IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-KA-00814-SCT

SUSAN RUSHING a/k/a SUSAN R. RUSHING

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 07/17/96

TRIAL JUDGE: HON. BARRY W. FORD

COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: KIMBERLY DROWN KITCHENS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: BILLY GORE

DISTRICT ATTORNEY: JOHN R. YOUNG

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 04/16/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 5/7/98

BEFORE SULLIVAN, P.J., 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., 1995, wilfully, unlawfully and feloniously

deliver[ed] or transfer[red] a false, fraudulent or forged prescription." The Affidavit for Warrant for

Arrest, sworn on July 28, 1995, however, stated that the incident occurred "on or about the 18th day

of July 1995." Rushing now contends that she was without notice of the actual date of the offense

and alleges that the discrepancy caused her to have to "be prepared to defend herself on two separate

occasions."

¶13. In Medina, supra, the appellant charged that her indictment was fatally flawed because she was

charged with selling controlled substances "over a period commencing in September 5, 1991 until

January 10, 1992" rather than "over a twelve-month consecutive period." Medina, 688 So. 2d at

730. Rejecting her assertion that the trial court erred in not quashing the indictment, we looked at

whether Medina was unable to prepare a defense or otherwise was prejudiced by the discrepancy. Id.

See also Shelby v. State, 246 So. 2d 543, 545 (Miss. 1971)(no error in amending indictment to show

charge on February 27, 1970 instead of February 28, 1970 because change did not materially alter

facts so as to prejudice defendant's case). However, in the case sub judice, the original grand jury

indictment, which is intended to "fully notify the defendant of the nature and cause of the accusation,"

stated the correct date. U.R.C.C.C. 7.06. Even if the date on the indictment rather than on the

charging affidavit had been incorrect, Rule 7.06(5) provides that "[f]ailure to state the correct date

shall not render the indictment insufficient." Rushing, therefore, cannot complain that she was

prejudiced or unable to determine the date of the charge against her. There is no merit to this

assignment of error.

V.

¶14. Rushing next contends that the State, in its closing argument, unfairly inflamed the jury by
appealing to its community conscience and referring to the importance of removing drugs from the

streets. In closing arguments, the Assistant District Attorney stated:

Now on these prescriptions, this is a serious problem in our community. It's not just people

selling drugs out on the street. It's people getting forged prescriptions for either abuse that they

have or to get the drugs and sell them to someone else. And this case is a very serious case for

the State of Mississippi and law enforcement officers, ladies and gentlemen, in your community.

No objection was made to the comment, so Rushing is barred from raising it on appeal. Lester v.

State, 692 So. 2d 755, 795 (Miss. 1997).

¶15. In as much as Rushing has raised her attorney's failure to object at trial as a basis for her claim of

ineffective assistance of counsel, we note that attorneys are permitted "broad latitude" in presenting

their closing arguments. Lester, 692 So. 2d at 795; Berry v. State, 575 So. 2d 1, 9 (Miss. 1990). In

Taylor v. State, 672 So. 2d 1246 (Miss. 1996), this Court reiterated:

As set forth in Craft v. State, 226 Miss. 426, 84 So. 2d 531 (1956), the test to determine if an

improper argument by a prosecutor requires reversal is whether the natural and probable effect

of the prosecuting attorney's improper argument created unjust prejudice against the accused

resulting in a decision influenced by prejudice.

