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Rushing v. State

April 16, 1998

SUSAN RUSHING A/K/A SUSAN R. RUSHING
v.
STATE OF MISSISSIPPI



COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT

Before Sullivan, P.j., McRAE And Smith, JJ.

The opinion of the court was delivered by: McRAE, Justice

DATE OF JUDGMENT: 07/17/96

TRIAL JUDGE: HON. BARRY W. FORD

NATURE OF THE CASE: CRIMINAL - FELONY

¶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 ...


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