text:
    STATE of Louisiana v. Robert Thomas SMITH.
    No. KA06-722.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 2, 2006.

      Mary Constance Hanes, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant, Robert Thomas Smith.
    James C. Downs, District Attorney, Alexandria, Louisiana, for State of Louisiana.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

11 Defendant was convicted by a jury on October 20, 2005 of second degree murder, a violation of La.R.S. 14:30.1. He was sentenced on October 26, 2005 to life imprisonment without the benefit of parole, probation, or suspension of sentence. Defendant did not file a motion to reconsider the sentence.

On February 22, 2006, Defendant filed a motion titled “Motion to Appeal,” which was granted on March 1, 2006. Appellate counsel was assigned on March 17, 2006, and Defendant’s appeal was lodged under docket number 06-722 on June 2, 2006. However, Defendant’s appeal is untimely in that his conviction and sentence became final November 26, 2005, thirty days after the sentence was pronounced. La.Code Crim.P. art. 914. Defendant did not move to appeal the conviction and sentence until almost four months after the conviction and sentence became final.

On June 12, 2006, this court ordered as follows:

The Defendant-Appellant, Robert Thomas Smith, is hereby ordered to show cause, by brief only, on or before July 5, 2006, why the appeal in the above captioned case should not be dismissed as having been untimely perfected. La.Code Crim.P. art. 914.

In compliance with this court’s order, Defendant filed his brief on June 29, 2006. In brief, Defendant acknowledges the motion was untimely. He argues that this court could decline to follow the procedure of State v. King, 05-1543 (La.App. 3 Cir. 3/8/06), 924 So.2d 1282, wherein a defendant must obtain reinstatement of his right to appeal by way of a properly filed application for post-conviction relief requesting an out-of-time appeal, for the sake of judicial economy and the overburdened district court, particularly if the State does not oppose the appeal.

In the alternative, Defendant requested that this court instruct the district court to order the public defender to assist Defendant in amending his motion for appeal [ 2to an application for post-conviction relief, since it was the action of the public defender which caused the problem. However, La.Code Crim.P. art. 930.7 provides that a trial court may appoint counsel for an indigent petitioner only when the petitioner “alleges a claim which, if established, would entitle him to relief.”

A motion for appeal must be made no later than thirty days after either the rendition of the judgment from which the appeal is taken or the ruling on a motion to reconsider the sentence filed pursuant to La.Code Crim.P. art. 881.1. Because Defendant failed to file his motion for appeal within the time provided by La.Code Crim.P. art. 914, his conviction and sentence became final. Therefore, he can no longer obtain an appeal by simply filing a motion. State v. Labiche, 96-433 (La.App. 3 Cir. 7/31/96), 680 So.2d 77. Defendant must first obtain reinstatement of his right to appeal by way of a properly filed application for post-conviction relief. Id.; State v. Dixon, 00-516 (La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475 So.2d 336 (La.1985).

In Dixon, 768 So.2d at 101-102 (footnote omitted), this court stated:

State v. Counterman, 475 So.2d 336 (La.1985) sets forth the procedure which should be followed to obtain the right to file an out-of-time appeal. In Counterman, the defendant was sentenced on February 10, 1983. No appeal was filed within the time period set forth in Article 914. On April 10, 1984, the defendant filed a motion for an out-of-time appeal. The trial court granted the motion without a hearing and without affording the district attorney an opportunity to respond to the motion. The First Circuit Court of Appeal dismissed the appeal “on the basis that the trial court was without authority or jurisdiction to grant an out-of-time appeal on an ex parte motion.” Id. at 338. The defendant filed a motion for out-of-time appeal with the court of appeal, which was denied. The defendant then filed a motion for out-of-time appeal with the supreme court. The supreme court held that the defendant lost his right to obtain an appeal by simply filing a motion for an appeal after the time delays had run — not because the trial court was divested of jurisdiction but “because the conviction and sentence became final when the defendant failed to appeal timely.” Id. (footnote omitted). The supreme court held that the proper procedure for obtaining an 13out-of-time appeal is by filing an application for post conviction relief pursuant to La.Code Crim.P. arts. 924-930.7. In so ruling, the supreme court found several advantages to following this procedure. Primarily, the district attorney would be allowed an opportunity to oppose a request, and the defendant would be afforded an eviden-tiary hearing to prove his allegations.
An out-of-time appeal is appropriately granted when the trial court has determined it is warranted “after due consideration of such factors as the length of the delay in defendant’s attempt to exercise the right and the adverse effect upon the state caused by the delay.” Id. at 340. The supreme court ultimately concluded that the defendant’s motion for an out-of-time appeal filed in the trial court should have been treated as an application for post conviction relief and remanded the case to the trial court for consideration as such. Following Counterman, we find that Defendant’s January 18, 2000 motion for appeal should have been treated by the trial court as an application for post conviction relief requesting an out-of-time appeal. We note that La.Code Crim.P. art. 930.8 now provides that the time delays for filing an application for post conviction relief are applicable to requests for out-of-time appeals, unless an exception is made. Therefore, Defendant shall be permitted an opportunity to amend his motion to comply with the requirements of Articles 924-930.8. By doing so, the State will then be given an opportunity to contest the granting of an appeal.

Defendant’s appeal is hereby dismissed, and this case is remanded to the trial court for further proceedings. Defendant is to be permitted an opportunity to amend his motion for appeal to comply with the requirements of La.Code Crim.P. arts. 924-930.8, and the State is to be given an opportunity to contest the granting of an out-of-time appeal. Moreover, Defendant’s request that we order the trial court to appoint the public defender to assist Defendant in amending his motion for appeal is denied.

APPEAL DISMISSED; REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kevin BROUSSARD.
    No. KA2006-776.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 2, 2006.
    J. Phillip Haney, District Attorney, New Iberia, LA, for Appellee State of Louisiana.
    Anthony Jerome Fontana, Jr., Abbeville, LA, for Appellant Kevin Broussard.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

The judgment at issue herein is not appealable pursuant to La.Code Crim.P. art. 912.1; therefore, the appeal in the above-captioned case is dismissed. Kevin Broussard, Appellant, is hereby permitted to file a proper application for writs in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than thirty days from date of this decision. The Appellant is not required to file a notice of intent to seek writs or obtain an order setting a return date pursuant to Uniform Rules— Courts of Appeal, Rule 4-3, as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory •writ.

Regarding Appellant’s request for a stay, Appellant should apply to the trial court, pursuant to Uniform Rules — Courts of Appeal, Rule 4-4.

APPEAL DISMISSED. APPELLANT ALLOWED THIRTY DAYS FROM DATE OF DECISION TO FILE AN APPLICATION FOR SUPERVISORY WRITS.


author: THIBODEAUX, Chief Judge.

text:
    Sandra Fruge BAZINET v. STANDARD NATIONAL LIFE INSURANCE.
    No. 2006-830.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 2006.
    Adam Gerard Caswell, Eunice, LA, for Plaintifi/Appellee, Sandra Fruge Baziet.
    Thomas Benjamin Delsa, Rabalais Un-land & Lorio, Covington, LA, for Defendant/Appellant, Standard National Life Ins. Co.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

|-i This court issued, sua sponte, a rule ordering the defendant-appellant, Standard National Life Insurance, to show cause, by brief only, why its appeal in this matter should not be dismissed as having been taken from a non-appealable, interlocutory order. On July 21, 2006, this court received Standard National’s response to the rule. For the reasons given herein, we hereby dismiss the appeal.

On March 6, 2006, the trial court held a hearing in this matter at which Standard National moved that, because no evidence showed fault on its part warranting penalties and attorney fees, those claims should be dismissed. The trial court granted the motion. The trial court did not issue any written judgment.

The plaintiff then fíled a motion to reconsider; that motion is construed by this court as a motion for new trial. On April 10, 2006, the trial court signed a judgment granting the plaintiffs motion for reconsideration of its dismissal of the claims for penalties and attorney fees in this workers’ compensation matter. The judgment was signed on April 12, 2006.

On April 19, 2006, Standard National filed a Motion for Suspensive Appeal from the April 12 judgment. The trial court signed an order granting the Motion for Suspensive Appeal on April 28, 2006.

The record in this appeal was lodged with this court on June 29, 2006. This court issued the rule to show cause under consideration herein on this same date. Standard National filed a brief in this court on July 21, 2006.

