll sit here ... till [five o'clock]. If we need to reconvene in the morning, we'll do that." (Emphasis added.) Despite the opportunity, guidance, and reassurance by the trial court, Parker made no attempt to call any witness. Nor did he attempt to submit any records.

¶15. After Parker failed to present any proof, the trial judge expressly concluded:

[T]here's nothing in anything, that information or the demeanor I've seen, the motions that have been filed, the court file itself, my interactions with Mr. Parker to lead me to believe that there's any rational basis for appointing a psychiatrist or psychologist to examine him for the purpose of determining either his competency or sanity ."

(Emphasis added.) Our review of the record demonstrates the trial judge thoroughly considered Parker's request for a mental evaluation to assist a potential insanity defense.

II. Unsubstantiated Assertions

¶16. As to the merits of this request, we agree with the Court of Appeals plurality that the trial court did not abuse its discretion when it denied Parker's motion for a mental evaluation.

¶17. "This Court weighs on a case by case basis whether the denial of expert assistance for an accused is prejudicial to the assurance of a fair trial ...." Johnson v. State , 529 So.2d 577, 590 (Miss. 1988). We "will grant relief only where the accused demonstrates that the trial court's abuse of discretion is so egregious as to deny him due process and where his trial was thereby rendered fundamentally unfair." Id.

¶18. "[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist" who will examine and assist him. Ake v. Oklahoma , 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed. 2d 53 (1985). "Of course a defendant must come forth with concrete reasons, not unsubstantiated assertions that assistance would be beneficial." Harrison v. State , 635 So.2d 894, 901 (Miss. 1994) (citing Butler v. State , 608 So.2d 314, 321 (Miss. 1992) ; Hansen v. State , 592 So.2d 114, 125 (Miss. 1991) ; Griffin v. State , 557 So.2d 542 (Miss. 1990) ).

¶19. Parker relied exclusively on (1) his assertion he did not know the victim and could not remember anything about the night of the assault and (2) his own personal recollection about his mental-health history. This history included his taking prescription drugs for anxiety and depression and a suicide attempt three years earlier. But, as the Court of Appeals plurality aptly put it, Parker's history of treatment for anxiety and depression "has no apparent relevance to his ability to know right from wrong at the time of the offense." Parker , --- So.3d at ----, 2018 WL 1602585, at *6. Cf. Sanders v. State , 63 So.3d 497, 506 (Miss. 2011) ("Just because a person is schizophrenic does not mean that person is M'Naghten insane." (citing Laney v. State , 486 So.2d 1242, 1245 (Miss. 1986) )). Nor does Parker's testimony that he does not remember shooting Eric establish M'Naghten insanity. Not being able to remember is not the same thing as not being able to distinguish right from wrong. See, e.g. , United States v. Holsey , 995 F.2d 960, 963 (10th Cir. 1993) (holding that the defendant's testimony that he "had 'blacked out' and did not remember robbing the bank" did not amount to evidence that the defendant suffered from a mental defect rendering the defendant "unable to appreciate the nature and quality or the wrongfulness of his acts"); Williams v. State , 237 Ga. 399, 228 S.E.2d 806, 807 (1976) ("This testimony by appellant, that he does not remember what happened, does not require a charge on insanity."); Jackson v. State , 149 Ga.App. 253, 253 S.E.2d 874, 877 (1979) ("Evidence that the defendant does not remember or was in a 'blanked out' state of mind during the commission of the acts charged is insufficient to raise the issue of insanity." (citations omitted)); Sparkman v. State , 469 S.W.2d 692, 696-97 (Tenn. Crim. App. 1970) ("Insanity and amnesia are distinct conditions, even though amnesia sometimes is an incident of insanity. Insanity is incapacity to discriminate between right and wrong, while amnesia is simply the inability to remember."); Jeffley v. State , 938 S.W.2d 514, 515 (Tex. Ct. App. 1997) ("Loss of memory, however, is insufficient to show insanity."); Ex parte Saylee , No. 03-18-00124-CR, 2019 WL 1413043, at *6 (Tex. Ct. App. Mar. 29, 2019) ("Not remembering conduct is distinct from not knowing that conduct is wrong and does not entitle an accused to the insanity defense."). This is especially so when the memory loss may be attributable to voluntary intoxication or drug use. See Smith v. State , 445 So.2d 227, 231 (Miss. 1984) ("[I]f a person, when sober, is capable of distinguishing right and wrong and voluntarily intoxicates or drugs himself to the extent that he does not know or understand his actions, e.g., steals, robs, or murders, he is responsible and he may be convicted and sentenced for the crime." (citing McDaniel v. State , 356 So.2d 1151, 1161 (Miss. 1978) (Sugg, J., specially concurring))); Patterson v. State , 127 So.3d 1124, 1131 (Miss. Ct. App. 2013) (holding that not being able to remember committing the crime due to voluntary intoxication is not a viable insanity defense).

¶20. At best, Parker's testimony suggested "diminished capacity"-a defense that is not recognized under Mississippi law. Cannaday v. State , 455 So.2d 713, 720 (Miss. 1984) ; Patterson , 127 So.3d at 1131. When it come to insanity , however, we agree with the Court of Appeals plurality that Parker failed to present "any concrete reason" establishing a mental evaluation was necessary or that Parker had a viable insanity defense. Parker , --- So.3d at ----, 2018 WL 1602585, at *6. Thus, "given the broad discretion afforded to trial courts in determining whether to order a mental evaluation[,]" we find no reversible error. Harden v. State , 59 So.3d 594, 603 (Miss. 2011).

III. Hearsay

¶21. As to Parker's other statements-which the dissent suggests should have been considered competent evidence in support of Parker's motion-the trial judge did not abuse his discretion in excluding them as hearsay. Again, Parker did not call any witnesses. Instead, he merely offered an unsworn pleading as support, which contained what he alleged were statements from others. The judge explained that Parker could not offer out-of-court statements from others about how he was acting that night to prove in fact how he acted. As the trial court correctly described it, what Parker was attempting to offer was textbook hearsay. Parker wanted to offer statements by the arresting officers and victims, made out of court, to prove the truth of what they had asserted-namely, that Parker appeared to be "belligerent," that Parker "appeared to be under the influence of some type of drug or alcohol," and that Parker had been "talking in a strange language" and "mumbling." See Miss. R. Evid. 801(c) (" 'Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.").

¶22. The fact Parker himself supposedly could not recollect his behavior or state of mind when he shot Eric does not change the fundamental evidentiary rule that he could not testify about what others witnessed. Of course, Parker could have called the arresting officers and victims to testify about what Parker had said that night to prove Parker's state of mind. If he had done so, their testimony would not be hearsay, because it would have been offered not to prove what Parker said was true but instead to prove Parker's incoherence. But, though he was given the opportunity to do so, that is not what Parker did. Instead, Parker tried to shoehorn in unsworn out-of-court statements from others aimed at proving what was asserted about Parker's behavior was in fact true. Again, with respect for the dissent, this is hearsay.

¶23. The hearsay-exception cases the dissent cites are clearly distinguishable. For example, in Peterson v. State , 671 So.2d 647, 657 (Miss. 1996), a sexual-battery case, the defendant tried to introduce a statement his victim made to him the night of the assault that earlier that evening someone had called her a "slut and a whore." The defendant offered this evidence "as relevant to [his] state of mind on the night of the offense." Id. at 651. More specifically, he offered the evidence to show what he "could expect regarding sexual relations." Id. at 657. This Court affirmed the irrelevance and inadmissibility of this statement in a sexual-battery case. But we noted the out-of-court statement was not hearsay because it was "offered to prove the defendant's state of mind, rather than the truth of its assertions." Id. at 657 (emphasis added). In other words, the statement was offered to show the defendant's claimed belief that the victim was promiscuous, not that she was in fact and truth a "slut and a whore." Id.