Id. at 1270 (quoting Dunaway v. State, 551 So. 2d 162, 163 (Miss. 1989)). In Taylor, we found that

while the prosecution's derogatory comments about Taylor's attorney were "unfortunate," they did

not constitute reversible error, distinguishing the case from those where clearly improper arguments

were made such as Bridgeforth v. State, 498 So. 2d 796 (Miss. 1986), where the defendant was

referred to as "scum," and Ellis v. State, 254 So. 2d 902 (Miss. 1971), where the prosecution labeled

the defendant a "professional criminal." Taylor, 672 So. 2d at 1269-70. In Lester, likewise, this

Court found comments by the prosecution that if the jury believed certain testimony and theories by

the defense, "they could write down a verdict of not guilty and she would eat it" to be bordering on

the inappropriate; Lester's failure to contemporaneously object, however, procedurally barred further

consideration. Id. at 795. The prosecution's comments in the case sub judice do not approach the

level of those which we have found to be unfortunate, inappropriate or clearly improper. Further, in

Carleton v. State, 425 So. 2d 1036, 1039 (Miss. 1983), we found nothing improper in the

prosecution's appeal to the community conscience in its closing comment that, "I think when you go

back [in the jury room] . . . you are going to find that this can be nothing but murder. You know, we

have got to let people know what the people of Harrison County stand for." See also United States

v. Fields, 72 F.3d 1200, 1208 (5th Cir. 1996)("appeals to the jury to act as the conscience of the

community are permissible, so long as they are not intended to inflame."). Procedural bar

notwithstanding, it cannot be said that Rushing was prejudiced by the State's argument or her

attorney's failure to object thereto.

VI.

¶16. Rushing next argues that the circuit court failed to rule on her motion in limine regarding the

admissibility of other charges against her, stating that she had been charged with "numerous counts of

transferring a forged prescription." She further asserts that she had wanted to testify on her own

behalf, "stating her innocence, disclosing her whereabouts on the dates in question, and describing the
situation surrounding her arrest due to the law enforcement agents' bias against her." Rushing now

claims that because she did not know how the judge would rule on the motion in limine, she was

advised by her attorney that she could not testify. She also charges that she was not questioned as to

whether she understood her right to testify and knowingly and voluntarily waived that right.

¶17. Rushing's attorney filed a motion in limine on July 16, 1996, the day before trial, seeking to

exclude from evidence any mention of prior bad acts or convictions. There is nothing in the record to

indicate whether the motion was ruled on by the court. It is well-established that "[i]t is the

responsibility of the movant to obtain a ruling from the court on motions filed by him and failure to

do so constitutes a waiver of same." Martin v. State, 354 So. 2d 1114, 1119 (Miss. 1978)(citing

Grant v. Planters' Bank, 5 Miss. [4 How.] 326 (1840)). See also, Holly v. State, 671 So. 2d 32

(1996), cert. denied, 116 S.Ct. 2565, r'hrg denied, 117 S. Ct. 26 (1996)(claim that trial court erred

in admitting evidence procedurally barred where defendant failed to pursue ruling on motion in limine

and further, failed to raise contemporaneous objection to admission of evidence at trial). Thus, we do

not hold the trial court in error for not ruling on the motion. Moreover, the only evidence in the

record that Rushing may have previously attempted to have passed a forged prescription is a July,

1994 doctor's affidavit marked as an exhibit to a separate case. There is no indication that evidence of

this or any other allegations against Rushing was made known to the jury. It is not even clear from

the record whether she had any prior convictions at the time of her trial.

¶18. There further is nothing in the record to indicate that Rushing sought to testify or that she was

denied the opportunity to do so. 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. In Wilcher v. State, 697

So. 2d 1087, 1095 (Miss. 1997), where the defendant claimed that he was denied the opportunity to

testify because the judge declined to make a blanket ruling on his motion in limine regarding the

admissibility of prior bad acts, we further found that the assignment of error was procedurally barred

because of Wilcher's failure to make a proffer of the testimony he would have presented. The

Wilcher Court followed the rationale set out in Settles v. State, 584 So. 2d 1260 (Miss. 1991):

This brings us to a consideration of whether Settles has properly preserved the issue. In

Saucier v. State, 562 So. 2d 1238, 1245 (Miss. 1990), we held that in order to preserve the

issue whether a court erred in ruling on a motion to limit use of prior convictions the least that

is required of the criminal defendant is that a proffer be made of the testimony that he would

have offered but for the ruling. Id. at 1245. While, as we note above, the content of defendant's

testimony may be of little assistance to the trial court in making a decision on admissibility, the

requirement of a proffer serves two purposes. It provides a modicum of assurance that the

requested ruling is not purely advisory and, most importantly, it provides a basis for this court's

harmless error analysis.