Because the trial court ordered an amendment to the plaintiffs petition, the judgment challenged here by the defendant is not final, but rather is an | ^interlocutory judgment. La.Code Civ.P. art. 1841. Under La.Code Civ.P. art. 2083, as amended effective January 1, 2006, interlocutory judgments are appealable only when expressly provided by law. Standard National has not asserted and has not shown that any law expressly provides for the appeal of the trial court’s interlocutory judgment.

Accordingly, we dismiss Standard National’s appeal of the judgment dated April 12, 2006 granting the plaintiffs motion to reconsider at Standard National’s cost.

APPEAL DISMISSED.


text:
    STATE of Louisiana, Respondent v. Khristopher OSWALD, Applicant.
    No. 41,737-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 2006.
    Khristopher Oswald, pro se.
    William R. Coenen, Jr., District Attorney, for Respondent.
    Before STEWART, CARAWAY and MOORE, JJ.
   WRIT DENIED.

| because the application filed in the district court was untimely under La. C. Cr. P. art. 930.8, the writ is denied.

The applicant pled guilty to felony Carnal Knowledge of a Juvenile (La. R.S. 14:80) on February 4, 2004 and pursuant to a plea agreement was sentenced to three years at hard labor, suspended, with three years of supervised probation. He alleges that on March 16, 2005 his probation was revoked. On June 19, 2006, more than two years after the finality of the conviction, the applicant made a claim of an illegal sentence, asserting that the plea was invalid because he was not informed by his counsel that he would be ineligible for diminution of sentence under La. R.S. 15:537, which provides in pertinent part:

L§ 537. Sentencing of sexual offenders; serial sexual offenders

A. If a person is convicted of or pleads guilty to, or where adjudication has been deferred or withheld for a violation of R.S. 14:78 (incest), R.S. 14:78.1 (aggravated incest), R.S. 14:80 (felony carnal knowledge of a juvenile), R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.2 (molestation of a juvenile), R.S. 14:89(A)(1) (crime against nature), R.S. 14:89.1 (aggravated crime against nature), R.S. 14:93.5 (sexual battery of the infirm) or any provision of Subpart C of Part II of Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, and is sentenced to imprisonment for a stated number of years or months, the person shall not be eligible for diminution of sentence for good behavior.

This claim is not an illegal sentence claim. It is a post-conviction relief claim asserting the invalidity of the guilty plea, and is subject to the time limitations of La. C. Cr. P. art. 930.8. This court can address the untimeliness of an application on its own motion. State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

There is no indication from the present filing that the applicant asserted the present claim-the invalidity of the guilty plea-during the probation revocation proceedings, to permit him to seek review of that claim as part of the review of the probation revocation proceedings as permitted by the Louisiana Supreme Court in State ex rel. Clavelle v. State, 2002-1244 (La.12/12/03), 861 So.2d 186. The applicant’s time delays under La. C. Cr. P. art. 930.8 have run from his original plea and sentencing (February 4, 2004 plus 30 days for appeal plus 2 years = March 5, 2006). The present application, filed in the district court on June 19, 2006 was untimely under La. C. Cr. P. art. 930.8 and was properly denied by the trial court.

The writ is denied.


author: ISHEE, J.,

text:
    Dennis DOBBS, Appellant. v. STATE of Mississippi, Appellee.
    No. 2004-KA-01638-COA.
    Supreme Court of Mississippi.
    April 11, 2006.
    Rehearing Denied Aug. 15, 2006.

      Jeffrey J. Hosford, attorney for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Dennis Dobbs was convicted in the Clay County Circuit Court of simple assault on a law enforcement officer. He was sentenced as a habitual offender to serve a term of five years in the custody of the Mississippi Department of Corrections. The trial court denied Dobbs’s motion for a new trial, or in the alternative, judgment notwithstanding of the verdict (JNOV). Aggrieved by his conviction and sentence, Dobbs appeals. Finding no error, we affirm.

FACTS

¶ 2. On December 6, 2002, Dobbs was a prisoner on trusty status in the Clay County Jail in West Point. As a prisoner on trusty status, he worked outside the jail picking up garbage for the county sanitation department. When Dobbs returned from work that day, the dispatcher, Beth Luna, believed that he was intoxicated, due to a strong smell of alcohol. Luna called the jailer on duty and requested that Dobbs be checked for alcohol use. Dobbs was tested three times on the Intoxilyzer, and all three tests revealed that he had a blood alcohol concentration above .17.

¶ 3. After the third test was administered, the officers informed Dobbs that he would be required to enter a screening cell, or “drunk tank.” Dobbs protested and argued that the tests were incorrect. He refused to go into the screening cell. Deputy Joe Huffman explained to Dobbs that the rules required him to do so, and eventually Dobbs agreed to enter the cell. When jailer Danny Banks unlocked the door, however, Dobbs refused to comply. Deputy Huffman was then summoned for assistance.

¶ 4. Deputy Huffman approached Dobbs and asked him to go into the screening cell. Dobbs adamantly refused, insisting that he had not been drinking. Deputy Huffman testified that Dobbs’s “demeanor kept getting louder” and that he “kept throwing his hand in the air stating that he was not going to go in there.” According to the testimony of Banks and Deputy Huffman, Dobbs initiated physical confrontation by grabbing the collar of Deputy Huffman’s shirt. A scuffle ensued, as the two men wrestled from one side of the hallway to the other. Deputy Huffman gained control by wrestling Dobbs to the floor. Just as Dobbs appeared to relent, he suddenly flipped Deputy Huffman over his head. Eventually, Banks and Deputy Huffman were able to place Dobbs in the cell.

¶ 5. During the trial, Dobbs testified that Deputy Huffman intentionally struck him in the groin during the scuffle. Dobbs further testified that he threw Deputy Huffman over his head because he was being choked. According to Dobbs, he had to resist Deputy Huffman to avoid being harmed. The jury heard contrary testimony from Banks and Deputy Huffman, both of whom testified that Dobbs initiated the physical confrontation, and that he threw the deputy over his head after pretending to give up the struggle. Both the prosecution and the defense played a partially obstructed videotape of the events in question while examining witnesses, including Dobbs. The jury also heard testimony from Luna, the jail administrator, and several inmates of the Clay County Jail.

¶ 6. On July 22, 2004, Dobbs was convicted on the charge of simple assault on a law enforcement officer. The trial court denied Dobbs’s motion for a new trial or, in the alternative, a JNOV. Aggrieved by the trial court’s decision, Dobbs appeals. He asserts that the trial court erred by failing to properly instruct the jury as to self-defense.

STANDARD OF REVIEW

¶ 7. “In determining whether error lies in the manner in which the jury was instructed, the various requested instructions are not considered in isolation. Rather, the instructions actually given must be read as a whole.” Sheffield v. State, 844 So.2d 519, 524(¶ 12) (Miss.Ct. App.2003) (citing Turner v. State, 721 So.2d 642, 648(¶ 21) (Miss.1998)). When read as a whole, if the instructions fairly announce the law of the case and create no injustice, then no reversible error will be found. Johnson v. State, 908 So.2d 758, 764(¶ 20) (Miss.2005) (citing Williams v. State, 863 So.2d 63, 65(¶ 5) (Miss.Ct.App. 2004)).

ISSUE AND ANALYSIS

I. Whether the trial court erred by failing to properly instruct the jury as to self-defense.

¶ 8. During trial, Dobbs testified that he threw Deputy Huffman over his head in self-defense, but that he did not intend to do the deputy any harm. Based on this testimony, Dobbs argues that there was credible evidence in the record to support his claim of self-defense. Consequently, Dobbs argues that the trial court denied him a fair trial when it declined to give the jury his requested instructions on self-defense, labeled D-2, D-3, and D-5.

¶ 9. The State argues that the trial court properly refused the jury instructions requested by Dobbs because they were repetitive. We agree. Although a defendant is entitled to jury instructions which present his theory of the case, “this entitlement is limited to instructions that correctly state the law, are not covered fairly elsewhere in the instructions, and have a foundation in the evidence.” Sproles v. State, 815 So.2d 451, 454(¶ 9) (Miss.Ct.App.2002) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). Furthermore, “the trial court is not required to grant several instructions on the same question in different verbiage.” Sproles, 815 So.2d at 454(¶ 9) (citing Ragan v. State, 318 So.2d 879, 882 (Miss. 1975)).