¶24. Here, by sharp contrast, Parker offered the out-of-court statements in an effort to prove he truly was acting "belligerent," he in truth "appeared to be under the influence of some type of drug or alcohol," and he was in fact "talking in a strange language" and "mumbling" the night he shot Eric. So the statements were inadmissible hearsay. See Miss. R. Evid. 801(c), 802. Thus, we find the trial court did not abuse its discretion in refusing to consider this incompetent evidence when making the discretionary decision to deny Parker's unsupported motion for a mental evaluation.

Conclusion

¶25. On the limited issue of the trial judge's denial of Parker's motion for a mental evaluation, we find no reversible error. We therefore affirm the judgments of the Forrest County Circuit Court and the Court of Appeals.

¶26. AFFIRMED.

RANDOLPH, C.J., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J. GRIFFIS, J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶27. The majority erroneously affirms the trial court's denial of Parker's motion for a mental evaluation, finding the evidence insufficient. Because Parker made a satisfactory showing concerning the question of his sanity, the trial court abused its discretion. I respectfully dissent from the majority's holding and would find that Parker's pro se motion for a mental evaluation should have been granted.

¶28. On January 28, 2016, Eric and Edna Burkett were outdoors when Parker, driving a white pickup truck, stopped in front of their home. The Burketts, who did not know Parker, asked whether they could help him. The Burketts testified that Parker was acting "a little strange." He had started "talking in a strange language" and "mumbling incoherently." Parker took a .22 caliber rifle from his truck and fired three shots at the Burketts, one of which struck Eric Burkett in the stomach. A neighbor of the Burketts called the police.

¶29. Approximately fifteen minutes later, law enforcement officers found Parker's truck in a ditch less than half a mile from the Burketts' home. He was sitting in the vehicle and its tires were spinning. Parker did not try to flee when officers ordered him to exit the truck. A police officer testified that, when Parker stepped out of his vehicle, he "stood there and stared at [the officer]." The police officer went on to testify that Parker "was kind of wobbly" and had difficultly standing straight, ultimately falling to the ground. Parker then was arrested.

¶30. At the police station that night, a detective chose not to try to obtain a statement from Parker. According to the detective, one of the reasons she did not interview Parker was because of her belief that his statement could not have been voluntarily or knowingly made at that time. She speculated that Parker might have been under the influence of some substance. No evidence was obtained from the vehicle or the scene that supported this suspicion. Parker's blood was not tested for alcohol or drugs. On the following day the detective obtained a handwritten statement from Parker that said, simply, "I don't no [sic] victim. Don't even no [sic] victim. All I remember is sitting spinning." After meeting with Parker, the detective recommended that mental health personnel evaluate him.

¶31. A brief evaluation did occur the day after the incident. The report stated that Parker had been treated for depression and anxiety for years and that his current medications were Wellbutrin, Viibryd, and Xanax. The report did not address Parker's mental state on the night of the incident, and nothing suggests that the evaluation was performed to assess his mental competency to stand trial. The report was prepared by a person whose name is followed by "LPC," which I believe stands for Licensed Professional Counselor, and "NCC," which I believe stands for National Certified Counselor. She recommended that Parker be seen by a "medical provider at the jail for placement on medications treating his [symptoms] of anxiety and depression."

¶32. During a pretrial hearing in circuit court, Parker told the trial judge that he had no recollection of the shooting and did not know whether he had committed the crime. Parker told the judge that he wanted a mental evaluation to support an insanity defense. The court gave Parker an opportunity to prepare his motion, which he drafted by 5:00 p.m. the following evening. A few days later, Parker argued his own motion to the court.

¶33. Parker began his argument by reading his three-page motion. The motion asserted that, at the time of the offense, Parker "was in no right state of mind" and was not "able to know right from wrong." Parker's motion noted that arresting officers had described him as "belligerent" and had thought that he "appeared to be under the influence of some type of drug or alcohol." The motion noted also that the Burketts had told police that he was "talking in a strange language" and "mumbling incoherently." Parker's motion stated further that he had been treated for depression and anxiety and had been prescribed Wellbutrin, Viibryd, and Xanax. Finally, Parker requested a mental examination and an expert to testify in support of his insanity defense.

¶34. After reading his motion aloud, Parker testified to a history of mental-illness-related hospitalizations, the names or locations of medical facilities at which he had received treatment, a prior suicide attempt, and a number of medications he had taken over the years for anxiety, depression, and psychosis. Parker also testified that, at the time he assaulted the Burketts, he was under a doctor's care and on medication for anxiety and depression. In addition, Parker testified that he received Social Security disability benefits for physical and mental issues. Parker testified he had no idea whether he had been under the influence of alcohol or drugs.

¶35. Throughout the hearing, the circuit judge focused on Parker's mental competency to stand trial rather than on his alleged insanity at the time of the offense. Parker made it clear that he was not questioning his competency to stand trial. Ultimately the circuit court denied Parker's motion: "I find that Mr. Parker is competent to stand trial at this time, and the trial will go forward on Thursday[.]" Parker was tried, convicted, and sentenced. A plurality of the Court of Appeals affirmed; the Court of Appeals was evenly divided-almost; one judge voted, without opinion, to affirm in part and dissent in part. Parker v. State , No. 2016-KA-01502-COA, --- So.3d ----, ----, ----, 2018 WL 1602585, at *1, *7 (Miss. Ct. App. Apr. 3, 2018).

¶36. A trial court's ruling on a motion for a mental evaluation is reviewed under an abuse of discretion standard. Wheeler v. State , 536 So.2d 1347, 1354 (Miss. 1988). In doing so, we examine "all of the evidence" that was before the trial court. Richardson v. State , 74 So.3d 317, 323 (Miss. 2011). We also determine whether the trial court "applied the correct legal standard." Greater Canton Ford Mercury, Inc. v. Lane , 997 So.2d 198, 202 (Miss. 2008) (quoting Burkett v. Burkett , 537 So.2d 443, 446 (Miss. 1989) ).

¶37. Parker's motion for a mental evaluation raised specifically the issue of his sanity at the time of the offense. In determining sanity in criminal cases Mississippi utilizes the common law M'Naghten test.

"Under the M'Naghten test, the accused must be " 'laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing or (2) if he did know it, that he did not know that what he was doing was wrong.' " Hearn v. State , 3 So.3d 722, 738 (Miss. 2008) (quoting Woodham v. State , 800 So.2d 1148, 1158 (Miss. 2001) (quoting Roundtree v. State , 568 So.2d 1173, 1181 (Miss.1990) )).

¶38. We apply the M'Naghten test in light of the minimum constitutional protections afforded by the due process of law provisions of the Fourteenth Amendment to the United States Constitution; our analysis necessarily is bound by the United States Supreme Court's interpretation of that amendment. See Penick v. State , 440 So.2d 547, 551 (Miss. 1983) ("[W]e [are] bound to follow the holding of the U.S. Supreme Court's interpretations of the Fourt[eenth] Amendment to the U.S. Constitution."); see also , Miss. Const. art. 6, § 155. Respecting the question of an indigent defendant's claim of insanity at the time of the offense, the United States Supreme Court has held

This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake....
....
We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

Ake v. Oklahoma , 470 U.S. 68, 76, 83, 105 S.Ct. 1087, 1092-96, 84 L.Ed. 2d 53 (1985).