Of course, if a proffer is required in the face of an erroneous ruling, surely no less is required to

preserve the issue where no ruling is made. Settles made no such proffer. Under the

circumstances we need not reach the question urged upon us by the state, whether, the failure

to actually testify is an absolute bar to the question of the availability of prior conviction

evidence. Settles' conviction must be affirmed because he failed preserve the issue in the manner

we have prescribed in Saucier, 562 So. 2d 1238.
Wilcher, 697 So. 2d at 1095 (quoting Settles, 584 So. 2d at 1265). As we further stated in

Heidelberg v. State, 584 So. 2d 393, 395 (Miss. 1991), a defendant must preserve for the

record"substantial and detailed evidence" of what he would have testified since . . . "if a defendant in

fact has nothing of substance to say in his own defense, we are hardly likely to give the time of day to

his suggestion that his right of allocution was chilled by the foreknowledge that the prosecution

would present his prior conviction."

¶19. Procedural bar notwithstanding, we cannot hold the circuit court in error for failing to rule on

the admissibility of any prior bad acts or previous convictions until the State seeks to introduce such

evidence. Wilcher, 697 So. 2d at 1095. There is no indication in the record that the State attempted

to introduce evidence of Rushing's alleged prior charges of forging prescriptions.

VII.

¶20. At the close of the State's evidence, Rushing moved for a directed verdict, asserting in part that

the State had not met its burden of proof. The motion was overruled by the circuit court, as were

Rushing's subsequent motions for a j.n.o.v. or a new trial. She now contends that the jury's verdict

was against the weight of the evidence.

¶21. This Court will reverse the jury's findings "'only where the evidence is such that reasonable and

fair-minded jurors could only find the defendants not guilty.'" Jackson v. State, 689 So. 2d 760, 766

(Miss. 1997)(quoting Heidel v. State, 587 So. 2d 835, 838 (Miss. 1991)). In determining "whether or

not a jury verdict is against the overwhelming weight of the evidence, 'this Court must accept as true

the evidence which supports the verdict and will reverse only when it is convinced that the circuit

court has abused its discretion in failing to grant a new trial.'" Coleman v. State, 697 So. 2d 777, 788

(Miss. 1997); Herring v. State, 691 So. 2d 948, 957 (Miss. 1997); Jackson, 689 So.2d at 766. "Only

in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to

allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal."

Pleasant v. State, 701 So. 2d 799, 802 (Miss. 1997); Herring, 691 So. 2d at 957; Benson v. State,

551 So. 2d 188, 193 (Miss. 1989)(citing McFee v. State, 511 So. 2d 130, 133-134 (Miss. 1987)).

¶22. Accepting as true the evidence that supports the jury's verdict, there is no merit to Rushing's

assignment of error. Rushing saw her doctor on July 8, 1995, the day the prescription was presented

at Wal-Mart. Her physician, Dr. Jimmy Meeks, denied writing Rushing a prescription for Lortab,

testifying that he had, in fact, refused her request to write a prescription for the drug. Although the

patient's name listed on the prescription was Dorothy Wilson, when the pharmacist, Barbara Jones,

called Dr. Meeks because of her suspicions, he identified the woman as Rushing, based on the

pharmacist's description of her and the particularly nasty eye condition from which she suffered.

Considering the facts in the record, we cannot say that the jury's verdict was against the

overwhelming weight of the evidence.

VIII.