¶ 10. Requested jury instruction D-2 read as follows: “[t]he Court instructs the jury that if you find that the Defendant, Denis [sic] Dobbs, on or about December [sic] 2002, acted in necessary self defense from Deputy Joe Huffman, then you SHALL FIND THE DEFENDANT NOT GUILTY of Simple Assault of a Law Enforcement Officer.” The State argues that this instruction was adequately covered by instruction S-2, which was granted. Instruction S-2 stated in part that Dobbs should be found guilty as charged if the jury finds that he “unlawfully, willfully, feloniously, purposely, and knowingly [caused] or [attempted] to cause bodily injury to Deputy Joe Huffman ... without authority of law and not in necessary self defense.” We find that the limited subject matter of instruction D-2 was adequately covered by S-2. Thus, the trial court did not err in denying instruction D-2.

¶ 11. Dobbs also argues that the trial court erred in refusing to grant in-straction D-3. Requested jury instruction D-3 read as follows:

Dennis Dobbs has been charged with the offense of Simple Assault upon a Law Enforcement Officer.
If you find from the evidence in this case the State FAILED to prove in this case BEYOND A REASONABLE DOUBT that:
1. Dennis Dobbs, on or about December 6, 2002 in Clay County;
2. Unlawfully, willfully, purposely and knowingly cause or attempt to cause bodily injury to Joe Huffman;
3. By repeatedly grabbing Joe Huffman with his hands and wrestling with him;
4. Joe Huffman was a law enforcement office [sic];
5. Joe Huffman was acting within the scope of his duty as a law enforcement officer, and further;
6. Dennis Dobbs was not acting in self defense;
then you shall find the defendant NOT GUILTY of the Charge of Simple Assault on a Law Enforcement Officer.

The trial court ruled found that this instruction was repetitive to instruction D-l, which was granted. Instruction D-l read as follows:

The Court instructs the Jury that if you find that the STATE failed to prove beyond a REASONABLE DOUBT that the Defendant, Den[n]is Dobbs, did on or about December 6th, 2002, did unlawfully, willfully, purposely and knowingly cause or attempt to cause bodily injury to Deputy Joe Huffman, a law enforcement officer with the Clay County Sheriffs Department, at a time when the said Deputy Joe Huffman was acting with the scope of his official duties and office, by repeatedly grabbing the said Deputy Joe Huffman with his hands and wrestling with him, without authority of law not in necessary self defense, then you SHALL FIND THE DEFENDANT NOT GUILTY of Simple Assault of a Law Enforcement Officer.

We fail to see any meaningful difference between instruction D-l, which was granted by the trial court, and instruction D-2. Accordingly, we find that the trial court did not err in refusing to grant instruction D-2.

¶ 12. Finally, Dobbs argues that the trial court erred in refusing to grant instruction D-5, which read as follows:

The Court instructs the Jury that if you believe from the evidence in this cause that Deputy Joe Huffman committed an unprovoked or unnecessary assault or attack upon the Defendant, Dennis Dobbs, while giving a Command to Mr. Dobbs a State Inmate, then in the event the defendant had the right to resist said unprovoked or unnecessary attack, and if you further believe the defendant’s use of this force was not more than reasonably necessary for his own protection and that the defendant’s conduct did not cause the assault, then you should find the defendant NOT GUILTY.

The trial court refused to grant instruction D-5, holding that the jury was properly instructed by instructions S-4 and D-4. Instruction D-4 required the jurors to render a verdict of not guilty if they determined that Deputy Huffman “used excessive force that was not reasonably necessary to compel Dennis Dobbs to comply with his order.” Instruction S-4 stated in part that “an officer may use such force as is reasonably necessary” to compel an inmate to comply with his lawful order, but he may not use excessive force to accomplish this purpose. S-4 further instructed the jurors that if they found “beyond a reasonable doubt that Joe Huffman was using only such force as was reasonably necessary ... then Joe Huffman was justified in his use of that force and the defendant cannot claim a right to resist that force.”

¶ 13. We find that the jury was properly instructed by instructions S-4 and D-4, which effectively conveyed the message that Deputy Huffman’s actions were not justifiable if he used excessive force. If the jurors determined that Deputy Huffman used excessive force, then they were required to render a verdict of not guilty. Although instruction D-5 does not use the language “excessive force,” it does ask the jurors to determine whether Deputy Huffman’s actions were “unnecessary.” The trial court was not required to grant several instructions that used different wording to address the same issue, i.e., whether Dobbs was subjected to excessive, or unnecessary force. Therefore, this issue is without merit.

¶ 14. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT OF CONVICTION OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR.


author: WALLER, Presiding Justice,

text:
    Herman SIPP, Jr. v. STATE of Mississippi.
    No. 2004-KP-02287-SCT.
    Supreme Court of Mississippi.
    June 22, 2006.
    Rehearing Denied Aug. 31, 2006.

      Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SMITH, C.J., WALLER, P.J., and DICKINSON, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Herman Sipp, Jr. appeals from his conviction in Jackson County Circuit Court of murder and sentence of life imprisonment in the custody of the Mississippi Department of Corrections. We affirm.

FACTS

¶ 2. Ann Loper and Herman Sipp, Jr. were involved in a dating relationship for several years. Though the relationship ended, Loper and Sipp continued to share an apartment. Loper then began to date Jimmy Neal Kelly. Loper knew of Sipp’s jealous tendencies and attempted to keep her relationship with Kelly hidden from Sipp. Sipp, however, soon discovered the existence of Loper and Kelly’s relationship. On the night of December 4, 2001, Loper and Kelly were leaving Kelly’s residence at around one o’clock in the morning when Kelly was shot in the back. Kelly later died as a result of injuries sustained from his gunshot wound.

¶ 3. Following the shooting, Sipp went to the apartment of Gary Lewis, Jr., a neighbor of Sipp’s. Lewis stated that Sipp seemed agitated, nervous, kept making comments about the police coming, and even admitted to Lewis that he had shot at Kelly. Sipp also asked Lewis to provide an alibi for him during the hours surrounding the shooting even though he was not with Lewis at the time.

¶ 4. Sipp was arrested and charged with Kelly’s murder. Police determined that the weapon used in the shooting was a high-powered rifle, but no bullet casings were recovered at the scene. Sipp was discovered to have borrowed a high-caliber, Russian rifle from his brother, Abram Sipp, not long before Kelly was shot and returned the gun a few days after Kelly’s shooting. According to a police report, Abram Sipp told police that when Herman Sipp returned the gun two bullets were missing, though Abram was unable to recollect those details on cross-examination by the State. Ann Loper testified she heard a voice threatening to shoot her, too, and believed the voice to be Sipp’s. Additionally, Richard Dixon, a fellow inmate of Sipp’s, stated that Sipp confessed to shooting Kelly. Sipp denied confessing to the crime to anyone. Sipp stated he was at a party for much of the evening of Kelly’s shooting, but witnesses who attended the party testified that Sipp was noticeably absent around ten o’clock and was not seen after that time. Sipp stated he was at Lewis’s home from midnight until four o’clock in the morning after smoking marijuana, and, thus, could not have shot Kelly. Other witnesses added little to Sipp’s case other than to state they had never seen Sipp with the gun allegedly used to kill Kelly and to attempt to damage the credibility of Richard Dixon.

¶ 5. After six hours of deliberations, the jury was summoned to give an update on their progress. The jury foreman stated there was a nine to three split among the jury, and it was his belief that the split would not be resolved that night. The circuit court suggested sending the jury home for the night and allowing them to continue deliberations the next day. Sipp argued against such a break and moved for the court to declare the jury hung. The circuit judge refused to declare a hung jury and recessed the trial until the next morning. The jury reached a unanimous verdict the following day and found Sipp guilty of Kelly’s murder. The circuit judge immediately sentenced Sipp to life in prison.

ISSUES

1. Whether the Circuit Court Erred in Refusing to Declare a Mistrial

¶ 6. Sipp contends the circuit court erred by allowing the State to use a statement made by Sipp to impeach him. He argues that the State’s use of that statement warranted the declaration of a mistrial because police violated his Miranda and Fifth and Sixth Amendment rights by procuring his statement after he had invoked his right to counsel. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At issue is a statement concerning Sipp’s participation in and injury from the breaking of a window at Kelly’s home a few weeks before Kelly’s murder. At the time of his statement, Sipp was in police custody and had been given a Miranda warning more than once. Sipp refused to sign a Miranda waiver and asked for his mother and attorney. Police continued to question Sipp, and Sipp made statements concerning a cut on his hand he received while breaking a window at Kelly’s home a few weeks before Kelly’s murder. At trial, the State used Sipp’s statement for impeachment purposes during cross-examination of Sipp. Sipp objected to the use of the statement by the State and moved for a mistrial. The circuit judge denied Sipp’s motion and allowed the State to use the statement for impeachment purposes only.

