Rushing v. State

• Decision Date: 16 April 1998
• Docket Number: No. 96-KA-00814-SCT,96-KA-00814-SCT
• Citation: 711 So.2d 450
• Parties: Susan RUSHING a/k/a Susan R. Rushing v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 450

711 So.2d 450

Susan RUSHING a/k/a Susan R. Rushing v. STATE of Mississippi.

No. 96-KA-00814-SCT.

Supreme Court of Mississippi.

April 16, 1998.

Kimberly Drown Kitchens, Kitchens & Kitchens, Ripley, for Appellant.

Michael C. Moore, Attorney General, Billy Gore, Sp. Asst. Attorney General, Jackson, for Appellee.

Before SULLIVAN, P.J., and McRAE and SMITH, JJ.

McRAE, Justice, for the Court:

¶1 Susan Rushing was indicted on a single count of uttering a forged prescription by the grand jury of the Alcorn County Circuit Court on October 13, 1995 and found guilty as charged. On July 17, 1996, the circuit court entered an order sentencing her to five years in the custody of the Mississippi Department of Corrections and fining her $2,500. Her motions for a new trial and for a j.n.o.v. were denied on July 22, 1996. We find no merit to her arguments that the circuit court erred in not allowing the defense to make an opening statement; that the court improperly ruled that certain witness testimony was inadmissable; that the charging affidavit did not conform with the indictment to identify the correct date of the alleged offense; that the State made an improper appeal to the community conscience in closing arguments; that the circuit court erroneously failed to rule on the admissibility of the petitioner's other charges; that the jury verdict was against the overwhelming weight of the evidence; and that she did not receive effective assistance of counsel. Accordingly, we affirm the decision of the court below.

I.

¶2 On Saturday morning, July 8, 1995, Susan Rushing saw her physician, Dr. Jimmy Meeks, at the Ripley Medical Clinic. He wrote her a prescription for Voltaren, a non-narcotic anti-inflammatory drug used to treat arthritis and arthritis-type pain. He declined her request to refill a prescription for Lortab, a narcotic analgesic combined with Acetaminophen, testifying that he had prescribed several different medications for her back pain, but refused to give her any more of the drug because he felt that she had been getting too many prescriptions for potentially addicting drugs.

¶3 Later the same day, a woman identifying herself as Dorothy Wilson brought a prescription for Lortab in to be filled at the Wal-Mart Supercenter in Alcorn County. The pharmacist, Barbara Jones, noted that the amount of medication prescribed, number 60, was an usually large quantity and testified that normally a pain medication such as Lortab is prescribed in quantities of 12, 24 or 30. The woman talked to Jones for fifteen or twenty minutes about the obviously painful eye injury/condition from which she suffered and the pharmacist assumed that was why so much medication had been prescribed. She remained suspicious, however, because of the woman's talkativeness, the quantity of medication prescribed (with refill) and the fact that the name of the prescribing physician, J. Meeks, was not on the letterhead of the script form.

¶4 On Monday, Jones called Dr. Meeks to verify the prescription. He was not acquainted with Dorothy Wilson, but when Jones described the woman who had given her the prescription, he immediately identified her as a patient he had just seen, but said that her name wasn't Dorothy Wilson. Looking through his charts, he found that it was Susan Rushing, whom he recalled seeing on Saturday.

¶5 At trial, Dr. Meeks testified that the prescription filled at the Wal-Mart Supercenter on July 8, 1995 was not the same prescription he had written for Rushing earlier that day and that it was not his signature on the prescription. Like the pharmacist, he noted that sixty tablets was an unusually large quantity of Lortab and testified that he normally prescribed only fifteen or twenty tablets. He also indicated that the strength of the tablets was improperly marked on the prescription as 75, rather than 7.5 (Acetaminophen and 7.5 milligrams of Hydrocodone, the narcotic component of Lortab).

II.

¶6 Following the circuit court's introductory comments to the jury, the District Attorney was asked if the State was going to make any opening statements. He declined. The defense was not invited to present an opening argument and Rushing's attorney made no objection. Rushing now asserts that the circuit court erred in not providing her with an opportunity to make an opening statement.

¶7 This assignment of error is procedurally barred by Rushing's failure to make a contemporaneous objection at trial. Lester v. State, 692 So.2d 755, 795 (Miss.1997). However, because Rushing bases her claim of ineffective assistance of counsel, in part, on her attorney's failure to make an objection or request the opportunity to make an opening statement, we address the issue only to the extent necessary to address that matter.