¶39. Before the Court is the question of whether Parker sufficiently demonstrated to the trial judge that his sanity at the time of the offense was "seriously in question." Id. at 82, 105 S.Ct. 1087. In analyzing this issue, we review the evidence that was before the circuit court.

A. Evidence Considered by the Circuit Court

¶40. As noted above, Parker submitted a pro se motion for mental evaluation and testified in support of his motion. Parker testified about his history of mental-illness-related hospitalizations, the names or locations of medical facilities at which he had received mental health treatment, a prior suicide attempt, and a number of medications he had taken over the years for anxiety, depression, and psychosis. Some of the prescribed drugs Parker testified he had taken were Wellbutrin, Viibryd, and Xanax. Parker testified also that, at the time he assaulted the Burketts, he was under a doctor's care and was on medicine for anxiety and depression. In addition, Parker testified that he received Social Security disability benefits for physical and mental issues. Finally, Parker testified that he had no recollection of what had happened during the shooting and that he did not remember having been there.

B. Evidence Not Considered by the Circuit Court

¶41. The circuit court made no mention of having considered any of the following additional evidence before denying Parker's motion. Parker testified that the arresting officers had described him as "belligerent" and had thought that he "appeared to be under the influence of some type of drug or alcohol." Accordingly, law enforcement personnel did not attempt to obtain a statement from Parker on the night he was taken into custody. Parker also testified that Eric Burkett had said that Parker was "talking in a strange language and mumbled." Parker further testified that Edna Burkett had said Parker was "mumbling" and had "continued to mumble someone's name."

¶42. The circuit court did not consider that evidence because it determined, sua sponte , that all of the statements were inadmissible hearsay: "[W]hat you've done, Mr. Parker, is [that] you [have] cited a bunch of people and what they allegedly said, but they're not in the courtroom, and that's hearsay.... and I don't see that there's an exception to the rule against hearsay." With respect, the trial judge was mistaken in his evidentiary analysis.

¶43. "Hearsay" is defined as "a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." M.R.E. 801(c). Parker did not offer into evidence the above statements to prove the truth of the matters asserted. He was not trying to prove that he was "under the influence of some type of drug or alcohol" or that he actually was "talking in a strange language" and "mumbling." He offered the statements to prove, as best he could, his state of mind at the time of the offense. M.R.E. 803(3) (Then-Existing Mental, Emotional, or Physical Condition).

¶44. Under the applicable exception, Mississippi Rules of Evidence 803(3), statements "offered to prove the defendant's state of mind, rather than the truth of [the matters] assert[ed] .... [are] not hearsay under the Mississippi Rules of Evidence." Peterson v. State , 671 So.2d 647, 657 (Miss. 1996), superseded by rule on other grounds as recognized in Caston v. State , 949 So.2d 852, 855-56 (Miss. Ct. App. 2007). See generally Eselin-Bullock & Assocs. Ins. Agency, Inc. v. Nat'l Gen. Ins. Co. , 604 So.2d 236, 242 (Miss. 1992). See also United States v. Detrich , 865 F.2d 17, 21 (2d Cir. 1988) (when "the statement is offered as circumstantial evidence of [the defendant's] state of mind, it does not fall within the definition" of hearsay); Lambert v. State , 888 P.2d 494, 501 (Okla. Crim. App. 1994) ("The record also contains testimony from Dr. Goodman that his conversations with Hain were relied upon in determining [the defendant's] competency, and evaluating his mental state. There is no assertion that the information related by Goodman was offered to prove the truth of the matter asserted. Rather, the statement was used to evaluate [the defendant's] state of mind ...."); State v. Crafts , 226 Conn. 237, 627 A.2d 877, 886 (1993) ("A statement that is offered to establish circumstantially the state of mind of the declarant is not offered for the truth of the statement.").

¶45. The majority finds that Parker offered the out-of-court statements for the purpose of proving that he was, in fact, belligerent, incomprehensible, and generally unable to control himself, inter alia . The majority asserts this properly was deemed inadmissible hearsay without exception, and distinguishes the above-cited cases illustrating the state-of-mind exception.

¶46. However, the record makes clear that Parker did not offer the statements to prove truth of the matter asserted, nor did he offer them to prove his sanity, or lack thereof. The out-of-court statements were offered to show Parker's state of mind during and soon after his bizarre, motiveless assault on the Burketts. He had no recollection of the events, but other witnesses did. This was apparent from Parker's testimony at the pretrial hearing:

[Court]: ... I want you to tell me what it is about this case and your involvement in it that could convince me that you have a mental condition, that leads you to be incompetent to stand trial or to assist your attorneys in the defense of your case?
....
[Defendant]: ... I have no recollection of any idea of what I was doing in Palmer's Crossing that night. I don't even remember being there. I don't have any recollection of what happened. My mental capability at that time of said crime, I have no idea. I was not even at myself. I mean there's people that put -- that state this, and me, myself, I have no recollection . That's a 24-hour period of time that when I was brought to Forrest County Jail and then woke up the next morning in the holding cell.

(Emphasis added.)

¶47. These contemporaneous statements of Parker's are about his then-existing mental, emotional, or physical condition at the time of the shooting. Parker testified he had no awareness or memory of his actions. It does not follow that the statements were offered to prove the fact of his behavior -as the majority finds. The out-of-court statements provided by several witnesses relate to Parker's mental condition or state of mind at the time of and soon after the tragic shooting. Nor does the fact that Parker testified about what others witnessed preclude the statements' admissibility. These statements are the kind contemplated by Rule 803(3), a well-known exception to the rule against hearsay.

¶48. From all indications, Parker was lucid and rational at the time he stood before the trial court and begged for a mental health evaluation by a court-appointed expert. Parker did not claim that he was mentally incompetent to stand trial or to assist counsel with his defense. Thus, the trial judge was addressing a question that was not being asked, while leaving unanswered the all-important question of whether Parker had made a sufficient showing of his state of mind at the time of his assault upon the Burketts to warrant a mental health examination by a qualified, court-appointed mental health professional. The judge's failure to consider Parker's rendition of relevant witness statements made in close proximity in time to the assault was error which was, in significant part, due to the judge's erroneous belief that the statements were inadmissible hearsay.

C. Application of the Rule to the Evidence Presented

¶49. Parker demonstrated to the trial judge that his sanity at the time of the offense was "seriously in question." Ake , 470 U.S. at 82, 105 S.Ct. 1087. To that end, Parker adduced the following evidence:

• Parker had no recollection of what had happened on the night of the crime. This was neither questioned nor rebutted by the State.
• Parker did not remember being at the scene of the crime. This was not contradicted.
• Parker had said, without contradiction, that he did not know the victim, Eric Burkett.
• There was no indication that Parker had any motive to shoot Eric Burkett.
• The investigating officer believed that Parker, on the night of the crime, was not in a state of mind in which he knowingly and voluntarily could give a statement.
• The arresting officers described Parker as "belligerent."
• The arresting officers thought Parker "appeared to be under the influence of some type of drug or alcohol."
• The Burketts observed Parker "talking in a strange language" and "mumbling."
• Parker had a history of mental illness.
• In the past, Parker had been taking a number of medications for anxiety, depression, psychosis, and mental illness, including Wellbutrin, Viibryd, and Xanax.
• Parker told the LPC/NCC examiner that he was taking prescribed medications for anxiety and depression.
• Parker had attempted suicide on a prior occasion.
• Parker had been receiving Social Security disability benefits for physical and mental illness.

