text:
    STATE of Louisiana v. Calvin WARE.
    No. 2006-K-1703.
    Supreme Court of Louisiana.
    June 29, 2007.

      Charles C. Foti, Jr., Attorney General, Brent C. Coreil, District Attorney, Raymond J. LeJeune, Assistant District Attorney, for applicant.
    James Edward Beal, Jonesboro, for respondent.
   PER CURIAM.

hThe state charged defendant by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. After trial by jury, defendant was found guilty of attempted forcible rape, a lesser included offense. After adjudicating defendant a second offender for purposes of R.S. 15:529.1(A)(l)(a), the trial court sentenced him to 24 years imprisonment at hard labor, the first two years to be served without benefit of probation, parole, or suspension of sentence. On appeal, the Third Circuit reversed defendant’s conviction and sentence after concluding that “a rational trier of fact could not have found the Defendant guilty beyond a reasonable doubt.” State v. Ware, 05-1451, p. 5 (La.App. 3rd Cir.4/12/06), 929 So.2d 240, 244. We granted the state’s application to reverse that decision because the court of appeal erred by substituting its appreciation of the evidence for that of the factfin-der and thereby failed to accord due deference to the rational credibility choices made by the jury.

The evidence at trial established the following. On the evening of November 22, 2003, the victim brought her four small children to the home of her ^former in-laws, Calvin and Beth Ware. The victim testified that she had a good relationship with her former father-in-law, defendant, despite divorcing his son in April, 2003. The victim explained that Mrs. Ware often babysat her children while she was at work. On this particular occasion, the victim brought her children to the defendant’s home to spend the night. The victim also intended to spend the night at the house and to leave for work the next morning.

Later that evening, defendant agreed to drive his daughter, her boyfriend and his daughter’s young son to a Boy Scout camp maintained by the boyfriend near Bayou Chicot, north of Ville Platte, Louisiana. The victim and her nine-year-old son, Cody, accompanied the group on the drive, leaving the other three children in the care of Mrs. Ware. The victim explained that she chose to ride along with the group because she had never been to the property in Chicot and was curious to see it before she permitted her sons to spend the weekend there with their aunt. After dropping off the group at the camp in Chicot, defendant remained in the car with the victim and Cody. He then expressed a desire to drive around the back roads of the area to look for deer and other animals.

Shortly thereafter, the victim realized that defendant was drinking from a bottle of vodka he had underneath his seat. At one point in the excursion, defendant stopped at a service station where the victim bought him another pint of vodka. Eventually, as defendant cruised the back roads, the victim fell asleep in the front seat of the car while Cody slept in the back. The victim awoke when she felt the car roll to a stop and heard the defendant open the passenger side door. The victim testified at trial that when she tried to get out of the vehicle, defendant shoved her back onto the front seat. She then tried to get out of the car through the driver’s side door but the defendant grabbed her leg and began to pull off her | ¡¡jeans as she was “fighting and trying to get away.” Defendant managed to pull the victim’s jeans off of one leg and to pull down her underwear as she struggled and screamed. According to the victim, he then penetrated her while the young Cody slept in the back seat.

During the struggle, the victim inadvertently hit a pre-programmed speed dial number on her cellular phone, which called the Oakdale Police Department, her former husband’s employer. Officer Charlene Hudgens, the dispatcher on duty that night, listened on that open line and overheard what seemed to her background conversation between two persons engaged in some sort of “struggle.” The officer based her opinion on “comments I could hear the female saying towards the male subject directing him to stop doing certain things.” The woman was “sobbing and crying” and the male voice was low and stern. It seem to the officer that “there was some sort of not only a physical assault, but possibly a ... sexual assault going on.” Officer Hudgens alerted her supervisor and logged in the call. Using the caller identification system at the police department, Officer Hudgens determined the telephone number used by the phone placing the call and she called the number back.

In the meantime, the victim had managed to pull away from the defendant just after he turned from her momentarily as he experienced problems with ejaculating and she escaped from the car. Shortly after the assault, defendant began “fidgeting” underneath the hood of the vehicle and told the victim that the car had broken down. He instructed her to call someone on her cellular phone to come pick them up. Before the victim was able to dial anyone, she received Officer Hudgens’s call on her phone. By that time, Officer Hudgens recognized the victim’s voice, familiar to her because the victim had been married to a fellow | ¿officer at the Oakdale Police Department. Hudgens’s advised the victim, who was unable to furnish an exact location because she was unfamiliar with the area, to keep her phone on until help arrived. The victim woke up her son and made her way to a nearby house at the end of the road where defendant had parked and she called the police.

Evangeline Parish Deputy Sheriff Michael Fontenot arrived first on- the scene, and he found defendant asleep at the wheel of his car, the driver’s side door open and the hood of the vehicle raised. When Deputy Fontenot tugged on defendant to remove him from the car, he woke up and stated, “She got what she deserved.” It appeared to the deputy that defendant was intoxicated and his breath smelled of alcohol. Deputy Fontenot placed defendant in handcuffs with the aid of Deputy Dwayne Andrus, who had arrived on the scene just seconds behind him and heard defendant repeat his statement that the victim “got what she deserved.” The comment was also overheard by Deputy Anthony Reed, the third and final officer to arrive on the scene. With defendant secured in the presence of Deputies Andrus and Reed, Deputy Fontenot drove down the road to the residence where the victim had placed the call to his office. The officer separated mother and son to spare the child of details of the incident and asked the victim what had happened. She explained that defendant had asked her for sex, that she had turned him down, and that after driving around for a while, he then assaulted her, pulling down her pants and choking and hitting her. However, in response to a direct question by Deputy Fontenot, the victim stated that she had not been raped by defendant.

Deputy Fontenot placed the victim and her son in his patrol unit and drove back to the scene. At that time, defendant told Fontenot that he had been driving |Bthe back roads looking for deer when his car broke down. Defendant explained that he stayed off the main roads because “he likes to drink” and would not get a D.W.I. for driving the back roads. Although the officers did not see any bruising on the victim’s face and neck, Deputy Fontenot placed defendant under arrest for simple battery. According to Deputy Reed, after repeating her statement that defendant had grabbed her around the throat and “knocked her around a little bit” but had not sexually assaulted her, she turned to him and added, “It’s not that he didn’t try.” Deputy Reed then drove the victim and her son back to defendant’s home while Deputy Fontenot transported defendant to the station house for booking and Deputy Andrus remained on the scene with the car until a wrecker arrived.

Later that morning, the victim went to the Evangeline Sheriffs Department where she “broke down and cried” and stated that defendant had raped her. The police immediately sent her for a rape examination at the Ville Platte Medical Center. On that afternoon, the police also interviewed defendant, who gave a formal statement in which he admitted that had been drinking and explained that he remembered little of the evening. Two days later, defendant gave the police a DNA sample and at that time, when asked again what had happened, defendant stated that he loved the victim “like a daughter” but that if they “did have sex,” it was because “she wanted to.”

The results of the rape examination conducted at the Ville Platte Medical Center were largely negative. The examining physician, Dr. Steele, found no trauma to the victim’s back, neck, chest, or abdomen and did not detect any vaginal lesions, lacerations, or bruises. Dr. Steele did find the victim’s “mood and affect” | ^consistent with that of someone who had endured a sexual assault, but the results of vaginal swabs taken from her also proved negative.

The state thus could not provide physical evidence corroborating the victim’s account of rape and its only other witness on the scene at the time, the victim’s son Cody, had been asleep in the backseat of defendant’s ear for much of the night and recalled only that at one point he woke up when he heard his grandfather “hollering” at his mother. However, he did not see or hear anything else and fell asleep again until awakened by his mother before setting off on foot to find help.

Defendant did not testify at trial but his wife informed jurors that he was in such poor health that he dressed in jogging pants because he did not have the dexterity to button up a pair of pants, and that he drank “whatever he could get his hands on, and he’d make sure he had enough.” As a result, defendant had erectile difficulties which had not been improved by a recent prescription for Viagra which Mrs. Ware filled for him every month. She never saw him take the drug and, in any event, it did not work as their sex life got “worser each time.” Mrs. Ware testified that until the night of the incident, she and defendant had enjoyed a close relationship with the victim, even after she divorced their son. That relationship ended when she opened the door at Cody’s knock and found the victim standing on the porch crying and her husband seated in the back of a police cruiser parked outside. According to Ms. Ware, when she asked the victim what had happened, “this is exactly what she said on the porch that he tried to but she said he did not succeed.” Mrs. Ware admitted telling the victim that “... if it’d be anyone else that he had tried to rape ... I could believe but I can’t believe he tried to rape you.”

17Surveying this evidence, the court of appeal readily acknowledged that “the testimony of a victim alone may be sufficient to establish the elements of a sexual offense provided there is no internal contradiction or irreconcilable conflict with physical evidence.” Ware, 05-1451 at 5, 929 So.2d at 244 (internal quotation marks and citation omitted). Nevertheless,- the court concluded that “[w]hen faced with the overwhelming physical evidence which militates against the finding of a sexual assault, the testimony of the investigating officers, the testimony of the victim’s ten-year-old son who was present in the back seat during this occurrence, and the medical evidence submitted through the testimony of Dr. Steele, we are convinced that a fair reading of the whole record leads us to the inescapable conclusion that a rational ] trier of fact could not have found the Defendant guilty beyond a reasonable doubt.” Id.