¶ 7. We review motions for mistrial under an abuse of discretion standard. Tate v. State, 912 So.2d 919, 932 (Miss.2005). The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case; however, the trial judge is permitted considerable discretion in determining whether a mistrial is warranted since the judge is best positioned for measuring the prejudicial effect. Id. (citing Gossett v. State, 660 So.2d 1285, 1290-91 (Miss.1995); Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990)).

¶ 8. We have stated that a voluntary statement that is inadmissible due to some technical violation of Miranda or is inadmissible because it is in violation of a defendant’s Fifth or Sixth Amendment rights can be used for impeachment purposes. See Cooley v. State, 391 So.2d 614, 619-21 (Miss.1980) (Defendant, on trial for murder, could be impeached with statements made to police about his “accidentally shooting a victim” in order to determine the general truthfulness of defendant’s testimony. We went on to state that when a defendant takes the stand and testifies, he may be impeached by his own statements — even if those statements were taken in violation of his Miranda rights); Bogard v. State, 624 So.2d 1313, 1318-19 (Miss.1993) (Defendant on trial for burglary and aggravated assault could be impeached with testimony concerning his presence at a victim’s home even if that statement was procured after defendant had pleaded the Fifth and/or requested counsel. Only a showing by defendant that the statement was not voluntarily given could exclude the statement). Concerning voluntariness, Sipp has not shown that he was threatened, mistreated, intoxicated, under the influence of drugs, or promised anything to make the statement. Id. Because Sipp’s statement was made voluntarily, and the State made no attempt to use Sipp’s statement in its case-in-chief, we cannot say the circuit court erred in allowing the State to use Sipp’s statement for impeachment purposes.

¶ 9. Sipp also argues the circuit court should have issued a limiting instruction to the jury to clarify that Sipp’s testimony about cutting his hand was strictly for impeachment purposes. However, we have stated that because a limiting instruction can actually focus the jury’s attention on sensitive information, it is the responsibility of defense counsel to ask for the instruction. Brown v. State, 890 So.2d 901, 913 (Miss.2004). The record does not reflect that Sipp ever moved for the limiting instruction to be given, and, as such, the circuit judge did not err by failing to give such an instruction to the jury.

2. Whether the Circuit Court Erred by Denying Defendant’s Motion to Introduce Defense Exhibits into Evidence

¶ 10. Sipp asserts the circuit court erred in denying Sipp’s motion to allow Defense Exhibits 3, 4, 5, and 6 to be introduced into evidence for purposes of showing the improbability that the victim was shot from the position indicated by the State. After cross-examining the State’s witness, Dr. Paul McGarry, concerning the angles and trajectory of the bullet that killed Kelly, Sipp attempted to have exhibits showing parts of the scene and angle overlays admitted into evidence. The defense had no expert or witness to testify as to the validity or accuracy of the proposed evidence, and only defense counsel could vouch for its reliability. The State objected to the exhibits being introduced into evidence. The circuit judge did not allow the exhibits to be placed into evidence, but he did allow them to be marked for identification.

¶ 11. Judges enjoy a great deal of discretion concerning the relevance and admissibility of evidence. Gilley v. State, 748 So.2d 123, 126 (Miss.1999). Only if the judge abuses that discretion to the prejudice of the accused will we reverse such a ruling. Id. Demonstrative aids or diagrams should only be allowed when they are based on evidence presented. See Jordan v. State, 786 So.2d 987, 1016-17 (Miss.2001); See also Cox v. State, 849 So.2d 1257, 1273 (Miss.2003) (holding that computer-generated animation should only be admitted where defendant gave specific, scientific data used to create the animation to ensure its accuracy); Ware v. State, 790 So.2d 201, 207 (Miss.App.2001) (finding that failure of a lay witness to justify why he projected impact of auto accident a certain way on a diagram warranted exclusion of the diagram). Sipp failed to show how the diagrams and trajectory estimates he wanted to be placed into evidence had any scientific justification, expert basis, or basis in first hand knowledge. As such, the circuit court did not err in excluding the diagrams as evidence.

3. Jury Issues

¶ 12. Sipp’s next contention of error centers around the amount of time the jury spent deliberating. After six hours of deliberation, the circuit judge called the jury back into the courtroom to check on their progress in reaching a verdict. The jury’s foreman indicated that strides were being made toward a unanimous vote, but he was not sure a verdict could be reached that night. He was hopeful, however, that a unanimous decision could be reached soon. Sipp objected to allowing the jurors to deliberate any longer and moved to declare a hung jury. The circuit judge refused to find a hung jury, recessed the court, and instructed the jury to return the next morning to continue deliberations. Sipp argues that the circuit court’s refusal to declare a hung jury was reversible error.

¶ 13. This Court has acknowledged that it is within the sound discretion of the trial judge as to how long he will keep the jury in deliberation, and “this discretion will not be reviewed on appeal unless there has been a clear abuse of discretion.” Greenlee v. State, 725 So.2d 816, 824 (Miss.1998) (quoting Dixon v. State, 306 So.2d 302, 304 (Miss.1975)). Additionally, there is no bright line rule as to when a judge should grant a continuance or a recess, and this Court’s analysis must focus on the unique facts of the case. Hooker v. State, 716 So.2d 1104, 1113-14 (Miss.1998). Because deliberations had taken only six hours, progress was being made, the jury foreman was hopeful that a unanimous decision could be reached, and the judge allowed the jury to recess for the evening for rest, we cannot find that the circuit judge abused his discretion in refusing to declare a mistrial and recessing jury deliberations overnight in the present case. Id. See also Isom v. State, 481 So.2d 820 (Miss.1985); Grimsley v. Tyner, 454 So.2d 482 (Miss.1984).

¶ 14. Sipp also argues the circuit court erred by failing to question each of the jurors on whether or not they had read a newspaper article that Sipp’s counsel found to be adverse to Sipp’s case. This argument is completely without merit. The trial judge asked the jury as a whole whether any of them had discussed the case with anyone, whether they had avoided televisions, newspapers, and radios, and whether they had read any articles concerning the case. The record is completely devoid of any comments or indications by the members of the jury that any of them had been inappropriately contacted or had viewed restricted forms of media. Sipp has failed to cite any relevant authority to the contrary, and we do not find that the judge’s use of general, instead of individualized, questioning was error.

4. Whether the Circuit Court Erred in Overruling Sipp’s Objection to the State’s Closing Argument.

¶ 15. Sipp contends the circuit court erred by allowing the State to make a statement concerning the exact time Sipp returned to Gary Lewis’s house the night of Kelly’s murder. Sipp objected to the State’s assertion of his presence at Lewis’s home at a specific time because, Sipp argued, the exact time was not a fact in evidence. The circuit court overruled Sipp’s objection and allowed the State to continue its closing argument.

¶ 16. We have stated that prosecutors are generally entitled to great latitude when framing a closing argument absent impermissible factors like commenting on a defendant’s failure or refusal to testify. Dunaway v. State, 551 So.2d 162, 163-64 (Miss.1989). Prosecutors are bound “to the facts introduced in evidence and to the fair and reasonable deduetion[s] and conclusions to be drawn therefrom.” Id. In the present case, the prosecutor was simply presenting to the jury his own deductions of Sipp’s whereabouts based on witness testimony. As a finder of fact, the jury was free to accept or disregard the prosecutor’s conclusions concerning the whereabouts of Sipp and were even encouraged to consider disregarding it by defense counsel’s challenge. We do not find that the prosecutor’s comments were of an impermissible nature.

5. Denial of Motion for a Directed Verdict.

¶ 17. Sipp argues the circuit court erred when it denied his motion for a directed verdict. A motion for a directed verdict implicates the sufficiency of the evidence presented at trial. Anderson v. State, 904 So.2d 973, 977 (Miss.2004) (citing Shelton v. State, 853 So.2d 1171, 1186 (Miss.2003)). When considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)).

¶ 18. In the present case, two witnesses testified that Sipp confessed to shooting Kelly. Sipp’s alibi could not be confirmed by any of the people he alleged he had been with before, during, or after the time of Kelly’s shooting, and circumstantial evidence concerning the weapon used to kill Kelly also pointed to Sipp as the shooter. After viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As such, we do not find that the circuit court erred when it denied Parks’s motions for directed verdict and judgment notwithstanding the verdict.

6.Weight of the Evidence

¶ 19. Sipp also argues that the jury’s guilty verdict is against the overwhelming. weight of the evidence. When reviewing a challenge to the weight of the evidence, we sit as. a “thirteenth juror” reviewing the evidence in a light most favorable to the verdict, and we will only disturb a verdict when it is so con trary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844-45 (Miss. 2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). Considering the amount of testimony and evidence presented by the State as outlined above, we cannot say that the verdict of the jury was contrary to the weight of the evidence before it.