¶50. Based on the above evidence, I would find that Parker more than adequately "demonstrate[d] to the trial judge that his sanity at the time of the offense [was seriously in question.]" Id. at 82-83, 105 S.Ct. 1087, 1096. See also Liles v. Saffle , 945 F.2d 333, 341 (10th Cir. 1991) (similar evidence required habeas relief for trial court's failure to order mental evaluation under Ake ); De Freece v. State , 848 S.W.2d 150, 151 (Tex. Crim. App. 1993) (evidence that defendant "heard voices he 'couldn't overcome' " and previous diagnosis of mental illness sufficient to require reversal of trial court's denial for mental evaluation under Ake ); Lindsey v. State , 254 Ga. 444, 330 S.E.2d 563 (1985) (evidence that defendant had a history of mental problems and that defendant had been diagnosed as a paranoid schizophrenic and had been prescribed antipsychotic medications sufficient to require reversal of trial court's denial of mental evaluation under Ake ).

¶51. As explained in Ake , a defendant need make only a "preliminary showing that his sanity at the time of the offense" is at issue in order to trigger the constitutional protection of "access to a psychiatrist's assistance." Ake , 470 U.S. at 74, 105 S.Ct. 1087 (emphasis added). It is beyond any reasonable argument that Parker's proffered evidence amounted to a sufficient preliminary showing . And once such a preliminary showing has been made, an indigent defendant must be given the "raw materials integral to the building of an effective defense." Ake , 470 U.S. at 77, 105 S.Ct. 1087. This analysis comports with the M'Naghten test, Hearn , 3 So.3d at 738, and other principles of constitutional fairness. Lowe v. State , 127 So.3d 178, 181 (Miss. 2013) ("We will not hesitate to reverse a trial court's denial of expert assistance to an indigent defendant when the lack of expert assistance denied the defendant due process such that the trial was rendered fundamentally unfair." (citing Fisher v. City of Eupora , 587 So.2d 878, 883 (Miss. 1991) )). See also Bishop v. State , 96 Miss. 846, 52 So. 21, 22-23 (1910).

¶52. To be clear, this preliminary showing is far from dispositive of the question of whether Parker has presented a viable insanity defense, or that he will ever do so. That "ultimate issue is to be determined by the jury." Billiot v. State , 454 So.2d 445, 463 (Miss. 1984). As the majority observes, Parker's ability or inability to recall his actions does not affect whether he could distinguish right from wrong at the time of the alleged crime. But Parker has made a sufficient preliminary showing on the question of his sanity at the time of the offense to warrant a mental health evaluation under Ake . Indeed, part of the reason for conducting a mental evaluation is to help the defendant determine whether an insanity defense is viable. Liles , 945 F.2d at 340 ("One of the functions of [ ] a court-appointed psychiatric expert, therefore, is to assist the defense in determining whether an insanity defense is viable or warranted under the circumstances of a particular case." (citing Ake , 470 U.S. at 82, 105 S.Ct. 1087 )).

¶53. Parker questioned his own sanity and thus provided the trial court ample reason to require a mental health examination by a court-appointed professional in accordance with Ake . For these reasons, I dissent and would reverse Parker's conviction and sentence and would remand the case to the Forrest County Circuit Court for a new trial.

KING, P.J., JOINS THIS OPINION.

      Parker voluntarily waived his Miranda rights. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) (requiring that, prior to a custodial interrogation, the person being interviewed be warned that he has a right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed).

      Cf. House v. State , 754 So.2d 1147, 1151 (Miss. 1999) ("[T]rial courts are [constitutionally] obligated to conduct a competency hearing, either on the defendant's motion or sua sponte, if there is sufficient doubt about a defendant's competence." (citing Drope v. Missouri , 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed. 2d 103 (1975) ; Pate v. Robinson , 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed. 2d 815 (1966) )).

      Parker had filed numerous pro se motions, including a "Motion to Be and Allow Shannon Craig Parker to Be Co-counsel Beside One Candance Rickmon Public Defender," "Motion of Release And/or Fire Public Defender Filed by Defendant," and "Motion for Preliminary Injunction/Transfer." And at the prior hearing, Parker had openly disagreed with his appointed counsel's assessment of Parker's potential insanity defense.

      Under the authority granted in then-applicable Rule 8.02, the trial court had set a due date of August 30, 2016, to file a motion for mental examination. See URCCC 8.02. Under then-applicable Rule 9.07, this was also the deadline to inform the State and the court that Parker intended to rely on an insanity defense. See URCCC 9.07. Parker did not inform the court he had wanted to file his motion for mental evaluation based on a potential insanity defense until two weeks later, on September 15, 2016, exactly one week before the scheduled trial.

      Albeit months after the crime, Parker testified under oath that, if he in fact did what the State accused him of doing, then the judge should punish him to the full extent of the law-indicating that, when not under the influence of any substance, he knew right from wrong.

      We note the Burketts and arresting officers did testify at trial. But their later in-court testimony does not change the fact that the statements cited in the pretrial motion were hearsay.

      As the dissent acknowledges, Peterson has been superseded by rule on other grounds as recognized in Caston v. State , 949 So.2d 852, 855-56 (Miss. Ct. App. 2007).

      The same is true for Eselin-Bullock & Associates Insurance Agency v. National General Insurance Co. , 604 So.2d 236, 242 (Miss. 1992), in which this Court explicitly held that there was "no issue about the truth of the matter asserted." Eselin-Bullock was a tortious-interference-with-business-relations case between an insurance agency, Eselin-Bullock, and the insurer it represented. Following Hurricane Elena in 1985, the insurer decided it was cost-prohibitive to reinsure along the Mississippi Gulf Coast. The insurer sent letters directly to clients notifying them that their "policies were being cancelled because [the agency] no longer represented [the insured]." Id. at 239. At trial, one of the agents tried to testify about the phone calls he received from upset clients. He explained the clients blamed the agency about the cancellations of their policies and thought, based on the wording on the letters, that the agency was going out of business. The trial court sustained the insurer's objection on hearsay grounds. This Court reversed, holding the out-of-court statements by clients were not hearsay because "[t]hese statements were not offered to prove that the clients were truly upset, that the clients in truth blamed Eselin-Bullock for their cancellations, or that the clients in truth believed that Eselin-Bullock was going out of business." Id. at 242. Instead, "[t]hese statements were offered simply to prove that such statements were made by Eselin-Bullock clients in response to cancellation notices."
      As to the three non-Mississippi cases the dissent cites, they too are distinguishable because the out-of-court statements were not being offered to prove the truth of the matter asserted. United States v. Detrich , 865 F.2d 17 (2d Cir. 1988) was a federal drug-trafficking case in which the defendant claimed he had brought a suit back from India as a favor for a friend whose cousin was getting married. He was met at the airport by the Drug Enforcement Administration, which found heroin hidden in the shoulder pads of the suit. The Second Circuit held the defendant should have been allowed to introduce the cousin's out-of-court statement to the DEA that he was getting married. "Without regard to the truth of [the cousin's] marriage plans," the statement was circumstantial evidence of the defendant's state of mind and his claim he thought he was performing an innocent a favor. Id. at 21.
      Lambert v. State , 888 P.2d 494 (Okla. Crim. App. 1994) was a death-penalty appeal in which the defendant argued the State's expert who performed the competency evaluation should not have been allowed to testify that he (the expert) relied, in part, on conversations with an accomplice. The Oklahoma Court of Criminal Appeals rejected this argument because there was "no assertion that the information related by [the expert] was offered to prove the truth of the matter asserted." Id. at 501. Rather, the accomplice's statement "was used to evaluate the [defendant's] state of mind, and to show his ability to plan." Id.
      Finally, State v. Crafts , 226 Conn. 237, 627 A.2d 877 (1993) was a gruesome murder case in which the state's theory was that the defendant murdered his wife upon learning she planned to divorce him. The state introduced five witnesses who testified that the victim had told them that, if something happened to her, they should not believe that it was an accident. In rejecting the defendant's hearsay claim, the Supreme Court of Connecticut noted that "[a]n out-of-court statement is hearsay ... only if it is offered to prove the truth of the matter asserted in the statement." Id. at 886 (emphasis added). And in that case, "because the state offered the evidence to establish only the victim's state of mind, the statements were not hearsay." Id.