IsHowever, a reviewing court may impinge on the trier of fact’s discretion “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1311 (La.1988). In the present case, the verdict returned by the jury, attempted forcible rape, was one that any rational trier of fact could have reached taking into account the entirety of the evidence introduced at trial, including not only the victim’s prior inconsistent statements on the scene and on the porch of the Ware residence that defendant did not rape her (although not |9for the lack of trying) but also the testimony of Officer Hudgens with regard to the “open line” call which sounded to her as if a sexual assault were taking place, the victim’s son who awoke briefly to the sound of conflict between his mother and the defendant, defendant’s statements on the scene that the victim “got what she deserved,” and, even, the testimony of defendant’s wife with regard to his sexual problems. A trier of fact may accept or reject the testimony of a witness in whole or in part. State v. Hano, 05-2090, p. 7 (La.App. 1st Cir.2006), 938 So.2d 181, 187; State v. Pontiff, 604 So.2d 71, 76 (La.App. 3rd Cir.1992). In the present ease, jurors therefore did not act irrationally by returning a verdict which gave defendant the benefit of the doubt on the issues of penetration and degree of force employed, see State v. Parish, 405 So.2d 1080, 1086-87 (La.l981)(“[I]t was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, aggravated rape and forcible rape, thereby assigning to the jury the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force used.”), but which also gave effect to testimony rationally supporting a finding that a conflict between the defendant and the victim stemmed from his unwanted and forcible sexual advances. Under these circumstances, due process does not require disturbing a fundamentally fair result.

Accordingly, the decision below is reversed, defendant’s conviction and sentence are reinstated, and this case is remanded for purposes of execution of sentence.

DECISION OF COURT OF APPEAL REVERSED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED. .

      . In his opposition to the state’s original application to this Court, his brief following this Court’s grant of the state’s application, and in oral argument, appellate counsel asserted that the state's evidence was insufficient to support the jury's verdict for a reason that the court of appeal did not specifically address in its decision: at no time during trial did any witness, either law enforcement personnel or the victim, directly identify defendant as the person arrested on the scene or as the alleged perpetrator of the crime. In counsel’s view, the prosecution’s failure to take this basic step renders defendant’s conviction an “absolute nullity.”
      The rational fact finder test of Jackson v. Virginia requires that the state negate any reasonable possibility of misidentification, State v. Long, 408 So.2d 1221, 1227 (La.1982), and the test presupposes that a defendant is, in fact, identified at trial. However, as defense counsel readily acknowledged in his opening remarks to the jury, this case did not involve strangers but "we have here a father-in-law, a son, a separated daughter [-in law] and some children involved....” The defense therefore made no effort to suggest that there was any possibility that the Calvin Ware present in court was not the Calvin Ware accused by the victim of rape and arrested on the scene for that offense by the police. Jurors had the opportunity of observing the witnesses as they testified in defendant’s presence and could judge for themselves from their demeanor that when the victim spoke of her relationship with her former father-in-law and accused him of rape, when her son Cody referred to his "paw paw” Calvin, when the defense called Joseph Lock-ett to testify about his relationship with his former wife and how she and the children often stayed in his father’s home, and Elizabeth Ware to detail for jurors the physical problems of her husband, they addressed the Calvin Ware whom the state had haled into court to face his former daughter-in-law’s accusation of rape. See State v. Stewart, 00-2960, p. 7 (La.3/15/02), 815 So.2d 14, 17 (citing 4 J. Wigmore, Evidence, § 1157 (Chad-borne rev. 1972) for the principle of autoptic preference, or things proved by the self-perception of the tribunal); see also State v. Zihlavsky, 505 So.2d 761, 765 (La.App. 2nd Cir. 1987)(lack of direct evidence of defendant’s age did not preclude his conviction for aggravated crime against nature when "defendant's physical appearance was open to view by the jurors” who could determine for themselves that more than three years separated his age from the ages of his juvenile victims).
      We further note here that there was evidence at trial that defendant had been drinking at the time of the offense, and later professed no recall of the incident when he gave the police a formal statement. The defense thereby suggested that the alcohol, when combined with defendant’s other physical problems, had rendered him incapable of performing sexually, as his wife detailed for jurors, and of penetrating the victim as she claimed. For all that appears, jurors gave effect to that testimony by returning their responsive verdict of attempted forcible rape. However, the defense did not go further and request, nor did the court give, a jury instruction on intoxication as a defense under La. R.S. 14:15 to crimes which require proof of specific intent. Although intoxication is not a defense to the charged offense of aggravated rape, a general intent crime, State v. Kennedy, 00-1554, p. 10 (La.4/3/01), 803 So.2d 916, 923, it is a defense to the crime for which jurors convicted him, attempted forcible rape, which requires proof of specific intent. State v. Dorsey, 30,683, p. 9 (La.App.2nd Cir. 6/24/98), 718 So.2d 466, 471, writ denied 98-2227 (La.12/18/98), 732 So.2d 54. Nevertheless, given the failure of the defense to request an instruction under La.R.S. 14:15, the evidence in the record of defendant's drinking at the time of the offense does not provide a reviewing court with a basis for speculating how a rational trier of fact might have responded if the defense of intoxication had been asserted at trial to any of the responsive verdicts provided the jury. Cf. State v. Juluke, 98-2740, pp. 4-5 (La.1/8/99), 725 So.2d 1291, 1293 ("The Jackson standard ... does not provide a defendant with a means of splitting alternative and inconsistent defense in different forums, raising one defense before the jury and when that fails, a second defense presupposing a different set of facts in an appellate court conducting sufficiency review under Jackson and La.C.Cr.P. art. 821(E).”).


source: Caselaw Access Project

author: CALOGERO, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Jennifer COLEMAN.
    No. 2005-K-1617.
    Supreme Court of Louisiana.
    June 29, 2007.

      Charles C. Foti, Jr., Attorney General, Julie E. Cullen, Assistant Attorney General, Camille A. Morvant, II, District Attorney, for applicant.
    Christopher Albert Aberle, Mandeville, Louisiana Appellate Project, Sherry Wat-ters, for respondent.
   CALOGERO, Chief Justice.

Bln this case, we apply the standard for granting a new trial in a criminal matter based on newly discovered evidence and conclude the trial judge did not abuse his discretion in denying the defendant’s motion for new trial. For the reasons set forth below, we vacate the court of appeal’s decision, which reversed the defendant’s convictions for aggravated second degree battery and second degree kidnapping, and we remand the case to the court of appeal for consideration of the defendant’s remaining assignment of error.

FACTS and PROCEDURAL HISTORY

In May 2001, the victim, Frank Bayonne, drifted from Natchitoches to Thibo-daux and began “hanging around” the defendant’s neighborhood. Believing that Bayonne had broken into her apartment and stolen some of her belongings, the defendant, Jennifer Coleman, made a report to the police on May 25, 2001, at approximately 8:16 p.m. Thereafter, one of the defendant’s neighbors saw Bayonne exit the defendant’s apartment and walk down an alley. The defendant called the police, and then grabbed an aluminum bat with which to confront Bayonnne. In the 12presence of three of her girlfriends, the defendant swung the bat at Bayonne, hitting him in the legs. Her second swing struck a brick building. Bayonne, unarmed, promised to return the defendant’s property and fled to a nearby convenience store.

At the defendant’s request, two acquaintances, Anthony Ayrow and Derrick Adams, forced the victim out of the convenience store to the parking lot, where a crowd of people had gathered. The store’s security camera showed the two men forcibly taking the unarmed victim out of the store; the defendant waited outside the store yelling that she wanted her property back, “I’m going to get you,” and “I’m going to kill you.” Different people attacked the victim, including one of the defendant’s neighbors who hit him with a tree branch, and another man kicked him. Though at trial she denied having done so, the defendant was seen hitting the fallen victim in' the head with the baseball bat she had carried with her. The defendant and her Mends then left the scene. As she placed the baseball bat in the trunk of the car, the defendant told one of her girlMends that she “beat his ass.”

At 8:41 p.m., during the altercation in the parking lot, the owner of the convenience store called the police and reported the fight. Officers arrived promptly, but the fight was over, and the victim was standing in the parking lot with no apparent injuries. Bayonné told the officers that he had not been in a fight. The police questioned the defendant, who also made no mention of the attack on the victim but instead reported that the victim had broken into her house. Not realizing Bayonne had been seriously injured, the police arrested him for burglary of the defendant’s apartment and transported him to the police station.

After viewing the store’s videotapes and interviewing the various witnesses at |sthe store, the police learned the defendant had been involved in the' fight and had used a baseball bat to beat the victim. The defendant consented to a search of her ear’s trunk where the police found the bat.

Meanwhile, the victim was placed in the holding cell at the police station at approximately 8:52 p.m. Within about 15 minutes, the victim became uncommunicative and collapsed. An ambulance was called at 9:10 p.m., and the victim was transported to the hospital. He was semi-conscious upon arrival at 9:58 p.m., or just about one hour and a quarter after the beating he had sustained in the convenience store parking lot, and he was “deeply comatose” when examined by Dr. Thomas Donner, the attending neurosurgeon, shortly thereafter. The- critical nature of the victim’s condition was obvious to Dr. Donner: After an immediate CAT scan revealed that the victim had a large subdural hematoma on the left side of his brain, the doctor rushed him into surgery. The victim survived brain surgery, but remained in a comatose state. For months thereafter he resided in a nursing home, unable to walk, feed himself, talk, or dress himself. He was paralyzed on the right side of his body, and his arms and legs were drawn. The victim eventually died in 2006.