¶8 As Rushing acknowledges, an opening statement is not mandatory. Miss.Code Ann. § 11-7-147 (1972) provides as follows:

Before the introduction of the evidence, the plaintiff may briefly state his case orally to the jury, and the evidence by which he expects to sustain it. Then the defendant may briefly state his case, and the evidence by which he expects to support it.

Likewise, Rule 10.03 of the Uniform Rules of Circuit and County Court Practice states, in relevant part, that "[t]he defense may make an opening statement to the jury at the conclusion of the state's opening statement or prior to the defendant's case in chief." Rule 10.03 further provides that "[t]he statement shall be confined to a statement of the defense and the facts the defendant expects to prove in support thereof."

¶9 Both parties rely on Black v. State, 308 So.2d 79 (Miss.1975). In Black, after the State indicated that no opening statement would be made, the defense asked to make an opening statement. We found that the circuit court did not abuse its discretion in postponing the defendant's opening statement until the presentation of the evidence for the defense. In so ruling, the Court reiterated the general rules:

In the absence of statute, accused has no right to make an opening statement at the close of the prosecutor's opening statement, and it is discretionary with the court to allow the opening statement for the defense to be made after the close of the testimony for the prosecution. 23A C.J.S. Criminal Law § 1086 (1961).

In 93 A.L.R.2d 965 (1964) the rule is stated thus:

Where there is no statute or rule of court as to the time at which defense counsel in a criminal case may make his opening statement, the courts generally hold that it is a matter within the sound discretion of the trial court, and any exercise of such discretion will not be reversible error unless there is a clear showing of abuse of discretion or the defendant suffers some substantial injury.

Black, 308 So.2d at 80. Based on those authorities, the Court found as follows:

We are unable to determine from the record in this case that appellant was prejudiced by the court's ruling. This is a matter which must be allowed to rest largely within the discretion of the trial court. In the absence of a showing of manifest abuse of discretion, or that substantial prejudice resulted, the action of a trial judge in such a case must be sustained. Here, appellant was not denied the right to state his defense prior to putting on his evidence. The prosecution having made no statement, the court merely postponed the making of the statement for the defense until the time came for presentation of the evidence for the defense. We cannot say, under these circumstances, that there was an abuse of discretion by the trial court or that any right of appellant was prejudiced thereby.

Id. As distinguished from Black, Rushing's attorney did not request the opportunity to present an opening argument at any point in the proceedings. After the State finished its case in chief, the defense moved for a directed verdict, asserting that the State had not met its burden. When the Court advised Rushing's attorney that the first witness could be called, he replied, "Your honor, the defense rests." We cannot speculate how the circuit court might have ruled had the defense called some witnesses and requested the opportunity to make an opening statement at that time. However, given that the judge received no request from Rushing's attorney to make an opening statement at any time during the trial, we find no abuse of discretion.

III.

¶10 Rushing next complains that the circuit court erred in ruling, without "a full blown hearing" that testimony by Officer Jimmy Webb, whom Rushing alleged raped her daughter about six months after her arrest, was irrelevant and inadmissible. She contends that his testimony is evidence of the arresting officer's bias against her. There is no evidence in the record of the alleged rape of Rushing's daughter or of any threats against Rushing or her family by local law enforcement officials. The Appellant's Record Excerpts accompanying this appeal include a newspaper article from the Corinth, Mississippi Daily Corinthian, dated October 31, 1995, about the investigation of the alleged rape of an unidentified woman by Officer Jimmy Webb. The article was not part of the record presented to the circuit court nor is there any evidence linking the unidentified woman to Rushing. Furthermore, the alleged incident occurred more than six months after Rushing's arrest.

¶11 " '[T]his Court will not consider matters which do not appear in the record and must confine itself to what actually does appear in the record.' " Medina v. State, 688 So.2d 727, 732 (Miss.1996)(quoting Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995)). Further, we "cannot decide an issue based on assertions in the briefs alone; rather, issues must be proven by the record." Medina, 688 So.2d at 732. The issue, therefore, is not properly before this Court.

IV.

¶12 Rushing had the fraudulent prescription filled on July 8, 1995. The grand jury's indictment charged that Rushing "on the 8th day of July, A.D.,...