      Parker had been found by the trial court to be indigent. Although he had a court-appointed attorney, Parker drafted and filed the motion pro se because his attorneys, according to Parker, did not want to pursue an insanity defense. Both attorneys were present at the motion hearing.

      The circuit court made the following statements: "I want you to tell me ... [the reasons] you have a mental condition[ ] that leads you to be incompetent to stand trial or assist your attorneys[.]"; "[S]o are you competent[?] [D]o you feel like you're competent to assist your attorneys in preparing your defense?"; "[I]n determining whether or not the defendant is competent to stand trial and assist in his trial ... the [c]ourt has observed the defendant's demeanor and conduct[.]"; "I have failed to observe or perceive any untoward conduct on the part of the defendant."; "I find no basis to deem Mr. Parker incompetent to assist in his defense or proceed to trial[.]"; "[S]pecifically the [c]ourt finds that Mr. Parker appears to have sufficient present mental - - present sufficient - - present ability to confer with his attorneys[.]"; "Therefore, I find that Mr. Parker is competent to stand trial at this time[.]"

      Parker made the following statements: "Judge, this has nothing to do with me standing trial."; "Judge, like I stated, this has nothing to do with this time and period right now. It has to do with" the time of the crime; "But, Judge, we're not talking about what I was capable of doing then or now. We're talking about what happened on that night."

      Now-Presiding Judge Wilson authored the plurality opinion. Then-Chief Judge Lee, then-Presiding Judge Griffis, now-Chief Judge Barnes, and Judge Fair concurred. Judge Greenlee concurred in part and dissented in part without separate written opinion. Judge Tindell dissented with separate written opinion, joined by then-Presiding Judge Irving and Judges Carlton, Greenlee, and Westbrooks.

      The M'Naghten test was announced first by the English House of Lords. M'Naghten's Case (1843) 8 Eng. Rep. 718, 10 Clark & F. 200. This Court expressly adopted the M'Naghten test in 1955. Johnson v. State , 223 Miss. 56, 67, 76 So.2d 841, 844 (1955) ("We apply the test of the leading English case known as M'Naghten 's case, which is the majority rule." (citing 14 Am. Jur. Criminal Law §§ 38 -40 )). The Johnson Court adopted the test, noting that earlier Mississippi decisions had recognized and applied the substance of the rule. See, e.g. , Eatman v. State , 169 Miss. 295, 153 So. 381, 381 (1934).

      The United States Constitution, to which this Court unquestionably is bound, establishes a minimum standard for state courts. Though unnecessary here, "We are empowered by our state constitution to exceed federal minimum standards of constitutionality and more strictly enforce [constitutional rights]." Downey v. State , 144 So.3d 146, 151 (Miss. 2014).

      Of significance, perhaps, is that Parker did not testify, and he did not tell the LPC/NCC examiner that he was, at the time, taking medication for psychosis.

      Now-Chief Judge Barnes of the Court of Appeals has expounded on this problem: "All too often, we see records where a witness is informed he 'can't say what anyone else said' without any attempt to determine whether the statements are being used to prove the truth of the matter." Harrell v. State , 179 So.3d 16, 22-23 (Miss. Ct. App. 2014) (Barnes, J., dissenting).

      The State did not rebut or challenge any of Parker's evidence. The trial judge asked, "All right, does the State have anything?" The prosecutor responded, "We have no proof to offer, Judge. Just argument."


author: COLEMAN, JUSTICE, FOR THE COURT: GRIFFIS, JUSTICE, DISSENTING:

text:
    NISSAN NORTH AMERICA, INC. v. Ann C. TILLMAN and Great River Nissan, LLC d/b/a Great River Nissan
    NO. 2018-CC-00462-SCT
    Supreme Court of Mississippi.
    June 6, 2019
    ATTORNEYS FOR APPELLANT: JASON H. STRONG, JACKSON, S. KEITH HUTTO, CHRISTOPHER C. GENOVESE
    ATTORNEYS FOR APPELLEES: GLENN GATES TAYLOR, RIDGELAND, CHRISTY M. SPARKS, R. KENT HUDSON, NATCHEZ
    BEFORE KING, P.J., COLEMAN AND BEAM, JJ.
   COLEMAN, JUSTICE, FOR THE COURT:

¶1. The present appeal involves a dispute between an automobile manufacturer and a dealership. The Court must determine whether the dealer timely filed a complaint under Mississippi Code Section 63-17-73(1)(d)(iii) after the dealer received the manufacturer's notice that it would terminate the applicable dealership agreement. In determining timeliness, the Court must decide whether the statute's phrase "within the sixty-day notice period" refers to the sixty days following a dealer's receipt of its notice of termination or the sixty days within the effective date of termination.

STATEMENT OF THE CASE

¶2. The parties agree that Section 63-17-73(1)(d)(iii) requires an automobile manufacturer seeking to terminate a dealership agreement to provide a notice of termination to its dealer at least sixty days before the effective date of termination. The parties also agree that Section 63-17-73(1)(d)(iii) provides a dealer an opportunity to challenge a notice of termination by filing a verified complaint with the Mississippi Motor Vehicle Commission. The parties dispute, however, the period of time in which a dealer is required to file a complaint under Section 63-17-73(1)(d)(iii) challenging the notice of termination. Section 63-17-73(1)(d)(iii) provides that

It is unlawful and a misdemeanor:
....
(d) For a manufacturer, a distributor, a wholesaler, a distributor branch or division, a factory branch or division, or a wholesaler branch or division, or officer, agent or other representative thereof:
(iii) To terminate or cancel the franchise or selling agreement of any dealer without due cause. The nonrenewal of a franchise or selling agreement, without due cause, shall constitute an unfair termination or cancellation, regardless of the terms or provisions of such franchise or selling agreement. "Due cause" shall be defined as a breach by the dealer of a material provision of the franchise agreement which breach has not been cured within a reasonable time after the dealer has been given written notice of the breach. The burden of proving that due cause exists shall be upon the party attempting to terminate, cancel or not renew the franchise or selling agreement. The manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesaler branch or division, or officer, agent or other representative thereof shall notify a motor vehicle dealer in writing, and forward a copy of the notice to the commission, of the termination or cancellation of the franchise or selling agreement of the dealer at least sixty (60) days before the effective date thereof , stating the specific grounds for such termination or cancellation. The manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesaler branch or division, or officer, agent or other representative thereof shall notify a motor vehicle dealer in writing, and forward a copy of the notice to the commission, at least sixty (60) days before the contractual term of his franchise or selling agreement expires that the franchise or selling agreement will not be renewed , stating the specific grounds for the nonrenewal, in those cases where there is no intention to renew the franchise or selling agreement. In no event shall the contractual term of any franchise or selling agreement expire, without the written consent of the motor vehicle dealer involved, prior to the expiration of at least sixty (60) days following such written notice . Any motor vehicle dealer who receives written notice that his franchise or selling agreement is being terminated or cancelled or who receives written notice that his franchise or selling agreement will not be renewed, may, within the sixty-day notice period , file with the commission a verified complaint for its determination as to whether the termination or cancellation or nonrenewal is unfair within the purview of the Mississippi Motor Vehicle Commission Law, and the franchise agreement shall continue in effect until final determination of the issues raised in the complaint notwithstanding anything to the contrary contained in the law or in the franchise or selling agreement.