7. Ineffective Assistance of Counsel

¶20. Sipp argues his defense counsel was constitutionally ineffective in two ways. First, Sipp contends his counsel was ineffective when he failed to object to two statements made concerning an allegation that Sipp made copies of Laura Lop-er’s keys. Second, Sipp maintains that his failure to call Queta McDavid, Kelly’s former girlfriend, to the stand further rendered his counsel ineffective. Sipp suggests that by calling McDavid his defense counsel could have demonstrated that she broke the window in Kelly’s house a few weeks before Kelly was shot. In addition, Sipp contends that by calling McDavid to the stand the jury might have been convinced that she killed Kelly out of anger and jealousy over his relationship with Ann Loper.

¶ 21. When considering considering claims of ineffective assistance of counsel, we follow the guidelines provided by the United States Supreme Court. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The “benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. To succeed on a claim of constitutionally ineffective counsel, a defendant must show both that (1) the counsel’s performance was deficient and (2) the deficient performance deprived the defendant of a fair trial. Bell v. State, 879 So.2d 423, 430 (Miss.2004). Specifically, the inquiry must focus on whether counsel’s performance fell below an objective standard of reasonableness. Id. at 431. In addition, Sipp must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. (quoting Strickland, 466 U.S. at 691-94, 104 S.Ct. 2052).

¶ 22. Sipp’s argument that his attorney was ineffective for failing to object to comments by the State concerning Sipp’s copying of keys is without merit. Sipp fails to show the relevance these facts have in the present case. Sipp never states how objecting to or attempting to contradict the State’s assertions concerning the copying of Loper’s keys would have disproved the evidence presented by the State. As such, Sipp fails to show that his counsel erred in ignoring the irrelevant information, and he fails to convincingly assert that objecting to the statements would have changed the trial’s result.

¶23. Sipp’s suggestion that his counsel’s failure to call McDavid as a witness showed a constitutional deficiency also fails. We have stated that an attorney’s choice of whether to call certain witnesses and ask certain questions “falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Bell, 879 So.2d at 434 (quoting Jackson v. State, 815 So.2d 1196, 1200 (Miss.2002)). Sipp does not allege that McDavid could have provided him with an alibi or even have testified to his innocence. Instead, Sipp merely states that the jury might have found McDavid to be another possible suspect based on her anger with Kelly for ending their relationship and dating Loper. Sipp has not shown that his counsel performed in a deficient manner by failing to have McDa-vid testify, and Sipp’s conjecture about what McDavid might have said and what the jury might have gleaned from her testimony does not meet the Strickland standard of showing a reasonable probability that having McDavid testify would have changed the result of the proceedings. Both of Sipp’s assertions concerning the ineffectiveness of his counsel are without merit.

CONCLUSION

¶ 24. Because all of Sipp’s assertions of error are without merit, we affirm the trial court’s judgment.

¶ 25. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., NOT PARTICIPATING.


author: EASLEY, Justice,

text:
    Willie James GATES v. STATE of Mississippi.
    No. 2005-KA-01059-SCT.
    Supreme Court of Mississippi.
    Aug. 3, 2006.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before WALLER, P.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Willie James Gates was indicted by a grand jury in Leake County, Mississippi, for willfully, unlawfully, feloniously, purposely, and knowingly causing bodily injury to James Viverette by shooting Viver-ette with a shotgun, a weapon likely to cause death or serious bodily injury, in violation of Miss.Code Ann. § 97 — 3—7(2)(b) (aggravated assault). The jury found Gates guilty of aggravated assault. The trial court sentenced Gates to serve twenty years in the custody of the Mississippi Department of Corrections and to pay a fine of $5,000 plus all costs of court with ten years of said sentence suspended and probation for five years. Gates filed a motion for a new trial which the trial court subsequently denied. Gates now appeals to this Court in forma pauperis with the assistance of newly appointed counsel.

FACTS

¶ 2. Gates and Viverette were neighbors and relatives embroiled in a dispute over the ownership of land between their homes. The land had been owned by Lessie Mae Sanders, Viverette’s sister and Gates’s grandmother, before she died. Viverette testified that his sister had willed the land in question to him. Gates had employed surveyors to determine the property lines which caused a quarrel between Gates and Viverette over the surveyors’ presence on the property.

¶ 3. Viverette testified that on June 24, 2004, he was putting up a “Posted” sign to prevent trespassing on his property and to stop the surveyors from surveying the property and did not hear Gates pull up in his car. Viverette heard a gunshot and realized that he had been shot. Viverette testified Gates shot him without provocation. However, Gates testified he shot Viverette in self defense at close range after Viverette attacked him by hitting his car with a Kyzar blade with him inside the car. Viverette stated that he only had the hammer, nail, and sign in his hand at the time he was shot. According to Viver-ette, the Kyzar blade was leaned against the side of the tree when he was shot.

¶ 4. Vera Johnson was with Viverette on June 24, 2004. Johnson waited in Viver-ette’s truck parked on the side of the road while he went to post the sign. Johnson testified she could clearly see Viverette from where she was sitting. Johnson saw Gates pull up in his car with his two boys present in the vehicle. Johnson testified she had known Gates for years, and she could see clearly into his car from where she was sitting. Gates parked his car in the middle of the road. Gates did not get out of the car. Johnson then heard a gunshot. Gates drove away fast, and then Johnson saw blood coming down Viver-ette’s shoulder. Johnson testified Viver-ette and Gates did not exchange any words, and Viverette did not chase Gates with a Kyzar blade or strike Gates’s car with a Kyzar blade.

¶ 5. On June 24, 2004, Officer Carey Thomas, a deputy sheriff with the Leake County Sheriffs Office, was dispatched to the emergency room at Leake County Hospital on an aggravated assault call. Viverette was at the hospital. Viverette had been shot in the right ear. Officer Thomas testified Viverette informed him that Gates shot him, and he had not done anything to cause Gates to shoot him. Later that same day, Officer Thomas and Officer Mark Wilcher, another deputy sheriff, approached Gates in regard to an arrest warrant. Officer Thomas did not ask Gates any questions, but he observed Gates’s mother retrieve a single barrel shotgun and hand it over to Officer Wil-cher.

¶ 6. Officer Wilcher testified Gates told him that Viverette had attacked his car with a Kyzar blade and left scratches on the car. Officer Wilcher testified from photographs and his actual observance of the car that the scratches on the car did not appear to be consistent with Gates’s claim that the ear had been hit with a Kyzar blade. Officer Wilcher further testified that nothing else in his investigation pointed to Viverette doing anything with a Kyzar blade, or anything else, to threaten Gates.

DISCUSSION

I. Jury instruction D-4

¶ 7. In Humphrey v. State, 759 So.2d 368, 380 (Miss.2000), we held the standard of review in reviewing jury instructions is as follows:

Jury instructions are to be read together and taken as a whole with no one jury instruction taken , out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

(citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). See also Austin v. State, 784 So.2d 186, 193 (Miss.2001).

¶ 8. Gates contends the trial court erred in refusing jury instruction D-4 which provided:

The Court instructs the jury, that under the law, the Defendant is a competent witness in his own behalf, and that the Jury has no right to disbelieve him merely because he is a Defendant, and his testimony is entitled to such weight, faith, and credit as the Jury may think proper to give it.

¶ 9. However, this same instruction was determined to have been properly denied by the trial court in Coleman v. State, 697 So.2d 777, 784 (Miss.1997), disagreed with on other grounds, and Dilworth v. State, 909 So .2d 731, 735 (Miss.2005). In Coleman, a similar instruction was denied as singling out the testimony of one witness. Id. The jury instruction in Coleman originally read as follows:

The Court instructs the jury that the law of this State gives the Defendant, Johnny Earl Coleman, the right to testify in his own behalf, and the jury has no right to disbelieve him simply because he is the Defendant. His testimony is entitled to just as much faith and credit as the jury under all circumstances thinks it should have. Furthermore, his testimony is just as entitled to the same consideration as that of any other witness who testified in this case.

Id. The instruction in Coleman was later amended to read:

The Court instructs the jury that the law of this State gives the Defendant, Johnny Earl Coleman, the right to testify in his own behalf. His testimony is entitled to the same consideration as any other witness who testified in this case.