Prosecution commenced in 2001 when the state charged the defendant with attempted first degree murder and second degree kidnapping. Before jury selection, the state amended count one of the bill of information to charge aggravated second degree battery, instead of attempted first degree murder. Following trial in July 2003, a jury returned a verdict of guilty as charged on both counts. The defendant filed motions for new trial and for post-verdict judgment of acquittal. The defendant based her motion for new trial on information supplied by an employee of the Thibodaux Regional Medical-Center, Sheila Marie Williams, who claimed the victim had informed her that he had suffered a second beating at the Thibodaux City Police |4Station. The defendant asserted this evidence established that the severe injury suffered by the victim was a result of a police beating and not from her baseball bat. Following a hearing in September 2003 at which Williams testified, the trial court denied both of the defendant’s post-trial motions. Subsequently, the trial court sentenced the defendant to concurrent terms of 15 years imprisonment at hard labor, and ordered that the first two years be served without benefit of parole, probation, or suspension of sentence.

On appeal, the defendant raised three assignments of error: insufficient evidence as to the charge of second degree kidnapping, erroneous denial of the motion for new trial, and excessive sentence. Based on the jury’s credibility determinations, the appellate court held the evidence was sufficient to convict the defendant as a principal to the second degree kidnapping. A majority of the appellate court panel, however, held that the trial court had erred in denying the motion for new trial. The majority reversed that conviction, along with the aggravated second degree battery conviction, after finding merit in the defendant’s claim that the newly discovered evidence allegedly proved that the victim’s injuries were possibly caused by a beating inflicted by the Thibodaux police and not at the hands of the defendant, who on the stand denied hitting the victim in the head with her bat. State v. Coleman, 04-0758 (La.App. 1st Cir.3/24/05), 918 So.2d 23. On rehearing granted in part, the appellate court majority again reversed both convictions, reasoning that the new evidence “could perhaps add weight to defendant’s credibility as to both charges.” State v. Coleman, 04-0758 (La.App. 1st Cir.5/20/05), 918 So.2d 23, 40 (on reh’g).

We granted the state’s application to examine the correctness of the appellate Iscourt’s ruling reversing the convictions and sentences. State v. Coleman, 05-K-1617 (La.1/12/07), 948 So.2d 140.

DISCUSSION

Under La.Code Crim. Proc. art. 851(3), a court “shall grant a new trial whenever ... [n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.” State v. Knapper, 555 So.2d 1335, 1339 (La.1990). Thus, a new trial shall be granted based on Article 851(3) when: (1) new evidence was discovered after trial; (2) the new evidence is material; (3) the failure to discover the evidence was not due to a lack of diligence on the part of the defense; and (4) had the evidence been introduced, the verdict or judgment of guilty probably would have been changed. See State v. Cavalier, 96-3052, 97-0103, p. 3 (La.10/31/97), 701 So.2d 949, 951; State v. Hammons, 597 So.2d 990, 994 (La.1992); Knapper, 555 So.2d at 1339.

A ruling on a motion for a new trial rests within the sound discretion of the trial judge. State v. Quimby, 419 So.2d 951, 960 (La.1982). In State v. Talbot, 408 So.2d 861 (La.1980), we explained the trial judge’s obligation as follows:

The scope of the trial judge’s duty toward the motion for a new trial based upon the new evidence must be kept in mind. It was not for him to determine the guilt of [another alleged suspect] or the innocence of [the defendant]; it was not for him to weigh the new evidence as though he were a jury, determining what is true and what is false. The judge’s duty was the very narrow one of ascertaining whether there was new material fit for a new jury’s judgment. If so, will honest minds, capable of dealing with evidence, probably reach a different conclusion, because of the new evidence, from that of the first jury? Do the new facts raise debatable issues? Will another jury, conscious of its oath and conscientiously obedient to it, probably reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of evidence recently discovered and not adducible by the defense at the time of the original trial?

Talbot, 408 So.2d at 885.

More recently, in State v. Watts, 00-0602 (La.1/14/03), 835 So.2d 441, we quoted the above passage with approval and added:

The test is objective in that the trial judge does not sit as the ultimate arbiter of the resolution of the case once the new evidence is considered, that is, the trial court does not weigh the evidence. The role of the trial court is to review the evidence constituting the State’s case, not to determine the sufficiency of the evidence, but to evaluate the effect of the newly discovered evidence.

Watts, 00-0602, p. 7, 835 So.2d at 447 (footnote omitted) (citing State v. Hammons, 597 So.2d at 998).

The state conceded that Williams’s testimony was newly discovered evidence. The trial judge agreed and further noted that the failure to discover hospital employee Williams’s connection to the case was not attributable to any lack of diligence on the part of defendant. No party disputes that finding. Accordingly, the issues before this court are whether the newly discovered evidence is fit for the jury’s consideration in a new trial, whether the evidence is material, and whether introduction of this evidence at trial would have probably resulted in a different verdict.

The state argues the appellate court erred when it found that the newly discovered evidence had a probability of rendering a different verdict if presented to the jury, as the newly discovered evidence constitutes hearsay; the evidence appears vague, unreliable, and not material; and, even if admissible and material, the evidence would not have changed the outcome of the jury’s guilty verdict. Further, the state contends Williams’s testimony regarding whether the victim had undergone surgery at the time of her interview and whether he was conscious during her interview was contrary to the testimony of the victim’s neurosurgeon, Dr. Donner, who testified that the victim was rushed into surgery very soon after he arrived at the hospital and that the victim was deeply comatose at that time and remained consistently comatose | ^thereafter.

The defendant counters that the new evidence is admissible because it is not hearsay, but is instead part of the “res gestae” of the offense, comparable to the statement the victim made to police when he was found in the parking lot. The defendant also argues that the evidence, if hearsay, is admissible under an exception to the rule barring hearsay evidence, namely, as a statement in contemplation of death, as a present sense impression or excited utterance, as a statement of mind or physical condition, or as a statement for medical treatment. Additionally, the defendant argues that the statement to Williams possessed indicia of reliability, as it was made to a hospital worker, a disinterested third party. The defendant contends the evidence, even if hearsay, justifies a new trial in the interest of justice, because it will allow an -investigation to discover non-hearsay, corroborative evidence that would create a reasonable doubt. The defendant lastly points out that the testimony contained non-hearsay evidence in that it consisted of the witness’s observations - of the defendant’s physical condition.

For the reasons set forth below, we find the trial court did not abuse its discretion in denying the motion for new trial. We first turn to the newly discovered evidence in the testimony of Williams.

Williams interviewed the victim in the ICU of Thibodaux Regional Hospital the day after he was admitted for the purpose of obtaining information for Medicaid forms; Specifically, Williams’s job was to complete a “Victim of Crime Report” for the hospital and the state. Williams recalled that the victim was in ICU when she conducted the interview, and she described his physical condition as follows;

A: He had a lot of bruises and abrasions. Uh, when I saw him, he hadn’t been quite cleaned up yet so there was a lot of blood stains and blood ... [ajround the head. In his face, around his eyes. No major trauma to the back that I could see. It was in the facial part because it was swelling. |sHe was starting to swell when I met him.

According to Williams, the blood around Bayonne’s lips, jaw, neck and facial areas indicated simply that “he hadn’t, been cleaned,” because he “had never undergone surgery to [her] knowledge.” During the approximate one to two hours that Williams spent with the victim, she described him as “awake, incoherent, in and ou[t] of consciousness.” Williams indicated that she had to lean closer to understand the victim’s mumbling. Despite the victim’s fading “in and out” of consciousness, Williams was able to ascertain that “he had been beaten twice,” relating in the following colloquy;

A: ... And that time I asked him and he kept saying, ‘the police, the police, the police.’ And I kept saying, ‘Why are [you] saying that? What happened to you with the police.’ * * *
Q: Did he describe the beating from the police?
A: Not in detail. He just kept saying the same thing over and over and over. Just, ‘The police. The police, the police.[’]

Williams conceded that the victim’s invocation of the word police was not in response to any particular question she had asked, although she volunteered that she “was trying to find out from him who had beaten him.”

In a critical portion of her testimony, heavily emphasized-by, the appellate court majority in both opinions, Williams recalled that:

A: All he was saying was the police and because he kept saying the same thing over and over then I asked him, ‘Mr. Baion, were you beaten by the police?’ And I asked him did he understand that-I asked if he understood what I was saying blink his eyes or say yes. Q: And what did he do?
A; He said, ‘Yes.’
Q: Did he blink his eyes too?
A: He did that too.

10On cross-examination, the state exposed the discrepancy, with Williams’s time line:,

Q: If Dr. Donner had testified that Mr. Baion had brain surgery the night he was brought within or a fairly short period of time after he was brought in, would you tend to .think that maybe your impression was incorrect? That he had not [had surgery] when you saw him?
A: I wouldn’t know ma’am. I read his records. I don’t recollect what I read that day.
Q: And my question to you is, if you were advised that Doctor Thomas Donner testified that he was the neurosurgeon who did surgery on Mr. Baion within an hour to two hours after he was brought in to the hospital, would you have any reason to dispute Doctor Donner’s testimony?
A: No.
Q: Let me ask you this, Ms. Williams. If Dr. Donner testified that Mr. Bion’s condition was [deteriorating] from the time that he had this head injury, that it was a massive head injury and that his condition was [deteriorating] and he would have died without surgery and his condition never improved and he can’t talk, are you just saying Dr. Donner’s wrong?
A: No, ma’am.... He only talked to me the first time I saw him and that was it. Never again.

Williams assessed the victim’s state as “in and out” of consciousness based on her observations that he would “talk and then he would quit talking.” She assumed that he was on medication because of “all the machines on him.” Williams admitted that the victim was not able to give her much of the information that she sought as to his financial status or answer any of her questions “other than his name” and repeating the word “police.”

The victim’s mother, Mary Thomas, also testified, and her testimony diverged with Williams’s on the issue of whether the victim could speak. Ms. Thomas testified that she went to the hospital on the night following her son’s attack, arriving after he |10had undergone surgery. She stated that she arrived at the hospital at about 7:30 p.m. and that her son was in a deep coma, breathing with the assistance of a machine. According to the victim’s mother, her son was unable to speak from the time she first saw him at the hospital to the time he was discharged.