Miss. Code. Ann. § 63-17-73(1)(d)(iii) (Supp. 2018) (emphasis added).

FACTS AND PROCEDURAL HISTORY

¶3. Ann C. Tillman is the principal owner of Great River Nissan, a locally owned and operated Nissan dealership in Natchez, Mississippi. On November 23, 2016, Nissan North America, Inc., notified Great River that it would terminate its dealership agreement with Great River based on unsatisfactory sales, among other reasons. Although at least sixty days' notice is required before the effective date of termination under Section 63-17-73(1)(d)(iii), Nissan and Great River's dealership agreement required at least ninety days' notice. Accordingly, Nissan advised Great River that the dealership agreement would be terminated effective ninety days from the date of Great River's receipt of the notice; therefore, the effective date of termination was set for February 21, 2017.

¶4. On February 17, 2017, Great River challenged the notice of termination by filing a verified complaint with the Commission under Section 63-17-73(1)(d)(iii). Nissan filed a motion to dismiss the complaint as untimely, claiming that the deadline to file the complaint with the Commission was within sixty days after Great River had received the notice of termination, not within sixty days of the effective date of the termination. Great River responded, arguing that its complaint was timely because it had been filed within sixty days before the effective date of termination.

¶5. The Commission held a hearing on the matter. The Commission found that Great River had received a notice of termination letter on November 23, 2016, and that Great River filed its complaint on February 17, 2017. The Commission found that Great River had "filed its [v]erified [c]omplaint outside the statutory window of sixty (60) days to file a verified complaint with the Commission" and dismissed Great River's complaint.

¶6. Great River appealed to the chancery court under Mississippi Code Section 63-17-99 (Rev. 2013). The chancery court, sitting as an appellate court, held oral argument and accepted briefs from the parties. The chancery court reversed the Commission's decision, finding that the Commission had incorrectly interpreted the statute. The chancery court wrote that it had been "presented with a narrow question of law: does the statutory language 'within the sixty-day notice period' refer to the earlier language in the statute that states that the minimum statutory notice period for termination is 'sixty (60) days before the effective date' of the termination, or does it mean sixty days after a dealer receives a notice of termination[?]"

¶7. The chancery court found that "the language 'within the sixty-day notice period' means, refers and was intended by the Legislature to refer to the sixty-day period before the effective date of the threatened termination." The chancery court found that the statute was unambiguous and that "the best reading of the statute is that a dealer may file a complaint within the sixty-day period before the effective date of the threatened termination of the dealership agreement."

¶8. The chancery court explained,

Sixty days before the effective date of termination is the only clearly stated and time-certain period that the Legislature used in the termination provisions of the statute. The best reading of the language in context is that the filing deadline the Legislature had in mind and intended was the sixty-day period prior to the effective date of the threatened termination.

Therefore, the chancery court found that "Great River timely filed its verified complaint with the Commission within the sixty days before the date of termination." In the alternative, the chancery court found that even were the statute ambiguous, it should be construed in favor of Great River to fulfill legislative intent. The chancery court remanded the case to the Commission for a determination on the merits of whether Nissan had due cause to terminate the dealership agreement with Great River.

¶9. Nissan appeals, framing the sole issue before the Court as follows:

Mississippi law requires a motor vehicle manufacturer to provide a notice of termination to its dealer "at least sixty (60) days before" the effective date of termination, and permits the dealer to challenge the termination by filing a Complaint "within the sixty-day notice period." The Mississippi Motor Vehicle Commission found that [Great River's] Complaint, filed eighty-six days after receiving a notice of termination, was untimely[ ] and dismissed it. Did the Chancery Court err by determining that [Great River's] Complaint was timely and reversing the Commission's decision?

¶10. Great River frames the issue as follows:

The issue before the Court is whether the phrase "within the sixty-day notice period" refers to the earlier language in the statute that states that the minimum statutory notice period for termination is "sixty (60) days before the effective date" of the termination, or does it mean sixty (60) days after a dealer's receipt of a notice of termination[?]

STANDARD OF REVIEW

¶11. An administrative agency's interpretation of a statute governing the agency's operation is a matter of law subject to de novo review. King v. Miss. Military Dep't , 245 So. 3d 404, 407-08 (¶¶ 8-13) (Miss. 2018).

ANALYSIS

Whether Great River's complaint was timely under Mississippi Code Section 63-17-73(1)(d)(iii).

¶12. Section 63-17-73 was enacted, in part, to regulate certain conduct in the motor vehicle distribution industry, including the termination of a dealership agreement between a manufacturer and dealer. Section 63-17-73 imposes a notice obligation on a manufacturer seeking to terminate a dealership agreement, and it creates an administrative avenue for a dealer to seek recourse from the Commission upon receipt of a notice of termination.

¶13. Nissan advances two chief arguments in support of its assignment of error. First, Nissan argues that the Commission correctly interpreted and applied the unambiguous language of the statute. Second, and in the alternative, Nissan argues that even if the statute is ambiguous, the Commission's interpretation is the best reading of the law.

¶14. "When a statute is unambiguous and conveys a clear and definite meaning, th[e] Court follows its plain terms." Lutz Homes, Inc. v. Weston , 19 So. 3d 60, 62 (¶ 9) (Miss. 2009) (citing Nat'l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass'n , 990 So. 2d 174, 180 (¶ 21) (Miss. 2008) ). "Th[e] Court resorts to the canons of statutory interpretation only where a statute is ambiguous or silent on a specific issue." Id. (citing Nat'l Union Fire Ins. Co. , 990 So. 2d at 180 (¶ 21) ). Stated differently, "[w]hen the language used by the legislature is plain and unambiguous ... and where the statute conveys a clear and definite meaning ... the Court will have no occasion to resort to the rules of statutory interpretation."

Miss. State & Sch. Emps.' Life & Health Plan v. KCC, Inc. , 108 So. 3d 932, 936 (¶ 10) (Miss. 2013) (alterations omitted) (quoting Miss. Ethics Comm'n v. Grisham , 957 So. 2d 997, 1001 (¶ 12) (Miss. 2007) ).

¶15. "Courts have a duty to give statutes a practical application consistent with their wording, unless such application is inconsistent with the obvious intent of the legislature." Id. (quoting Grisham , 957 So. 2d at 1001 (¶ 12) ). "Whether the statute is ambiguous, or not, the ultimate goal of this Court in interpreting a statute is to discern and give effect to the legislative intent." Wayne Cty. Sch. Dist. v. Morgan , 224 So. 3d 539, 542 (¶ 8) (Miss. 2017) (quoting Miss. Dep't of Transp. v. Allred , 928 So. 2d 152, 154 (¶ 12) (Miss. 2006) ).

¶16. While Nissan and Great River contend that the statute is plain and unambiguous, each contends that the opposing party's interpretation is contrary to the plain and unambiguous meaning of the statute. Nissan urges the Court to focus on the word notice in the phrase "the sixty-day notice period." (Emphasis added.) By focusing on the word notice, Nissan suggests that the sixty day time period in the statute consists of the sixty days immediately following notice. We disagree.

¶17. The statute plainly provides that the dealer may file a verified complaint "within the sixty-day notice period." Miss. Code Ann. § 63-17-73(1)(d)(iii). The only defined sixty day notice period involving the termination of a dealership agreement is the minimum sixty days preceding the proposed termination date. The sixty day notice period is plainly tethered to the effective date of termination, not the date the dealer receives notice. Thus, "the sixty-day notice period" must mean the sixty days preceding the effective termination date. (Emphasis added.) We agree with Great River and the chancery court that the sixty day notice period refers to the sixty days prior to the effective termination date, not the sixty days immediately following the receipt of the notice of termination.