¶ 10. The Court held that “defendants are not entitled to an instruction which informs the jury that the defendant is a competent witness in his own behalf.” Id. (citing Baker v. State, 391 So.2d 1010, 1012 (Miss.1980)). See also Johnson v. State, 452 So.2d 850, 854-55 (Miss.1984) (The Court held that the defendant was not entitled to an instruction stating “that defendants are not entitled to an instruction which informs the jury that the defendant is a competent witness in his own behalf.”). This assignment of error is without merit.

II. Character of the victim

¶ 11. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Hentz v. State, 542 So.2d 914, 917 (Miss.1989). However, the judge’s discretion must be exercised within the bounds of the Mississippi Rules of Evidence. Johnston v. State, 567 So.2d 237, 238 (Miss.1990).

¶ 12. At trial, Gates’s trial counsel began a line of questioning during Viverette’s cross-examination about a previous incident “some weeks or months” before the shooting on June 24, 2004. Purportedly, Gates made out an affidavit in justice court against Viverette for assault, and Viverette filed a similar counter-charge against Gates. The transcript reflects that Gates’s trial counsel stated that he was unsure of the sequence of the filing of the charges. The State provided that Viverette was expected to testify that there were two charges in justice court filed against each other at the same time. Nothing was presented to the trial court to demonstrate that Viverette had been convicted in justice court. Likewise, nothing presented definitively which individual filed the initial charge or who was the initial aggressor.

¶ 13. The State argued that this purported prior incident which resulted in Gates and Viverette filing charges against each other in justice court had nothing to do with the case at hand. Gates’s trial counsel stated that the issue of the victim’s character never crossed his mind before beginning the line of question. The trial court excluded the line of questioning pursuant to M.R.E. 404(a)(2). On appeal, Gates’s appellate counsel argues that it was proper to question Viverette regarding the purported prior incident in justice court some weeks or months before the shooting at hand as any allegation of a violent tendency of the victim was directly pertinent to Gates’s defense.

¶ 14. Rule 404(a)(2) of the Mississippi Rules of Evidence provides:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor

¶ 15. Here, the purported charges in justice court were too remote in time to have any bearing on the case at hand. Likewise, the charges allegedly were filed by Gates and Viverette against each other. The line of questioning proffered did not provide any evidence that Viverette was the first aggressor in the case sub judice. Furthermore, the questioning focused on the charges not Viverette’s character trait for peacefulness. Viverette already testified extensively to the fact that bad feelings existed between Gates and himself over the tract of land. Viverette testified that problems between the two escalated when Gates had surveyors on the property.

¶ 16. Examining the record as a whole, the jury was dearly provided information evidencing the personal animosity that existed between Gates and Viverette. Also, a review of the record reveals that Johnson testified as an eye-witness to the incident. Johnson stated that Viverette did not undertake any aggressive act to provoke Gates to shoot him. In fact, Johnson testified that Gates shot Viverette from his car at a distance of approximately fifteen feet. Gates never got out of car that was parked in the middle of the street. Viver-ette testified that he was shot while he was in the process of nailing up a “Posted” sign. Johnson’s account of the events substantiated Viverette’s testimony that he was not the aggressor.

¶ 17. The testimony provided by Viver-ette and Johnson dispelled the argument in support of allowing the testimony under M.R.E. 404(a)(2) to prove a character trait for violence. In McGilberry v. State, 797 So.2d 940, 945 (Miss.2001), this Court addressed a similar situation as the case at hand, reasoning:

The trial judge properly granted the State’s motion in limine excluding reference to the altercation between McGil-berry and Shelby two months before the shooting. The prior fight is not relevant because regardless of what occurred two months earlier, the deceased was not the aggressor the day he was shot. McGil-berry came to the victim’s place of business armed and looking for the victim. The prior fight is irrelevant because nothing that occurred two months before played into this incident. The record shows that McGilberry was not acting in self-defense ...

(Emphasis added). See also Walker v. Benz, 914 So.2d 1262, 1268 (Miss.Ct.App. 2005) (The court found that Walker’s tendency towards aggressive behavior was not a pertinent character trait of Walker combined with the fact that Benz attacked Walker from behind as Walker was getting into his truck.).

¶ 18. Here, the evidence fails to demonstrate that Viverette was the initial aggressor on June 24, 2004. The purported counter-charges filed in justice court weeks or months earlier do nothing to demonstrate which individual was the aggressor in that prior alleged altercation. Likewise, the record does not demonstrate that either Viverette or Gates were previously convicted for the prior purported assault. At best, the evidence sought to be introduced by the line of questioning would have demonstrated that Gates and Viverette had personal animosity toward each other. Their animosity was fully covered by other testimony in the record. As such, we find the trial court did not err in excluding this line of questioning. This assignment of error is without merit.

III. Hearsay

¶ 19. Gates contends the trial court erred in sustaining the State’s hearsay objection. On cross-examination, Viv-erette testified as to what Sarah Gates, Gates’s mother, had said to him regarding the surveyors being present on the land during a telephone conversation that transpired prior to June 24, 2004, when the aggravated assault occurred. The State objected to Viverette’s testimony on the grounds that it was hearsay for Viverette to testify as to what Sarah stated during the telephone conversation. We find the trial court properly sustained the hearsay objection.

¶ 20. Without providing any elaborate analysis to show why the testimony was not hearsay, Gates’s appellate counsel simply states that the statement was not offered to prove the truth of the matter asserted, and as such, it does not meet the definition of hearsay provided under M.R.E. 801(c). Here, Viverette’s testimony was made in order to provide the details of Viverette’s telephone conversation with Sarah. Viverette was clearly attempting to testify as to what Sarah had told him regarding whether the surveyors were present on the property. As such, Viverette’s testimony as to what Sarah stated regarding the surveyors amounted to hearsay. See M.R.E. 801(c). This assignment of error is without merit.

¶ 21. However, the testimony as to what Sarah stated on the telephone clearly did not have any bearing on the aggravated assault at hand which occurred at a later date on June 24, 2004. Therefore, even assuming arguendo the exclusion of the testimony as hearsay was error, we find that it was harmless.

IV. Leading Question

¶ 22. Gates argues that the trial court erred by overruling his objection as to a leading question. During the State’s direct examination of Viverette, the following colloquy prompted the defense’s objection:

Q: And you say that you got your daughter. Would that be Janice Body?
A: That’s right.

¶ 23. Rule 611(c) of the Mississippi Rules of Evidence provides:

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

(Emphasis added). Further, the comments to M.R.E. 611(e) provide:

[T]he judge has some discretion in allowing leading questions. Thus, leading questions are frequently used in developing preliminary matters. See Seals v. St. Regis Paper Company, 236 So.2d 388 (Miss.1970); Thomas v. State, 217 So.2d 287 (Miss.1968).

¶ 24. The name of Viverette’s daughter was not an issue at trial. Viverette testified that his daughter drove him to the emergency room after he was shot. The State’s question which prompted an objection as to leading was simply to ask Viver-ette if his daughter’s name was Janice Body. The question was merely to provide a name for Viverette’s daughter in the development of his testimony concerning how he arrived at the emergency room after being shot. Therefore, we find the trial court did not err in overruling Gates’s objection as to leading. This assignment of error is without merit.

V. Officer Wilcher

¶ 25. Gates contends that the trial court erred in allowing Officer Wilcher to testify as to whether the scratches on Gates’s car which he observed first hand, in the course of his investigation, were consistent with a Kyzar blade hitting the car. Officer Wilcher testified that during the course of his investigation he interviewed Gates, and Gates claimed that Viv-erette had attacked his car with a Kyzar blade with him inside the car prompting him to shoot Viverette in self defense. Officer Wilcher testified that Gates showed him his car, and he actually observed the scratches on the car. Officer Wilcher testified that he had used a Kyzar blade in the past and was familiar with the use of a Kyzar blade.

¶ 26. The trial court conducted a hearing outside the jury’s presence on Gates’s objection. The State argued that Officer Wilcher was not testifying as to what caused the scratches on the car, just that from Officer Wilcher’s experience and actual observation, the scratches did not appear to be consistent with the car being hit by a Kyzar blade. After hearing the defense’s argument in support of its objection and the State’s recount of Officer Wil-cher’s prior testimony, the trial court questioned Officer Wilcher. The exchange was as follows:

Q: Let me hear you on what your testimony would be if I allowed that ...
A: Your Honor, it was my experience with a Kyzar blade, the way I’ve used it, this just did not seem consistent with what you would expect a Kyzar blade to cause.