The police video, introduced at trial, shows the victim arriving at the police station and being booked. No sign of injury is apparent, and nowhere on the video is there any evidence whatsoever of the police striking the victim, who in one moment went from standing at the booking desk to putting his head down and then slumping over moaning. The police officers are heard asking, “Frank, Frank, what’s the matter. Are you okay. Do you want some water.” When no response came from the victim, the police called EMT’s. The video shows the paramedics lifting the victim onto the stretcher for transport by ambulance to the hospital. In contrast to Williams’s testimony, there are no bloody facial features, bruising or swelling revealed on the victim’s face on the tape.

Williams’s lay assessment that the victim had not yet undergone surgery when she interviewed him and was coherent at times during that interview does not comport with Dr. Donner’s testimony that the victim was rushed into surgery shortly after his arrival at the hospital and remained comatose thereafter. Dr. Donner, whose credibility has not been questioned, testified that “at the time [Bayonne] came to the emergency room I was trying to get him to the operating room so fast I didn’t pay a lot of attention to [assessing the number of blows the victim may have incurred to the head].” According to the doctor, “our rationale at that point was just to try to get him into the operating room as fast as we could to try to save his life.” Dr. Donner further indicated that by the time he first saw the victim, he was already “deeply comatose.” Dr. Donner also testified that he saw the victim after surgery and throughout his Inhospitalization at Thibodaux Regional Medical Center and assessed him as consistently comatose.

The trial court denied the motion for new trial, evaluating the testimony offered by Williams as follows:

First of all, Ms. Williams testimony is somewhat incredible here today. Obviously from the medical evidence, if the records and Dr. Donner’s testimony is to be believed, Ms. Williams saw Mr. Baion before he had surgery or she saw Mr. Baion after he had surgery and doesn’t really recall what she saw that his physical appearance was post surgical. Either one of those two scenarios, her testimony is somewhat incredible.
I think her testimony is also confusing, in the sense that, she said he was in and out. That he was incoherent but that he was in and out. Now I don’t know what that means, if she slips in to ask him a question when he’s apparently in, how does she know when he goes out. I don’t know.
If she testified-if this witness said in front of the jury everything that she said here in this courtroom today and the other witnesses gave the same testimony, I would have to conclude that a reasonable fact finder would have to exclude her testimony as being so far outweighed by the other evidence that it would be incredible for me to say here today that it would likely produce a different verdict.

Finally, the judge opined that even if he were to grant the motion for new trial, he could not imagine Williams’s testimony in which she recalled the victim’s statements to her would ever overcome a hearsay objection.

The admissibility at a new trial of the newly discovered evidence is a factor in determining its “fitness” for consideration by a jury at a second trial, and it should be addressed before a conviction is reversed and a new trial ordered. See State v. Watts, 00-0602 at 12-13, 835 So.2d at 452. While the trial court did not make a specific finding as to the hearsay nature of Williams’s testimony at the conclusion of the hearing, its remarks clearly suggested that admissibility would likely be an insurmountable obstacle had the evidence been offered for trial. Yet, because the trial court found the evidence would not result in a different verdict if presented to another jury, it was not required to decide the admissibility of that evidence at a subsequent trial. Cf. State v. Watts, 00-0602 at 12-13, 835 So.2d at 452.

At any rate, the defense contends the victim’s statements to Williams do not constitute hearsay, or should be admissible under various exceptions to the hearsay rule. Hearsay is defined by La.Code Evid. art. 801(C) as a “statement, other than the one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted” and is inadmissible except as provided by law. La.Code Evid. art. 802. Because the defendant seeks to introduce the out-of-court statements to prove that the police rather than the defendant possibly caused the victim’s injury, Williams’s testimony as to what the victim had allegedly communicated to her, either verbally or non-verbally, about the police beating him certainly constitutes hearsay evidence.

Furthermore, although the defendant asserts that a variety of hearsay exceptions would permit introduction of Williams’s testimony to a jury, that argument falters at the first hurdle. Williams freely conceded that the victim never stated directly that the police beat him. Although a statement for purposes of La. Code Evid. art. 801(A)(1) and (2) may include nonverbal conduct “intended ... as an assertion,” Williams’s testimony left in-solvably ambiguous, apart from her own opinion of what the victim may have meant, whether the victim’s statement, “Yes,” and the blinking of his eyes meant, ‘Yes, the police beat me,” or “Yes, I understand what you are | ^saying.” Accordingly, even assuming that the victim repeatedly uttered “the police” in Williams’s presence, her opinion as to what he meant in response to her questions would not be admissible under any exception to the hearsay rule. Therefore, the trial court was correct in ruling that the evidence was not fit to be considered by a second jury.

At any rate, even if the testimony could have been admitted over the state’s inevitable hearsay objection, we find the trial court clearly did not abuse its broad discretion in denying the motion for new trial on the basis that, ultimately, Williams’s testimony would probably not change the result at a second trial. In finding otherwise, the appellate court majority took a skewed view of Dr. Donner’s testimony. While stating that ordinarily a person with the kind of severe head injury experienced by the victim would quickly manifest symptoms of an impending neurological crisis, Dr. Donner also testified that it is “actually not surprising when people show up with sizable subdural he-matomas in the emergency room and little in the way of acute complaints before they appear.” Given the size of the hematoma that formed on the victim’s brain, Dr. Donner would not give “it more than an hour or two before, you know, he became symptomatic.” In the interim, the victim would have experienced “an evolution of this venous bleeding which ... can occur ... sort of at a slow to deliberate rate until people start to become symptomatic.” Thus, the time line offered by the state of the incident from its inception in the store parking lot to the victim’s collapse at the station house, or just about an hour and a quarter, falls within the “hour or two” period of time Dr. Donner gave for the “unusual” but not rare case in which evolutionary bleeding within the brain manifests in the onset of symptoms leading to a deep coma after the initial injury and tearing of a blood vessel.

Thus, contrary to the appellate court majority’s reasoning, in light of the 114entirety of Dr. Donner’s testimony, the trial court had a reasonable basis for concluding that Williams’s account of the alleged statements, verbal or non-verbal, of a fitfully conscious victim sometime after the emergency room admitted him in a “deeply comatose” state, did not constitute material evidence that would have resulted in a different verdict had it been presented to the jury. The state’s theory of the case was that the defendant took the law into her own hands rather than wait for police, struck the victim with her bat, chased him to the convenience store, had him forcibly removed from the store, and, along with an angry mob incited by the defendant, began to beat the victim, striking him in the head with her bat, thereby causing a severe injury to his brain. The trial court’s conclusion that the'verdicts of guilt on both counts would not have changed on the basis of Williams’s testimony was reasonable. At a subsequent trial, jurors could do no more than speculate that the victim tried to tell Williams that the police had beaten him in addition to the beating he received at the hands of the defendant. The evidence introduced by the state, including the videotape of the booking which showed the victim’s actual collapse, was entirely consistent with the state’s theory of the case, • as jurors necessarily found when they returned the verdicts of guilty on both counts. The defendant denied striking the victim in the head with her bat in the parking lot of the store, though witnesses testified otherwise. The case, as the appellate court noted, turned on the credibility of the defendant and the state’s witnesses. Williams’s testimony, when presented to “honest minds capable of dealing with evidence,” would not have reasonably tipped that credibility decision in favor of the defendant. The record thus establishes the trial court properly evaluated the effect of the newly discovered evidence on the record evidence constituting the state’s case and reasonably concluded that the outcome of a guilty verdict would not have been different.

J^For these reasons, we conclude the appellate court, majority erred in finding the trial court abused its discretion in denying the defendant’s motion for a new trial based on newly discovered evidence. Accordingly, we vacate the appellate court’s decision, which reversed the defendant’s convictions for aggravated second degree battery and second degree kidnapping, and we remand the ease to the court of appeal for consideration of the defendant’s remaining assignment of error.

DECREE

DECISION VACATED AND CASE REMANDED TO THE COURT OF APPEAL.

JOHNSON, J., concurs.

       Retired Judge Fred C. Sexton sitting ad hoc for Associate Justice John L. Weimer, re-cused.

      . The victim’s surname is spelled variously in the record as "Baion,” “Bion,” and "Bayonne.” This opinion adopts the spelling also adopted by the appellate court opinion, "Bayonne.”

      . Ayrow and Adams pleaded guilty to simple kidnapping and were sentenced, respectively, to four and three years imprisonment at hard labor.

      . Latasha Green pleaded guilty to simple battery.

      . The appellate court pretermitted its review of the defendant's third assignment of error in which she claimed the court imposed an excessive sentence. Coleman, 04-0758 at 16, 918 So.2d at 32.

      . At the outset of the hearing on the motion for new trial, the state objected to the hearsay nature of the testimony that the defense was anticipating presenting through its newly-discovered witness, Williams, the gist of which would be to repeat what the victim stated to Williams, namely that he was beaten by Thi-bodaux police officers. The state further objected that no exception under La.Code Evid. arts. 803 and 804 applied. To avoid unnecessary delay, the judge permitted the hearing to go forward and indicated that he would address the evidentiary (hearsay) issue at the time he ruled on the motion for new trial.


author:
KIMBALL, J.
     JOHNSON, J.,

text:
    In re Justice of the Peace Roger ADAMS, Sr.
    No. 2007-O-426.
    Supreme Court of Louisiana.
    June 29, 2007.