¶18. In the same statute at issue, the Legislature used the following language:

Upon receipt of written notification, a motor vehicle dealer shall have sixty (60) days to file a protest with the commission , and the manufacturer shall demonstrate to the commission the need for the demand in view of the need to service the public and the economic conditions existing in the motor vehicle industry and the market area served by the motor vehicle dealer at the time the action would be required of the motor vehicle dealer.

Miss. Code. Ann. § 63-17-73(1)(d)(ix) (Supp. 2018) (emphasis added). Certainly, the Legislature was capable of tying "the sixty-day notice period" to the receipt of written notice as evidenced by the language used in a different subsection of the same statute. Instead, the Legislature chose to tie "the sixty-day notice period" to the effective date of termination.

¶19. We conclude that the statute is unambiguous, and its plain meaning provides that a dealer may file its verified complaint within the sixty day notice period, i.e ., the sixty days preceding the effective date of termination. Because the statute is unambiguous and conveys a clear and definite meaning, resorting to the rules of statutory construction is not necessary. Accordingly, Great River's complaint was timely filed within the sixty days immediately preceding the effective date of termination. We thus affirm the chancery court's judgment remanding the case for further proceedings with the Commission.

¶20. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MAXWELL, J.

GRIFFIS, JUSTICE, DISSENTING:

¶21. This case turns on the interpretation of the phrase "within the sixty-day notice period." The majority reads this language as "tethered to the effective date of termination, not the date the dealer receives notice." (Maj. Op. ¶ 17). I disagree.

¶22. Two provisions of Mississippi Code Section 63-17-73(1)(d)(iii) govern this case. First, Section 63-17-73(1)(d)(iii) requires that a manufacturer give a dealer notice of termination "at least sixty (60) days before the effective date thereof ...." Miss. Code Ann. § 63-17-73(1)(d)(iii) (Supp. 2018). Nissan notified Great River in writing of its intent to terminate the dealer agreement at least sixty days before the effective date of the termination and sent a copy of the notice to the Commission. Nissan stated the specific grounds for such termination. Nissan complied with the notice requirement of the Section 63-17-73(1)(d)(iii).

¶23. Second, Great River's receipt of the notice to terminate gave Great River a statutory right to challenge the termination. Section 63-17-73(1)(d)(iii) reads,

Any motor vehicle dealer who receives written notice that his franchise ... is being terminated ... [Great River], may, within the sixty-day notice period , file with the commission a verified complaint for its determination as to whether the termination ... is unfair within the purview of the Mississippi Motor Vehicle Commission Law, and the franchise agreement shall continue in effect until final determination of the issues raised in the complaint notwithstanding anything to the contrary contained in the law or in the franchise or selling agreement.

Id. (emphasis added). The question here is how do we interpret (i.e., calculate) the phrase "within the sixty-day notice period."

¶24. In my opinion, we must consider the language used in construing what is meant by "sixty-day notice period." It clearly contemplates "notice." The first part of Section 63-17-73(1)(d)(iii) quoted above requires a manufacturer to give a dealer notice of termination "at least sixty (60) days before the effective date of the termination." This clearly contemplates that a dealer may give more than sixty days' notice, as Nissan did here. More importantly, the operative event is the giving of "written notice," which starts the count down before the finality of the termination.

¶25. The second part of Section 63-17-73(1)(d)(iii) quoted above established the period within which the challenge must be filed. Great River "may, within the sixty-day notice period, file with the commission a verified complaint." Great River's statutory right to challenge the termination accrued and began to run when notice was given. Just as we interpret a limitations period, it is the notice that set in motion the right to challenge.

¶26. Section 63-17-73(1)(d)(iii) created a statutory dispute-resolution procedure that Great River may initiate upon the receipt of notice of Nissan's intent to terminate. During the pendency of the dispute, the statute mandates that "the franchise agreement shall continue in effect until final determination of the issues raised in the complaint ...." Id. In my opinion, this contemplates a timely resolution of the dispute.

¶27. The majority's reasoning would defeat the timely resolution of the dispute; instead, it would encourage unfair manipulation and unreasonable delay. For example, under the majority's interpretation, a dealer who disputes the termination could, and should, wait until the day before the intended termination to file the complaint and automatically extend the dealer agreement. A commercially reasonable interpretation would require the parties to challenge the termination as soon as possible and to allow the Commission adequate time to resolve the dispute so that, if it is proper, the termination may be effective on the intended date of termination.

¶28. Consider a scenario in which Nissan had provided twelve months' notice of termination. Under the majority's interpretation, Great River would have to wait until the eleventh month to file the complaint with the Commission, or it could file the day before the effective date. Great River would then be able to extend the contract without reason. The majority's interpretation would essentially ensure that the dispute was not resolved in a timely or commercially reasonable manner. Under my interpretation, Great River would have sixty days from the date of notice, leaving the Commission a minimum of ten months to consider whether the termination was fair under the law.

¶29. I am of the opinion that the Commission properly determined that Great River's right to file a complaint accrued upon its receipt of the notice of termination and that Great River's deadline to file a complaint ran sixty days from that date. Accordingly, I would reverse the chancellor's judgment and reinstate the Commission's decision. Therefore, I respectfully dissent.

MAXWELL, J., JOINS THIS OPINION.

      The Court will refer to the Appellees collectively as Great River.

      There is no dispute that Nissan had the right to terminate the Dealer Agreement. The only question to be resolved by the Commission is "whether the termination ... is unfair within the purview of the Mississippi Motor Vehicle Commission Law." Miss. Code Ann. § 63-17-73(1)(d)(iii).


author: ISHEE, JUSTICE, FOR THE COURT:

text:
    In the Matter of the Last Will and Testament of Mary Saunders WALLER: Brenda Gordon and Craig Gordon v. Sherry WALL, Administratrix C.T.A. of the Estate of Mary Saunders
    NO. 2018-CA-00531-SCT
    Supreme Court of Mississippi.
    June 6, 2019
    ATTORNEYS FOR APPELLANTS: ROBERT QUENTIN WHITWELL, JR., DEREK HEATH-ESSEX MORETON, OXFORD
    ATTORNEYS FOR APPELLEE: MICHAEL N. WATTS, OXFORD, R. BRADLEY BEST, JACKSON, GEOFFREY FELIX CALDERARO
    BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶1. The Lafayette County Chancery Court set aside an inter vivos gift of about forty acres fronting Highway 6 near Oxford. The grantor was Mary Saunders Waller, a ninety-year-old woman who was hard of hearing and legally blind; the grantees were Waller's daughter and son-in-law, Brenda and Craig Gordon. The Gordons lived near Waller and had been her caretakers for many years. A conservator was appointed shortly before Waller's death, and she filed a petition in the probate action to set aside the deed to the Gordons. The Gordons admitted to a confidential relationship with Waller, and the chancellor found they were unable to rebut the attending presumption of undue influence. On appeal, the Gordons contend the chancery court erred by excluding the testimony of Waller's attorney and physicians because of ex parte contact by the Gordons' attorney.

¶2. With regard to the physicians, the Gordons failed to make an offer of proof. Since this Court has no way to know what the physicians would have said had they testified, we cannot find any error in the exclusion of their testimony. See M.R.E. 103. The trial court should not have excluded the attorney's testimony, because the ex parte contact rule does not apply to attorneys; but the Gordons conceded the point at trial. We cannot find an abuse of discretion in denying the Gordons' motion for a new trial based on arguments that could have, and should have, been raised at trial.