¶ 27. After more discussion on the record, the trial court stated that the jury is the arbiter of the facts and concluded that the testimony here was something within the grasp of a lay person to testify subject to full cross-examination by the defense.

¶ 28. Rule 701 of the Mississippi Rules of Evidence provides:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Further, the comments to M.R.E. 701 provide in pertinent part:

Rule 701 is a departure from the traditional rule. It favors the admission of lay opinions when two considerations are met. The first consideration is the familiar requirement of first-hand knowledge or observation. The second consideration is that the witness’s opinion must be helpful in resolving the issues.

(Emphasis added).

¶ 29. Officer Wilcher was recalled to the witness stand when the jury returned to resume his testimony. Besides testifying as to his personal observation of the scratches in the course of his investigation, Officer Wilcher also reviewed photographs that had been admitted into evidence as an exhibit to the defense’s case. Officer Wil-cher then recounted Gates stating that Viverette attacked his car with a Kyzar blade with him inside which resulted in him shooting Viverette in self defense. Officer Wilcher’s testified as to his personal experience with the use of Kyzar blades and his first-hand observation of the scratches on the car during the course of his investigation. Officer Wilcher testified that the scratches did not appear to be consistent with someone hitting the car with a Kyzar blade, but on cross-examination, he noted that the scratches on the car could only have been made if the person using the Kyzar blade had been very careful not to dent the car.

¶ 30. Based on a review of the record, we find the trial court did not err in admitting Officer Wilcher’s testimony. This assignment of error is without merit.

CONCLUSION

¶31. For the foregoing reasons, the judgment of the Circuit Court of Leake County, Mississippi, is affirmed.

¶ 32. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAYMENT OF A FINE OF $5,000, AND ALL COSTS, WITH CONDITIONS, AFFIRMED. TEN (10) YEARS OF SAID SENTENCE IS SUSPENDED LEAVING TEN (10) YEARS TO SERVE AND APPELLANT IS PLACED ON PROBATION FOR FIVE (5) YEARS.

SMITH, C.J., WALLER, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., AND GRAVES, J„ CONCUR IN RESULT ONLY.

      . The term is commonly spelled “Kaiser”, but throughout the record it is spelled “Kyzar”. We will use the record spelling in this opinion.

      . Gates cites two cases Simmons v. State, 206 Miss. 535, 40 So.2d 289 (1949), a pre-rules case which addressed character of a witness, not a victim; and Vaughan v. State, 759 So.2d 1092 (Miss.1999), which addressed character of a witness, not a victim, and focused on whether the evidence was properly proffered. Neither case is directly applicable to the case sub judice.

      . M.R.E. 801(c) defines hearsay as follows: “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”


text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Nell Y. COWART.
    No. 2006-JP-00211-SCT.
    Supreme Court of Mississippi.
    Aug. 17, 2006.

      Luther T. Brantley, III, attorney for appellant.
    Richard C. Fitzpatrick, Poplarville, attorney for appellee.
   EASLEY, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. On March 24, 2005, the Mississippi Commission on Judicial Performance (Commission) filed a formal complaint against Nell Y. Cowart, Justice Court Judge for the Southeast District of Pearl River County, Mississippi, alleging judicial misconduct which was actionable pursuant to Article 6, Section 177A Mississippi Constitution of 1890, as amended. The Commission later filed an amended complaint on April 5, 2005, adding additional counts. Judge Cowart filed an answer to the amended formal complaint on May 25, 2005. Counsel for the Commission and Judge Cowart entered into an Agreed Statement of Facts and Proposed Recommendation which was filed on January 5, 2006. The Commission unanimously accepted and adopted the Agreed Statement of Facts and Proposed Recommendation on January 5, 2006, and signed the documents on January 27, 2006. The Agreed Statement of Facts and Proposed Recommendation was in lieu of an evidentiary hearing on the facts.

¶ 2. The Commission’s Finding of Facts and Recommendation were filed with this Court on February 7, 2006. Specifically, the Commission found that Judge Cowart’s conduct violated Canons 1, 2A, 3B(1), 3B(2), 3B(4), 3B(7), 3B(8), 3C(1), and 3E(1) of the Code of Judicial Conduct of Mississippi Judges. The Commission found that Judge Cowart’s behavior constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 3. On January 27, 2006, the Commission recommended to this Court that Judge Cowart be publicly reprimanded, suspended from office as Justice Court Judge, Southeast District, Pearl River County, Mississippi, for a period of thirty (30) days without pay, and assessed the costs of this proceeding in the amount of $100.00. A joint motion for approval of recommendations by the Mississippi Commission on Judicial Performance was filed with this Court. On May 24, 2006, the Mississippi Commission on Judicial Performance and Judge Cowart filed a supplementation to the record concerning the six factors this Court considers when determining the appropriateness of judicial sanctions pursuant to In re Baker, 535 So.2d 47, 54 (Miss.1988), and subsequently-modified by Miss. Comm’n on Judicial Perfomance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004). We adopt the Commission’s recommendation of public reprimand, suspension from office for a period of thirty (30) days without pay, and assessment of the costs of the proceeding in the amount of $100.00.

FACTS

¶ 4. According to the Agreed Statement of Facts and Recommendation adopted by the Commission and submitted to this Court, on or about August 31, 2004, Sherrie S. Sibley caused an affidavit to be filed in the Justice Court of Pearl River County, Mississippi, alleging telephone harassment against Sibley’s ex-husband, Byron Fend-ley. On that date, Judge Cowart met with Sibley at the Justice Court office and requested that Sibley relate the details of the incident giving rise to the filing of the affidavit. Sibley explained to Judge Co-wart the facts of the case and played telephone tape recordings. Judge Cowart then indicated that she was willing to sign a restraining order against the ex-husband, but she declined to sign a warrant due to her relationship with the ex-husband’s family and the fact that she had engaged in ex parte communications with Sibley and listened to the tape recordings. Judge Cowart signed the restraining order and then telephoned another justice court judge and arranged the execution of the warrant.

¶ 5. A notice was allegedly mailed from the Justice Court Clerk’s office to Sibley notifying her that the case had been set for hearing on October 7, 2004, at 9:00 a.m. Thereafter, Sibley contacted the Justice Court office advising that she had not received a written Notice of Hearing and stated she was told that a written notice would be sent and that the date of the hearing had been set for October 8, 2004. Having received no written notice, Sibley reported to the Justice Court on October 8, 2004, only to find that Judge Cowart had heard the case on the previous day and dismissed the charges due to Sibley’s absence in court. The clerk then telephoned Judge Cowart, and Sibley spoke by phone with Judge Cowart about the court dates. Judge Cowart indicated that the case had been dismissed and that there was nothing Sibley could do to have it reinstated. Thereafter, the prosecutor, Cheryl D. Johnson, filed a Motion to Set Aside Order and Reset for Hearing and Motion for Recusal of Judge citing the failure to provide proper notice to Sibley, Judge Cowart’s admitted conflict of interest, and lack of prejudice to the ex-husband. All of the relief requested was denied by Judge Cowart.

¶ 6. On or about November 18, 2004, Shelia P. Yarnado was issued traffic citations for no proof of liability insurance and disregard for a traffic device. Thereafter, Judge Cowart approached a justice court employee and asked her to contact the deputy sheriff who issued the tickets and ask him to “help on the tickets.” The employee did contact the deputy who refused to dismiss the citations, and Judge Cowart was so advised. Varnado was notified on January 5, 2005, that due to her failure to appear she would have ten days to pay the fines or her driver’s license would be suspended.

¶ 7. On February 2, 2005, Judge Cowart again approached the employee and told her that she wanted to pay Varnado’s fines. Judge Cowart claims that the money was provided to her by Varnado’s father. Judge Cowart submitted the funds to the Justice Court Clerk who receipted them as payment for the Varnado fines. Later that day, Judge Cowart called the clerk’s office and asked for the deputy’s telephone number. The deputy later called the clerk’s office and asked that the tickets be “pulled.”

¶ 8. On February 3, 2005, Judge Cowart called the clerk’s office and told the clerk that she had spoken with the officer who advised her that he had agreed at the first request that the tickets be pulled. The ticket was dismissed, and Judge Cowart then requested the tickets be pulled and the money refunded. The clerk stated that nothing could be done since the funds for the fines had been received by the clerk’s office and receipted. At Judge Co-wart’s insistence, the clerk pulled the tickets, printed withdrawals, and put them in Judge Cowart’s box for her signature.

¶ 9. Thereafter, on February 7, 2005, Judge Cowart entered orders remanding the charges to the files indicating that there was a misunderstanding between the court and the issuing officer, as the officer had recommended that such action be taken.