      Office of Special Counsel, Steven Robert Scheckman, Special Counsel, Bret Edward Emmanuel, Robert E. McKnight, Jr., Assistant Special Counsel, for applicant.
    Justice of the Peace Roger Adams, Sr., for respondent.
    Nancy E. Rix, Commission Counsel.
   KIMBALL, J.

| ,This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana (the Judiciary Commission) that Justice of the Peace Roger Adams, Sr. of Ward 7, Parish of Avoyelles, State of Louisiana, be suspended without pay for five days, fully deferred, subject to a one-year period of probation, and be ordered to reimburse and pay the Judiciary Commission the amount of $52.50 in costs. After a thorough review of the record, we find Justice of the Peace Adams’ conduct violated Canons 2 A and 2 B of the Code of Judicial Conduct. Accordingly, we order Justice of the Peace Adams be suspended without pay for fifteen days and ordered to reimburse and pay the Judiciary Commission the amount of $52.50 in costs.

FACTS AND PROCEDURAL HISTORY

Justice of the Peace Adams was first elected to the Justice of the Peace Court for the Parish of Avoyelles in 2008 and has served in this position continuously since then. On March 6, 2003, Justice of the Peace Adams issued warrants for the arrests of Mark Dupont and John Hebert and. set their bond amounts at $50,000 each. He issued the warrants based on an affidavit submitted to him by James Fon-tenot, the IgMayor of Simmesport, which alleged Mr. Dupont and Mr. Hebert had violated La. R.S. 14:326.

Mr. Dupont and Mr. Hebert had attempted to enter a float in the Simmesport Mardi Gras parade. Their float had signs posted on it that were critical of Mayor | ^Fontenot, stating: “Recall Boo” and “No More Boo.” “Boo” is Mayor Fontenot’s nickname. Justice of the Peace Adams’ issuance of the warrant with the $50,000 bond resulted in Mr. Dupont’s and Mr. Hebert’s being arrested and jailed for over twenty-four hours. Mr. Dupont and Mr. Hebert were finally able to obtain their release after they appeared before Judge Mark Jeansonne who reduced the bond amounts to $2,500.

Justice of the Peace Adams’ actions resulted in a newspaper story published in The Town Talk on Sunday, March 16, 2003. The remarks by Justice of the Peace Adams in that article make it clear he set Mr. Dupont’s and Mr. Hebert’s bonds at $50,000 based on incidents other than allegations contained in the charging affidavits of Mayor Fontenot. The remarks indicate Justice of the Peace Adams set Mr. Dupont’s and Mr. Hebert’s bonds as high as he did to retaliate against them for being critical of Mayor Fontenot. The article stated, “Adams agrees with Fonte-not. He set the bail bonds at $50,000 because the arrests were ‘not due to just one incident.’ ” It further stated, “The anti-Fontenot forces ‘have plastered signs all over town,’ Adams said, ‘and made obscene remarks about the mayor.’ ”

On September 11, 2003, Mr. Dupont filed a complaint against Justice of the Peace Adams with the Office of Special Counsel. The Office of Special Counsel wrote to Justice of the Peace Adams on September 18, 2003, and asked him to respond to the allegations contained in the complaint. On October 6, 2003, the Office of Special Counsel received a letter from Justice of the Peace Adams with an attached town ordinance relative to the rules for parades. The Judiciary Commission authorized a full investigation on February 13, 2004, and Justice of the Peace Adams was notified of the investigation. On December 12, 2005, the Judiciary Commission filed Formal Charge 0264 concerning Justice of the Peace Adams, alleging he 14violated Canons 2 A and 2 B of the Code of Judicial Conduct. The Judiciary Commission further alleged that respondent engaged in willful misconduct relating to his official duty and engaged in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, all in violation of La. Const, art. V, § 25(C).

On August 29, 2006, Justice of the Peace Adams and the Office of Special Counsel jointly filed a “Statement of Stipulated Uncontested Material Facts, Stipulated Conclusions of Law, and Stipulated Recommendation of Discipline.” In addition to stipulating to the above facts, the parties stipulated Justice of the Peace Adams acted inappropriately when he issued the warrants of arrest for Mr. Dupont and Mr. Hebert and set an unreasonably high bond. In addition, the parties stipulated he violated Canons 2 A and 2 B of the Code of Judicial Conduct. The parties stipulated he violated Canon 2 B because he posted Mr. Dupont’s and Mr. Hebert’s bonds as high as he did to retaliate against them for being critical of Mayor Fontenot. The parties stipulated Justice of the Peace Adams therefore allowed his political relationship to influence his judicial conduct or judgment and lent the prestige of his judicial office to advance the private interest of Mayor Fontenot. Justice of the Peace Adams and the Office of Special Counsel further stipulated he thereby also violated Canon 2 A by failing to “act at all times in a manner so as to promote public confidence in the integrity and impartiality of the judiciary.”

The Judiciary Commission conducted a brief hearing on the Formal Charge on |,January 17, 2007. Justice of the Peace Adams apologized for his actions toward Mr. Dupont and Mr. Hebert and pledged he would not repeat such conduct in the future.

The Judiciary Commission accepted the stipulation that Justice of the Peace Adams violated the Canons 2A and 2B of the Code of Judicial Conduct as charged in the formal charge. The Judiciary Commission also concluded Justice of the Peace Adams violated La. Const, art. V, § 25(C) because his conduct was persistent and public and it was prejudicial to the administration of justice and brought the judicial office into disrepute. Moreover, the Judiciary Commission concluded Justice of the Peace Adams’ conduct was not the result of mere legal error. According to the Judiciary Commission, “Adams’ admission that he acted because he got caught in a political fight and for the purpose of retaliation takes the case outside of a ‘mere error’ analysis.” The Judiciary Commission concluded:

The fact that he relied not only upon the instant offense, but also upon his knowledge or belief as to other bad acts of Mr. Hebert and Mr. Dupont, might have been considered as mere error that did not rise to the level of ethical misconduct, but such an inquiry was rendered unnecessary as the result of his other admissions.

Based on these conclusions, the Judiciary Commission recommended that Justice of the Peace Adams be suspended without pay for five days, fully deferred, subject to a one-year period of probation and that he be ordered to reimburse and pay to the Judiciary Commission the amount of $52.50 in costs.

LAW AND DISCUSSION

This court is vested with exclusive original jurisdiction in judicial disciplinary proceedings by La. Const, art. Y, § 25(C), which provides:

On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would [(¡constitute a felony, or conviction of a felony. On recommendation of the judiciary commission, the supreme court may disqualify a judge from exercising any judicial function, without loss of salary, during pendency of proceedings in the supreme court. On recommendation of the judiciary commission, the supreme court may retire involuntarily a judge for disability that seriously interferes with the performance of his duties and that is or is likely, to become permanent. The supreme court shall make rules implementing this Section and providing for confidentiality and privilege of commission proceedings.

This Court, pursuant to its supervisory authority over all lower courts, adopted the Code of Judicial Conduct, effective January 1,1976, and amended July 8, 1996. The Code is binding on all judges, including justices of the peace. In re Justice of the Peace Cook, 05-783, p. 5 (La.6/29/05), 906 So.2d 420, 424; In re Wilkes, 403 So.2d 35, 40 (La.1981). Violations of the Canons contained therein, without more, may serve as a basis for the-disciplinary action provided for by La. Const, art. V, § 25(C). In re King, 03-1412, p. 18 (La.10/21/03), 857 So.2d 432, 445; In re McInnis, 00-1026, p. 1 n. 2 (La.10/17/00), 769 So.2d 1186, 1188 n. 2. Furthermore, a justice of the peace is governed by the same constitutions and laws that govern all courts and judges of this state, and is bound to apply the law as written- by the legislature and construed by the various courts. In re Justice of the Peace Cook, 05-783 at p. 5, 906 So.2d at 424; In re Wilkes, 403 So.2d at 44. That he is a layman untrained in the law does not relieve him of his responsibility to follow the rule of law. Id.

The charge or charges against a judge must be proven by clear and convincing evidence before this court can impose discipline. In re Bowers, 98-1735 at p. 7, 721 So.2d at 880; In re Johnson, 96-1866, p. 7 (La.11/25/96), 683 So.2d 1196, 1199; In re Huckaby, 95-0041, p. 6 (La.5/22/95), 656 So.2d 292, 296. This standard requires that the level of proof supporting the charge or charges against a judge must be more than a mere preponderance of the evidence, but less than beyond a reasonable doubt. In re Bowers, 98-1735 at p. 7, 721 So.2d at 880; In re Quirk, 97-1143 at p. 4, 705 So.2d at 176; In re Huckaby, 95-0041 at p. 6, 656 So.2d at 296.

In the instant case, Justice of the Peace Adams has stipulated to the facts and to the violation of Canons 2 A and 2 B of the Code of Judicial Conduct. As Justice of the Peace Adams concedes violation of the Code, the sole remaining issue for this court is the appropriate discipline for his violations of Canons 2 A and 2 B. In re Ellender, 04-2123, p. 10 (La.12/13/04), 889 So.2d 225, 232.

In determining the appropriate measure of discipline, this court has set forth the following non-exclusive list of factors to consider in imposing discipline on a judge:

(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct; (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge’s official capacity or in his private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his conduct; (g) the length of service on the bench; (h) whether there have been pri- or complaints about this judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his position to satisfy his personal desires.

In re Chaisson, 549 So.2d 259, 266 (La.1989).

In evaluating factors (a) and (b), the Judiciary Commission noted the misconduct affected two individuals who had engaged in one incident. However, the Judiciary Commission pointed out that Justice of the Peace Adams issued warrants for their arrests and then issued excessive bonds, admittedly in retaliation for their political opposition to the Mayor of Sim-mesport. In addition, under factors (c) and (d), the Judiciary Commission noted that Justice of the Peace Adams’ misconduct occurred in performance of his judicial duties. Under factor (i), the Judiciary Commission concluded that the misconduct adversely affected the integrity and respect of the judiciary because he caused two persons to be arrested and incarcerated approximately 24 hours in jail due to the Justice of the Peace’s retaliation for political ^reasons. The Judiciary Commission suggested Justice of the Peace Adams wielded his power irresponsibly, which negatively impacts the public’s confidence in and respect for the judiciary.