¶3. We affirm the chancery court's judgment.

FACTS

¶4. Mary Saunders Waller and her husband originally owned about 160 acres of land in Lafayette County, west of Oxford. The Wallers had four daughters, one of whom was Brenda Gordon. Over the years, Waller had sold or given away numerous small parcels to various family members, mostly so they could build houses. The Gordons bought a house on family land that had been deeded to one of Brenda's sisters; the Gordons bought the house and the land from the sister. By the time of the events at issue, Waller had about 136 acres left. The Gordons would later contend the 39.25 acres deeded to Brenda Gordon was intended to be her one-fourth share of the original Waller family land.

¶5. At the time the deed was executed, Waller was ninety years of age. She lived by herself but required assistance with some day-to-day activities, including bathing. Brenda Gordon would usually help Waller bathe. Waller was legally blind and could not drive. She was also hard of hearing; even the Gordons acknowledge that one would have to "[speak] into her left ear and talk[ ] slowly" to be understood. And Waller had had three hip replacements and had difficulty walking. Brenda Gordon and one of her sisters had a joint (but not several) power of attorney for Waller.

¶6. For their part, the Gordons testified that Waller was mentally sound and knew what she was doing. On the other hand, Joyce Webb, one of Waller's other daughters, testified that Waller's "mental state had started declining" and described her as "dependent" and childlike.

¶7. The surveyor testified he was hired by the Gordons and only ever talked with them. His account directly contradicted the Gordons' testimony that Waller had at least spoken to him before the survey. The Gordons drove Waller to the attorney and were present when she executed the deed, but they did not bring the magnifying device she needed to read it. The Gordons also admitted they did not tell other family members about the transfer, though apparently the family had not been consulted on prior occasions when Waller transferred land to other family members.

¶8. Waller also had cosigned on a $ 44,000 debt consolidation loan for the Gordons. She put up certificates of deposit and some of her land as collateral. The Gordons were often late making payments. The Gordons also never paid the surveyor for several jobs relating to Waller's land, including surveying the disputed parcel. But they did have money to travel frequently to go to football games. It was suggested that the land deeded to the Gordons was more valuable than the rest because it fronted Highway 6 near Oxford. And while it may have been a quarter of the original family land, it was closer to a third of the 136 acres that remained.

¶9. The deed transferring the 39.25 acres to the Gordons was executed on January 22, 2015. The conservatorship was opened on September 7, 2016, and Waller died on May 26, 2017.

¶10. The petition to set aside the deed went to trial on September 20, 2017. At the start of the hearing, the estate's attorney made an oral motion to exclude the testimony of Waller's physicians and attorney on the basis of ex parte contact by the Gordons' attorney. The chancellor granted the motion. Ultimately, the chancery court entered a final judgment setting aside the deed under Mississippi Rule of Civil Procedure 54(b).

DISCUSSION

1. Exclusion of Waller's Physicians

¶11. Based on Mississippi Rule of Evidence 503(f) and the line of cases originating with Scott v. Flynt , 704 So. 2d 998 (Miss. 1996), the chancellor excluded the testimony of Waller's physicians because the Gordons' attorney had engaged in ex parte communications with them. The Gordons contend this was error, but they failed to preserve the issue by making an offer of proof as to the physician witnesses' testimony. Mississippi Rule of Evidence 103(a)(2) states in relevant part,

(a) Preserving a Claim of Error. A party may claim error in a ruling to ... exclude evidence only if the error affects a substantial right of the party and[ ] ... a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

It may be "apparent from the context" that the physicians would have testified about Waller's mental capacity and health, but this Court has no way to know what the witnesses would have actually said, so it cannot find any error in the exclusion of their testimony. See M.R.E. 103 ; see also U. of Miss. Med. Ctr. v. Foster , 107 So. 3d 149, 154-55 (Miss. 2013) ("[W]ithout a proffer, [the trial judge] had no opportunity to correct the mistake (if there was one), and we have no way to judge whether the opinions UMMC claims were excluded[ ] were sufficiently important to require reversal.").

¶12. We find the issue of the exclusion of the physicians' testimony barred.

2. Exclusion of Waller's Attorney

¶13. The ex parte contact rule established in Scott v. Flynt , 704 So. 2d 998 (Miss. 1996), has only ever been applied to physicians. Scott was expressly limited to medical providers, and it was predicated on Mississippi Rule of Evidence Rule 503(f), which by its own terms addresses the privilege between patient and physician or psychotherapist. Scott , 704 So. 2d at 1004-05. We are aware of no authority extending the rule to attorneys, and we will not do so now. But we find no reversible error here because this issue has also been waived.

¶14. After the objection was made at trial, the Gordons' attorney conceded that the ex parte contact rule did apply to attorneys; he said "I did not know that I needed to seek permission from Ms. Wall. That's on me." His argument was only that the estate's objection was untimely and that it was impossible for him to have made his case without speaking to the witnesses directly. The former point was unsupported by argument or authority, and the latter was immediately conceded when the chancellor pointed out that the Gordons could have requested permission from the estate or deposed the witnesses with the estate's counsel present.

¶15. The chancellor then excluded the testimony, and the Gordons tried the case without further complaint. The first time they presented any substantive argument against the exclusion of the attorney's testimony was in their post-trial motion under Mississippi Rule of Civil Procedure 59. It was also the first time the Gordons proffered the substance of the attorney's testimony, by attaching an affidavit to the Rule 59 motion.

¶16. It is axiomatic that "[t]he trial judge cannot be put in error on a matter which was not presented to him for decision." Brown v. Miss. Transp. Comm'n , 749 So. 2d 948, 954 (Miss. 1999) (citing Cossitt v. Federated Guar. Mut. Ins. Co. , 541 So. 2d 436, 446 (Miss. 1989) ). The Gordons' arguments and proffer came too late for the chancery court to consider the issue as a question of the admissibility of the evidence at trial. Thus, the issue is not whether the chancery court properly sustained the estate's objection to the attorney's testimony; if it is to be considered at all, the question is whether the chancellor erred in denying the Rule 59 motion to alter or amend the judgment or for a new trial.

¶17. "Under Rule 59, the trial judge has discretion to grant a new trial or to amend the judgment 'if convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.' " McNeese v. McNeese , 119 So. 3d 264, 272 (Miss. 2013) (citation omitted). The chancery court is a court of equity, and its power to grant a new trial is very broad; so we hesitate to say the chancery court could not have granted this motion for a new trial if it had found it necessary in the interest of justice. See, e.g. , Barriffe v. Estate of Nelson , 153 So. 3d 613, 618 (Miss. 2014) ("[G]iven the important corrective role of new-trial motions, the discretion granted to the court is exceedingly broad." (internal quotation marks omitted) (quoting Jack H. Friedenthal, et al., Civil Procedure 592 (4th ed. 2005)). But we cannot hold the chancery court to error for denying a Rule 59 motion based on a party's failure to argue an issue at trial. "[A] motion to alter or amend the judgment under Rule 59(e) ... 'cannot be used to raise arguments which could, and should, have been made before the judgment issued.' " Rosenzweig v. Azurix Corp. , 332 F.3d 854, 863-64 (5th Cir. 2003) (citation omitted).

¶18. The Gordons did contend they were ambushed with the objection, but even on appeal they have made no substantive argument regarding the timing of the objection, nor have they cited authority suggesting it was untimely. We cannot find an abuse of discretion in the denial of the Rule 59 motion.

¶19. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ., CONCUR.