¶23. Rushing finally asserts that her attorney did not provide effective assistance of counsel at trial or

in the presentation of her post-trial motions. She presents a laundry list of alleged deficiencies,

including counsel's failure to subpoena witnesses on her behalf; to confront the alleged bias of the

arresting officers; to have the circuit court rule on her motion in limine; to allow her to testify
because her other charges would be used against her; to actively and reasonably communicate with

her prior to trial; to inform her as to which charge she would be defending at trial; to investigate

possible witnesses for the trial; to give an opening statement and to object to the circuit court's

bypass of an opening argument by the State; and to object to the comments in the State's closing

argument about "the community conscience."

¶24. In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that

his attorney's performance was deficient, and that the deficiency was so substantial as to deprive her

of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-96 (1984); Wilcher v. State, 479 So. 2d

710, 713 (Miss. 1985); Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984). We look at the totality

of circumstances to determine whether counsel's efforts were both deficient and prejudicial. Carney

v. State, 525 So. 2d 776, 780 (Miss. 1988); Read v. State, 430 So. 2d 832, 839 (Miss. 1983).

"Judicial scrutiny of counsel's performance [is] highly deferential." Strickland, 466 U.S. at 689. There

is a strong but rebuttable presumption that counsel's conduct falls within the wide range of reasonable

professional assistance. Carney, 525 So. 2d at 780; Gilliard v. State, 462 So. 2d 710, 714 (Miss.

1985). Only where it is reasonably probable that but for the attorney's errors, the outcome of the trial

would have been different, will we find that counsel's performance was deficient. Dickey v. State,

662 So. 2d 1106, 1109 (Miss. 1995); Reed v. State, 536 So. 2d 1336, 1339 (Miss. 1988).

¶25. Rushing first contends that her attorney failed to investigate and subpoena witnesses for her trial

and thus, did not confront the alleged bias of the arresting officers. As we noted supra,there is

nothing in the actual record to support Rushing's claim of bias against Officer Jimmy Webb. More to

the point, the alleged incident upon which she builds her allegations of bias occurred some six months

after her arrest. It cannot be said that Rushing's attorney acted outside the realm of reasonable

professional assistance in not pursuing the introduction of Webb's testimony or that the outcome of

her trial would have been different.

¶26. Counsel's failure to have the circuit court rule on Rushing's motion in limine and his alleged

refusal to allow her to testify because her other charges would be used against her was addressed

supra. Especially considering that there is no evidence in the record to show that Rushing previously

had been convicted of passing forged prescriptions and that the State made no effort to introduce any

such evidence, her attorney's actions were not unreasonable. Further, there is no showing that she

was prejudiced by her failure to take the stand at trial.

¶27. Rushing further complains of her attorney's failure to give an opening statement as well as his

failure to object to the circuit court's bypass of an opening argument by the State. Given the extent of

the State's evidence against Rushing, her attorney's strategy of attempting to discredit the State's

witnesses through extensive cross-examination and then moving for a directed verdict based on the

sufficiency of the evidence was probably the best tactic to take. Her case hardly can be said to have

been prejudiced by the lack of opening statements nor would it seem that the outcome of the trial

would have been different had the facts been presented to the jury one more time.

¶28. Finding as we have that there is no merit to Rushing's argument that the prosecution made

inappropriate comments about "the community conscience," we further cannot say that her attorney

acted outside the realm of reasonable professional assistance in failing to object to them.

¶29. Rushing has not shown either that her attorney's performance was deficient or that the outcome
of her trial might have been different but for any alleged deficiencies. Accordingly, there is no merit

to the assignment of error.

IX.

¶30. Finding no merit to any of the assignments of error raised by Rushing or to her claims of

ineffective assistance of counsel, we affirm the order of the circuit court.

¶31. CONVICTION OF UTTERING A FORGED PRESCRIPTION AND SENTENCE OF

FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS, WITH CONDITIONS, AND PAYMENT OF A FINE OF $2,500.00 AND

OTHER COSTS AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH, MILLS

AND WALLER, JJ., CONCUR.