The Judiciary Commission concluded that factors (e) through (h) are mitigating Chaisson factors which militate in favor of a lesser sanction. Justice of the Peace Adams entered into a stipulation of facts, evidence and conclusions of law, and acknowledged his behavior. He further testified that he would modify his behavior in the future. Justice of the Peace Adams took the bench in 2003, and the misconduct at issue occurred in March 2003. Therefore, he was a brand new judicial officer when the., criticized conduct occurred. Moreover, there have been no prior complaints regarding Justice of the Peace Adams’ ethical conduct. In evaluating factor (j), the Judiciary Commission stated it believed Justice of the Peace Adams did not intentionally exploit his position to satisfy personal desires. The Judiciary Commission found him credible when he stated he was in the middle of a political dispute and acted for political reasons. Considering these factors, the Judiciary Commission recommended Justice of the Peace Adams be suspended for five days, but with such suspension fully deferred, subject to a one-year period of probation and be ordered to pay $52.50 in costs.

We have reviewed the record and agree with the Judiciary Commission’s factual findings, but find the recommended discipline is not commensurate with the seriousness of the violation. We note that Justice of the Peace Adams’ actions in setting excessive bonds of $50,000 for Mr. Dupont and Mr. Hebert resulted in two members of the public being arrested and incarcerated for over twenty-four hours for a permit violation for a Mardi Gras- parade float. Not only did this misconduct occur in performance of his judicial duties, but the deprivation of liberty suffered by Mr. | sDupont and Mr. Hebert caused a seriously adverse effect on .the integrity and respect of the judiciary.

Recently, in In re Justice of the Peace Alfonso, 07-120, p. 9 (La.5/22/07), 957 So.2d 121, this court suspended a justice of the peace for thirty days for wrongfully issuing a warrant and setting an excessive bond of $50,000, which resulted in a person being arrested and incarcerated overnight without legal cause. Justice of the Peace Alfonso, however, unlike Justice of the Peace Adams, was not new to her position as justice of the peace, having served one complete term prior to this violation. Moreover, Justice of the Peace Alfonso had one prior complaint against her, while Justice of the Peace Adams has had no prior complaints.

In evaluating Justice of the Peace Adams’ motivations, we agree with the Judiciary Commission that his actions fell outside the realm of mere legal error, as he admitted he was caught in a political fight and acted for the purpose of retaliation. While Justice of the Peace Adams acted for political reasons, Justice of the Peace Alfonso exploited her. position to satisfy personal desires. Neither are acceptable motivation for judicial action. We find an appropriate discipline for Justice of the Peace Adams is a suspension of fifteen days without pay. We additionally order Justice of the Peace Adams to reimburse and pay the Judiciary Commission the amount of $52.50 in costs.

DECREE

For the aforementioned reasons, this court finds Justice of the Peace Adams’ conduct violated Canons 2 A and 2 B of the Code of Judicial Conduct. Accordingly, we order Justice of the Peace Adams be suspended without pay for fifteen days and ordered to reimburse and pay the Judiciary Commission the amount of $52.50 in costs.

JOHNSON, J.,

dissents and assigns reasons:

| t There is no rational basis for distinguishing this case from our recent decision in In re Justice of the Peace Alfonso, 07-120 (La,5/22/07), 957 So.2d 121.

In the Alfonso case, Justice of the Peace Alfonso admitted that she issued an arrest warrant without probable cause and set the detainee’s bond at $50,000, which was an unreasonable amount considering the crime which was charged. Similarly, Justice of the Peace Adams stipulated that he issued arrest warrants and set the two defendants’ bonds at $50,000 each, which obviously was excessive when we consider that District Judge Jeansonne reduced the bonds to $2,500 each. In Alfonso, the respondent admitted that she acted in retaliation for personal reasons. Here, the respondent admitted he issued the arrest warrants for political reasons. In both cases, the misconduct occurred in the performance of their judicial duties, and negatively impacted the public’s confidence in and respect for the judiciary. Since the case sub judice is so similar to the Alfonso case, Justice of the Peace Adams should be suspended for thirty days.

       Retired Judge Moon Landrieu, assigned as Associate Justice Ad Hoc for Associate Justice Jeannette Theriot Knoll, recused.

      . La. R.S. 14:326 provides:
      A. Any procession, march, parade or public demonstration of any, kind or for whatever purpose is prohibited by any group, association or organization on any public sidewalk, street, highway, bridge, alley, road or other public passageway of any municipality or unincorporated town or village unless there first has been obtained a permit therefor, and in all cases the person or persons or the group, association or organization to whom the permit is issued shall be liable for all damage to property or persons which may arise out of or in connection with any such procession, march, parade or public demonstration for which a permit is issued.
      B. Application for the permit required herein shall be made to the mayor and governing authority of the municipality or to the governing authority of the parish in which the unincorporated town or village in which the procession, march, parade or public demonstration is located, as the case may be. Permits may be granted by the authority to which application is made, provided, however, that bond in the amount of ten thousand dollars has first been filed with the mayor and municipal governing authority or with parish governing authority, as the case may be, as security for the payment of any damage or injury which may occur as the result of or in connection with such procession, march, parade or public demonstration.
      C. The provisions of this Section shall apply to all groups, associations, or organizations regardless of race, creed, disability, as defined in La. R.S. 51:2232(11), color, or political beliefs of its members; however, nothing contained herein shall apply to a bona fide legitimate labor organization or professional firefighter or police association or to any lawful activity of a labor union permitted by law, nor shall these provisions apply to any procession or parade directly held or sponsored by the governing authority of any municipality or the governing authority of any parish, nor shall these provisions apply to any procession, march, or parade directly held or sponsored by a bona fide organization specifically for the celebration of Mardi Gras and/or directly related prelenten or carnival festivities, school parades or other functions, parish parades or other functions, state, parish, or municipal fairs or other such related activities. However, the provisions of this Section shall apply only to parishes with a population of more than four hundred fifty thousand.
      D. Whoever violates any provision of this Section shall be guilty of a misdemeanor and upon conviction shall, for each offense, be fined not more than one thousand dollars or be imprisoned for not more than six months, or both.

      . Code of Judicial Conduct Canon 2 A states, "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

      . Code of Judicial Conduct Canon 2 B states, in pertinent part, “A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”


text:
    STATE of Louisiana v. Byron L. DAVIS.
    No. 2007-KK-1245.
    Supreme Court of Louisiana.
    June 18, 2007.
   In re Davis, Byron L.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 02-5841; to the Court of Appeal, Fifth Circuit, No. 07-K-406.

Denied.


text:
    STATE of Louisiana v. William PENDER.
    No. 2007-OK-1266.
    Supreme Court of Louisiana.
    June 18, 2007.
   In re Pender, William; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. G, No. 21311; to the Court of Appeal, First Circuit, No. 2007 KW 0748.

Denied.


text:
    HISTORIC RESTORATION, INCORPORATED as Insured and on Behalf of Additional Plaintiffs 302 Jefferson Street, L.L.C., et al. v. RSUI INDEMNITY COMPANY and, Exxex Insurance Company.
    No. 2007-OC-1289.
    Supreme Court of Louisiana.
    June 20, 2007.
   In re RSUI Indemnity Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 06-4990; to the Court of Appeal, Fourth Circuit, No. 2007-CA-0543.

Denied.


text:
    STATE of Louisiana v. Leon D. FUSSELL.
    No. 2006-K-2595.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lasalle, 28th Judicial District Court Div. 0, No. 69,110; to the Court of Appeal, Third Circuit, No. 06-324.

Granted.


text:
    STATE of Louisiana v. S.J.I.
    No. 2006-OK-2649.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re S.J.I.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. A, No. 04-000977; to the Court of Appeal, Third Circuit, No. 06-1099.

Granted. The judgment of the court of appeal dismissing relator’s appeal and remanding the case to the district court for further proceedings pursuant to State v. Counterman, 475 So.2d 336 (La.1985), is vacated and this case is remanded to the court of appeal to address relator’s assignments of error on the merits. Given the trial court’s granting of relator’s pro se motion for an appeal and its appointment of the Louisiana Appellate Project to represent relator on appeal, and given the state’s failure to complain about any procedural irregularities in the ordering of the out-of-time appeal, dismissal of the present appeal and a remand to the district court to cure any defects under this Court’s Counterman decision would only prolong the delay without serving any useful purpose.

TRAYLOR, J., would deny.


text:
    LAMBETH HOUSE, INC. v. BLITCH-KNEVEL ARCHITECTS, INC., et al.
    No. 2007-CC-1012.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re TIG Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 03-14158; to the Court of Appeal, Fourth Circuit, No. 2007-C-0280.

Granted. The case is remanded to the Court of Appeal, Fourth Circuit to address the merits of application for supervisory writs filed by TIG Insurance Company. The court of appeal is hereby directed to request the parties to supplement the application with any additional exhibits the court may deem necessary to reach a decision on the merits.

KIMBALL, J., would deny.

JOHNSON, J., would deny.

TRAYLOR, J., would deny.


text:
    STATE ex rel. James H. O’BANION, Jr. v. STATE of Louisiana.
    No. 2006-KH-2440.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re O’Banion, James H. Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 116-797; to the Court of Appeal, Fourth Circuit, No(s). 2006-K-0953, 2006-KW-1119.

Writ granted in part; otherwise denied. The St. Bernard Parish Clerk of Court is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const, art. XII, Section 3; R.S. 44:31; R.S. 44:31.1; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537. If the documents have been destroyed, the clerk shall inform relator, and this Court, of this fact. In all other respects, the application is denied.


text:
    Daphne LERAY, Glenn Leray and Elaine Leray v. NISSAN MOTOR CORPORATION IN U.S.A, Nissan Motor Co., Ltd., Jamie Adams, Entergy Louisiana, Inc., and the State of Louisiana, Through the Department of Transportation and Development.
    No. 2007-CC-0713.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Leray, Glenn; Leray, Daphne et ah; Leray, Elaine; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. B, No. 80852; to the Court of Appeal, First Circuit, No. 2006 CW 2479.

Granted in part. The district court’s ruling of November 14, 2006, is amended to provide that plaintiffs may call the jurors at the evidentiary hearing on the motion for new trial. See La. C.E. art. 606(B). In all other respects, the application is denied.

VICTORY, J„ would deny.

KNOLL, J., would deny.


text:
    STATE of Louisiana v. Clifford WRIGHT.
    No. 2000-KP-1294.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Wright, Clifford; — Defendant(s); Applying for Reconsideration of this Court’s action dated December 8, 2000; Parish of Jefferson, 24th Judicial District Court Div. N, No. 95-2042; to the Court of Appeal, Fifth Circuit, No. 00-KH-277.

Reconsideration denied.


text:
    STATE of Louisiana v. Nicholas D. PITREE.
    No. 2006-KO-1897.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Pitree, Nicholas D.; — Defendant; Applying for Reconsideration of this Court’s action dated March 23, 2007, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 8879-04; to the Court of Appeal, Third Circuit, No. 05-1513.

Reconsideration denied.


text:
    STATE of Louisiana v. Nicholas Demond PITREE.
    No. 2006-KO-2138.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Pitree, Nicholas Demond; — Defendant; Applying for Reconsideration of this Court’s action dated March 23, 2007; Parish of Calcasieu, 14th Judicial District Court, Div. E, No. 8879-04; to the Court of Appeal, Third Circuit, No. 05-1513.

Reconsideration denied.


text:
    Mary Evelyn SMITH v. Jamie Dale SMITH.
    No. 2007-CJ-0621.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Smith, Jamie Dale; — Defendant(s); Applying for Reconsideration of this Court’s action dated April 20, 2007; Parish of Ouachita, 4th Judicial District Court Div. A, No. 01-3746; to the Court of Appeal, Second Circuit, No. 41,871-CA.

Reconsideration denied.


text:
    SUCCESSION OF Vernon Ozelma Bower MITCHELL.
    No. 2007-CC-781.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Mitchell, Vernon B.; — Other; Applying for Reconsideration of this Court’s action dated May 4, 2007; Parish of Orleans, Civil District Court Div. H, No. 03-938; to the Court of Appeal, Fourth Circuit, No. 2007-C-0144.

Reconsideration denied.


text:
    STATE of Louisiana v. Bobby Joe STATUM.
    No. 2007-K-0857.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Statum, Bobby Joe; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Beauregard, 36th Judicial District Court Div. A, No. CR-696-2004; to the Court of Appeal, Third Circuit, No. 06-1340.

Not considered. Not timely filed.


text:
    Eugene John TERRY v. Wilma Jane TERRY, Born Jones.
    No. 2007-C-0928.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Terry, Eugene John; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. C-461-04; to the Court of Appeal, Third Circuit, No. CA 06-1406.

Not considered. Not timely filed.


text:
    Leonard A. ROBINSON, et al. v. HANCOCK BANK, et al.
    No. 2007-CC-0993.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Robinson, Leonard A. et al.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 523-798; to the Court of Appeal, First Circuit, No. 2006-CW-1736.

Not considered. Not timely filed.


text:
    Robert BAUER, et al. v. DEAN MORRIS, L.L.P., et al.
    No. 2007-CC-1256.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Dean Morris L.L.P. et al; Dean, George Jr.; Courteau, Candace A.; Morris, John C. Ill; Heck, Charles H. Jr.;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2005-2173; to the Court of Appeal, Fourth Circuit, No. 2007-C-0323.

Stay denied. Writ denied.


text:
    STATE ex rel. Brian K. CHISHOLM v. STATE of Louisiana.
    No. 2006-KH-2261.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Chisholm, Brian K.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 03-3889; to the Court of Appeal, Fifth Circuit, No(s). 05-KH-392, 06-KH-283, 06-KH-355.

Denied.


text:
    STATE of Louisiana v. James TYLER, III.
    No. 2006-KP-2339.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Tyler, James III; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 175,282.

Denied.


text:
    STATE ex rel. Ezra RICHARDSON v. STATE of Louisiana.
    No. 2006-KH-2397.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Richardson, Ezra; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 83461; to the Court of Appeal, First Circuit, No. 2006 KW 1201.

Denied.


text:
    STATE ex rel. Elvis L. WASHINGTON v. STATE of Louisiana.
    No. 2006-KH-2398.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Washington, Elvis L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. C, No. 61,345; to the Court of Appeal, Second Circuit, No. 41,-707-KH.

Denied.


text:
    STATE ex rel. Rodney Wayne MACON v. STATE of Louisiana.
    No. 2006-KH-2400.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Macon, Rodney Wayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 112-549.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Angela JONES v. STATE of Louisiana.
    No. 2006-KH-2401.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Jones, Angela; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. H, No. 96-1674-F; to the Court of Appeal, Second Circuit, No. 41698-KH.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Raymond FORMAN v. STATE of Louisiana.
    No. 2006-KH-2402.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Forman, Raymond; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 391-572; to the Court of Appeal, Fourth Circuit, No. 2006-K-0681.

Denied.


text:
    STATE ex rel. James SELDERS v. STATE of Louisiana.
    No. 2006-KH-2404.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Selders, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 08-03-735; to the Court of Appeal, First Circuit, No. 2006 KW 1375.

Denied.


text:
    STATE ex rel. Charles R. SNOW v. STATE of Louisiana.
    No. 2006-KH-2405.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Snow, Charles R.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 92,611; to the Court of Appeal, Second Circuit, No. 41630-KH.

Denied.


text:
    STATE ex rel. Charles PLAISANCE v. STATE of Louisiana.
    No. 2006-KH-2413.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Plaisance, Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 03-7590; to the Court of Appeal, Fifth Circuit, No. 06-KH-527.

Denied.


text:
    STATE ex rel. Joseph D. SAMPY, Jr. v. STATE of Louisiana.
    No. 2006-KH-2430.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Sampy, Joseph D. Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. C, Nos. 03-1861, 03-1616; to the Court of Appeal, Third Circuit, No(s). 05 01479-KA, KA 05-1480.

Denied.


text:
    STATE ex rel. Donald W. JACKSON v. STATE of Louisiana.
    No. 2006-KH-2431.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Jackson, Donald W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 01-3892; to the Court of Appeal, Fifth Circuit, No. 06-KH-505.

Denied.


text:
    STATE ex rel. Harold AUGUSTINE, Jr. v. STATE of Louisiana.
    No. 2006-KH-2435.
    Supreme Court of Louisiana.
    June 22, 2007.
   i In re Augustine, Harold Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 192039; to the Court of Appeal, First Circuit, No. 2006 KW 0265.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Karston KEELEN v. STATE of Louisiana.
    No. 2006-KH-2436.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Keelen, Karston; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 02-96-476; to the Court of Appeal, First Circuit, No. 2005 KW 2397.

Denied.


text:
    STATE ex rel. Clayton PERKINS v. STATE of Louisiana.
    No. 2006-KH-2442.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Perkins, Clayton; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 384549; to the Court of Appeal, First Circuit, No. 2006 KW 1344.

Denied.


text:
    STATE ex rel. Jason PITTS v. STATE of Louisiana.
    No. 2006-KH-2445.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Pitts, Jason; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 01-4215; to the Court of Appeal, Fifth Circuit, No. 06-KH-327.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Joe STEPHENS v. STATE of Louisiana.
    No. 2006-KH-2446.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Stephens, Joe; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 126,696; to the Court of Appeal, Second Circuit, No. 41,-750-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Foster TAYLOR v. STATE of Louisiana.
    No. 2006-KH-2447.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Taylor, Foster; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 01-2242; to the Court of Appeal, Fifth Circuit, No. 06-KH-228.

Denied.


text:
    STATE ex rel. Rodney Lashun GAY v. STATE of Louisiana.
    No. 2006-KH-2448.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Gay, Rodney Lashun; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 01-F1357; to the Court of Appeal, Second Circuit, No. 41,-696-KH.

Denied.


text:
    STATE ex rel. Thomas James RASCOE v. STATE of Louisiana.
    No. 2006-KH-2449.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Rascoe, Thomas James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. D, Nos. 68,713, 68,714, 68,715, 67,711; to the Court of Appeal, Second Circuit, No(s). 41667-KA, 41669-KA, 41668-KA, 41558-KH.

Denied.


text:
    STATE ex rel. Joe STEPHENS v. STATE of Louisiana.
    No. 2006-KH-2450.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Stephens, Joe; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 126,696; to the Court of Appeal, Second Circuit, No. 41793-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Larry A. BROYARD v. STATE of Louisiana.
    No. 2006-KH-2462.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Broyard, Larry A.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 349-922; to the Court of Appeal, Fourth Circuit, No. 2006-K-1065.

Denied. Untimely, not cognizable, and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; cf. La. C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Robert SKIPPER v. STATE of Louisiana.
    No. 2006-KH-2463.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Skipper, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. A, No. 19-644.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. James C. JOHNSTON v. STATE of Louisiana.
    No. 2006-KH-2464.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Johnston, James C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 45,854-A.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Terry JONES v. STATE of Louisiana.
    No. 2006-KH-2465.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Jones, Terry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 379-119; to the Court of Appeal, Fourth Circuit, No. 2006-K-1063.

Denied.


text:
    STATE of Louisiana v. Angelo MITCHELL.
    No. 2006-K-2752.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Mitchell, Angelo; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 6-03-620; to the Court of Appeal, First Circuit, No. 2006 KA 0417.

Denied.


text:
    STATE of Louisiana v. Richard B. WOODS.
    No. 2006-KO-2768.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Woods, Richard Ben; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. G, No. 04F2043; to the Court of Appeal, Second Circuit, No. 41,-420-KA.

Denied.


text:
    STATE of Louisiana v. Johnny Elron RUFFINS, III.
    No. 2006-K-2779.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Ruffins, Johnny Elron III; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 235,147; to the Court of Appeal, Second Circuit, No. 41,033-KA.

Denied.


text:
    STATE of Louisiana v. Richard B. WOODS.
    No. 2006-K-2781.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Woods, Richard Ben; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. G, No. 04F2043; to the Court of Appeal, Second Circuit, No. 41,-420-KA.

Denied.


text:
    STATE of Louisiana v. Michael Leon SHOEMAKER.
    No. 2006-K-2806.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Shoemaker, Michael Leon; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. D, No. 17990; to the Court of Appeal, First Circuit, No. 2006 KA 0505.

Denied.


text:
    Dr. Judith FISHBEIN, M.D., et al. v. STATE of Louisiana Through LSU HEALTH SCIENCES CENTER, et al.
    No. 2007-C-0730.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Louisiana State of et al.; Louisiana State University Bd. of Supervisors; Agricultural & Mechanical College; — Defendant/s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 475,105; to the Court of Appeal, First Circuit, No. 2006 CA 0549.

Denied.


text:
    BUCKTOWN MARINA, L.L.C., and Julius F. Sonny Eirich, Jr. v. The PARISH OF JEFFERSON; Aaron F. Broussard, in his Capacity as Immediate Past Chairman of the Jefferson Parish Council and in his Capacity as Current Jefferson Parish President; and JEDCO Development Corporation a/k/a the Jefferson Parish Economic Development Commission (JEDCO).
    No. 2007-CC-0743.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Jefferson Parish of et al.; Brous-sard, Aaron F.; Jefferson Parish Economic Development and Port District; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 607-661; to the Court of Appeal, Fifth Circuit, No. 06-C-976.

Denied.

TRAYLOR, J., recused.

KIMBALL, J., would grant.

WEIMER, J., would grant.


text:
    Gertrude GARRETT, Ella Russell, Alisa Chanel, Leroy Garrett, Sandra Penn, Mr. & Mrs. Cleveland Bedford, et al. v. Richard C. BLANTON, Driver Virginia Chemical Company of Portsmouth, Virginia.
    No. 2007-CC-0826.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Travelers Indemnity Co. of Illinois; Travelers Property Casualty Co. of America f/k/a; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 89-14666-D; to the Court of Appeal, First Circuit, No. 2007 CW 0085.

Denied.


text:
    Jerry A. WADDLES v. Danny R. LACOUR, Sr., et al.
    No. 2007-C-0827.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Waddles, Jerry A.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. A, No. 206301; to the Court of Appeal, Third Circuit, No. CA 06-1245.

Denied.

JOHNSON, J., would grant.

KNOLL, J., would grant..


text:
    ALLIED SYSTEMS LIMITED (L.P.) a/k/a Allied Automotive Group v. STATE of Louisiana, DEPARTMENT OF LABOR, OFFICE OF WORKERS’ COMPENSATION ADMINISTRATION, Second Injury Fund.
    No. 2007-C-0828.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Allied Systems Limited (L.P.) a/k/a; Allied Automotive Group; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 524,846; to the Court of Appeal, First Circuit, No. 2006 CA 920.

Denied.

JOHNSON, J., would grant.

VICTORY, J., would grant.


text:
    HISTORIC RESTORATION, INCORPORATED, as Insured and on Behalf of Additional Plaintiffs 302 Jefferson Street, L.L.C., 800 Canal Street Limited Partnership, 800 Iberville Street Limited Partnership, et al. v. RSUI INDEMNITY COMPANY.
    No. 2007-C-0840.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re RSUI Indemnity Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 06-4990; to the Court of Appeal, Fourth Circuit, No. 2006-CA-1178.

Denied.

VICTORY, J., would grant.


text:
    Gene SMART, et al. v. GOLD, WEEMS, BRUSER, SUES & RUNDELL, et al.
    No. 2007-C-0854.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Smart, Gene et al.; Babin, Priscilla; — Plaintiffs); Applying for Writ of Cer-tiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 223,539-F; to the Court of Appeal, Third Circuit, No. 06-1414.

Denied.


text:
    Phillisa JACKSON, etc. v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS, et al.
    No. 2007-C-0862.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Jackson, Jarion; Hughes, Shawan-na; Jackson, Deandred; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 2001-2752-B; to the Court of Appeal, Third Circuit, No. 06-933.

Denied.

JOHNSON, J., would grant.


text:
    Phillisa JACKSON, etc. v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS, et al.
    No. 2007-C-0980.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Scottsdale Insurance Co.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 2001-2752-B; to the Court of Appeal, Third Circuit, No. 06-933.

Denied.


text:
    Laverne PENA and Frank Pena v. DELCHAMPS, INC.
    No. 2007-C-0875.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re National Union Fire Insurance Co. of Pittsburgh PA; Delchamps Inc.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 99-12101; to the Court of Appeal, First Circuit, No. 2006 CA 0364.

Denied.


text:
    Jerry A. WADDLES v. Danny R. LACOUR, Sr., et al.
    No. 2007-C-0882.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Posey, Fern; Chicago Insurance Company; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. A, No. 206301; to the Court of Appeal, Third Circuit, No. CA 06-1245.

Denied.

JOHNSON, J., would grant.

KNOLL, J., would grant.


text:
    Wonderful RUFFIN on Behalf of Tyhanna GALENTINE v. Edward JONES, Esq.
    No. 2007-CC-0915.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Jones, Edward Bernard; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. G, No. 108491; to the Court of Appeal, Third Circuit, No. CW 07-00271.

Denied.

KNOLL, J., would grant.


text:
    Debra A. WARDEN v. Amy Leblanc RICHOUX, Gerald A. Richoux, II, State Farm Insurance Company, Allstate Insurance Company and the State of Louisiana Through the Department of Transportation and Development.
    No. 2007-C-0918.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Louisiana State of; Transportation & Devi. Dept, of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 578-136; to the Court of Appeal, Fifth Circuit, No. 06-CA-702.

Denied.


text:
    Leonard DUNBAR v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2007-C-0919.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Dunbar, Leonard; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 533,169; to the Court of Appeal, First Circuit, No. 2006 CA 0848.

Denied.


text:
    Sherry WATTERS, et al. v. DEPARTMENT OF SOCIAL SERVICES, et al.
    No. 2007-CC-0932.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Louisiana State of; Social Services Dept, of et al.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, Nos. 2001-17775, 01-18355, 02-14043; to the Court of Appeal, Fourth Circuit, No. 2007-C-0168.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Charles Marion SAMPOGNARO v. Patricia Clotile Wilson SAMPOGNARO.
    No. 2007-C-0937.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Sampognaro, Patricia Clotile Wilson; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Oua-chita, 4th Judicial District Court Div. C, No. 03-5142; to the Court of Appeal, Second Circuit, No. 41,664-CA.

Denied.


text:
    Pamela ROGERS v. Jimmy GRAVES Jr. and Allstate Insurance Company.
    No. 2007-C-0939.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Allstate Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 496,294; to the Court of Appeal, First Circuit, No. 2006 CA 0648.

Denied.

VICTORY, J., would grant.


text:
    BUCKTOWN MARINA, L.L.C., and Julius F. Sonny Eirich, Jr. v. The PARISH OF JEFFERSON; Aaron F. Broussard, in His Capacity as Immediate Past Chairman of the Jefferson Parish Council and in His Capacity as Current Jefferson Parish President; and Jedco Development Corporation a/k/a the Jefferson Parish Economic Development Commission (JEDCO).
    No. 2007-CC-0941.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Jefferson Parish of et al.; Brous-sard, Aaron F.; Jefferson Parish Economic Development and Port District; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 607-661; to the Court of Appeal, Fifth Circuit, No. 07-C-215.

Denied.

TRAYLOR, J., recused.

KIMBALL, J., would grant.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Clifton ROBERTSON.
    No. 2006-K-2845.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 368602; to the Court of Appeal, First Circuit, No. 2006 KA 0732.

Denied.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Charles WHITEHEAD.
    No. 2006-K-2847.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Whitehead, Charles; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 3-04-447; to the Court of Appeal, First Circuit, No. 2005 KA 2616.

Denied.


text:
    STATE of Louisiana v. Robert MELANCON.
    No. 2006-KP-3003.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Melancon, Robert; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 264,226; to the Court of Appeal, First Circuit, No. 2006 KW 1520.

Denied.


text:
    STATE of Louisiana v. Jerry CARTER.
    No. 2006-KP-3034.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Carter, Jerry; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 02-5536; to the Court of Appeal, Fifth Circuit, No. 06-KH-787.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Darryl SARTAIN.
    No. 2007-KP-0012.
    Supreme Court of Louisiana.
    June 22, 2007.
   In re Sartain, Darryl; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 373-773; to the Court of Appeal, Fourth Circuit, No. 2006-K-1388.

Denied.

CALOGERO, C.J., recused.