¶ 10. On November 30, 2003, Cynthia R. Gascon was ticketed by the Mississippi Highway Patrol for speeding. On April 23, 2004, Judge Cowart remanded the charge to the file without requiring Gascon to appear in court and without contacting the issuing officer.

¶ 11. On June 3, 2004, Arthur Miciello, Jr. was issued a violation by the Mississippi Highway Patrol for speeding and an expired car tag. On July 22, 2004, Judge Cowart remanded the charges to the file without requiring Miciello to state his plea and without contacting the issuing officer.

¶ 12. When the issuing officer inquired as to the status of the above charges, Judge Cowart caused them to be reactivated and placed on the docket for hearing.

DISCUSSION

¶ 13. The standard of review for judicial misconduct proceedings is de novo. Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000) (citing Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993)). The Commission’s findings, based on clear and convincing evidence, are given “great deference.” Id. This Court however, is obligated to conduct an independent inquiry. Miss. Comm’n on Judicial Performance v. Neal, 774 So.2d 414, 416 (Miss.2000). Even though the Commission’s findings are considered, this Court is not bound by the findings, and additional sanctions may be imposed. Miss. Comm’n on Judicial Performance v. Whitten, 687 So.2d 744, 746 (Miss.1997).

I. WHETHER JUDGE COWART’S CONDUCT CONSTITUTES WILLFUL MISCONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION?

¶ 14. In judicial performance proceedings, this Court determines whether the conduct of the Judge constitutes willful misconduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 15. This Court has held:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith....
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.

Whitten, 687 So.2d at 747 (quoting In re Quick, 553 So.2d 522, 524 (Miss.1989)).

¶ 16. The Commission determined by clear and convincing evidence that Judge Cowart violated Canons 1, 2A, 3B(1), 3B(2), 3B(4), 3B(7), 3B(8), 3C(1), and 3E(1) of the Code of Judicial Conduct of Mississippi Judges. In the case sub judice, Judge Cowart had (1) ex parte communications, (2) presided over a case after acknowledging a conflict, (3) involved herself in ticket-fixing by contacting an officer, (4) handled money due for fines owed, and (5) disposed of traffic violations without a hearing or notice to the issuing officer. Whether this behavior was actually willful is of no consequence. Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000) (quoting In re Anderson, 451 So.2d 232, 234 (Miss.1984)). As this Court has held:

While the conduct of Respondent, in our opinion, amounted to willful misconduct in office and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute, we recognize as quoted in In re Anderson, supra, that a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.

Id.

¶ 17. We find that Judge Cowart’s conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Accordingly, we find that the Commission’s findings were correct as to the willfulness of the conduct before this Court, and we uphold and adopt them.

II. WHETHER JUDGE COWART SHOULD BE PUBLICLY REPRIMANDED, SUSPENDED FROM OFFICE FOR A PERIOD OF THIRTY DAYS WITHOUT PAY, AND ASSESSED ALL COSTS AS RECOMMENDED BY THE COMMISSION?

¶ 18. The Commission recommended that Judge Cowart be publicly reprimanded, suspended from office for a period of thirty days without pay and, assessed all costs associated with this proceeding in the amount of $100.00. The Commission and Judge Cowart have signed an Agreed Statement of Facts and Proposed Recommendation which was unanimously accepted and adopted by the Commission.

¶ 19. Imposing sanctions is left solely to the discretion of this Court. Miss. Comm’n on Judicial Performance v. Jones, 735 So.2d 385, 389 (Miss.1999). The sanction, however, ought to fit the offense at issue. Boykin, 763 So.2d at 876. There is precedent for a public reprimand, suspension from office for a period of thirty days without pay, and assessment of costs in Mississippi for similar actions taken by a judge.

¶ 20. Judge Cowart engaged in ex parte communications with litigants which is clearly prohibited by Canon 3B(7) and has been found to constitute misconduct in a multitude of cases. See Miss. Comm’n on Judicial Performance v. Lewis, 913 So.2d 266, 270 (Miss.2005); Miss. Comm’n on Judicial Performance v. Dodds, 680 So.2d 180, 198 (Miss.1996); Miss. Comm’n on Judicial Performance v. Chinn, 611 So.2d 849, 854 (Miss.1992).

¶ 21. In addition, Judge Cowart presided over a case after acknowledging a conflict existed. Canon 3(E)(1) requires judges to disqualify themselves “in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances.... ” See Comments to Canon 3(E); In re Blake, 912 So.2d 907, 917 (Miss.2005). See also Canon 3(B)(1) (Judges must hear and decide all assigned matters within their jurisdiction “except those in which disqualification is required.”); Miss. Comm’n on Judicial Performance v. Martin, 921 So.2d 1258, 1266 (Miss.2005); Miss. Comm’n on Judicial Performance v. Brown, 918 So.2d 1247, 1253-54 (Miss. 2005); Miss. Comm’n on Judicial Performance v. Justice Court Judge S.S., 834 So.2d 31, 34 (Miss.2003). Here, Judge Co-wart spoke with the affiant in a criminal case concerning alleged telephone harassment by the affiant’s ex-husband. Judge Cowart informed the affiant that she would sign a restraining order. However, Judge Cowart declined to sign a warrant due to her relationship with the ex-husband’s family and the fact she had engaged in ex parte communications with the affiant. Judge Cowart arranged to have the warrant executed by another justice court judge. However, when the case came on for trial, Judge Cowart did not recuse herself and instead dismissed the charges against the ex-husband.

¶ 22. Judge Cowart assisted others in avoiding prosecution for misdemeanor crimes by remanding cases to the file without requiring the parties to appear in court and without notification being issued to the arresting officer. She also assisted another litigant by contacting the arresting officer and requesting that he dismiss the tickets previously issued. Here, Judge Cowart telephoned the officer who issued the citations and requested that he “pull” the tickets. In Miss. Comm’n on Judicial Performance v. Brown, 761 So.2d 182, 186 (Miss.2000), this Court publicly reprimanded Judge Brown, fined him $500.00 and assessed costs. Judge Brown made telephone calls to the officer, the officer’s supervisor and the sitting judge in an attempt to influence a pending criminal case against his son. Id. at 183. See also Miss. Comm’n on Judicial Performance v. Williams, 880 So.2d 343 (Miss.2004); Miss. Comm’n on Judicial Performance v. Warren, 791 So.2d 194 (Miss.2001); Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872 (Miss.2000); Miss. Comm’n on Judicial Performance v. Bowen, 662 So.2d 551 (Miss.1995); Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387 (Miss.1993).

¶ 23. Here, the record reflects that no fines were avoided by any of the three individuals ticketed by officers. As will be addressed more fully below, Judge Cowart improperly handled fine money on Varna-do’s behalf. However, the record reflects that Varnado’s fine was paid and the clerk stated that no refund could be given because the funds for the fines had been received by the clerk’s office and receipted. As for the tickets issued to Gascon and Miciello, the record indicates that when the issuing officer inquired as to the status of the above charges, Judge Cowart had the cases reactivated and placed on the docket for hearing. Since the charges were placed on the docket, there is no indication that any fines were avoided by these two individuals. Accordingly, the Commission did not ask for any fines to be imposed on Judge Cowart.

¶ 24. Also, Judge Cowart handled fine money. In Miss. Comm’n on Judicial Performance v. A Justice Court Judge, 580 So.2d 1259, 1262 (Miss.1991), the Court found it to be improper for a Justice Court Judge to handle fine monies pursuant to Miss.Code Ann. § 9-11-19 (Supp.1990). Though there is no evidence that Judge Cowart materially benefitted from the collection of fine money, as stated in A Justice Court Judge, “it is easy for the misdemeanor offender who pays a fine to the justice court judge individually to get it into his head that the judge has a personal interest in the fine money.” Id. Here, Judge Cowart paid the fine claiming that the money was from the defendant’s father. After the fine money had been paid to the clerk and receipted, Judge Cowart continued to have the citations “pulled” and the funds refunded to the defendant’s father.

¶ 25. In determining the appropriate sanction for each case before this Court, we review mitigating factors pursuant to this Court’s holding in In re Baker, 535 So.2d 47, 54 (Miss.1988). In Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), this Court has modified Baker to apply generally to the determination of all sanctions in judicial misconduct proceedings rather than merely applying to the question of public reprimand. We now examine the appropriateness of sanctions here based on the following factors:

(1) The length and character of the judge’s public service.
Judge Cowart has held her position since January 1997. Both the Commission and Judge Cowart acknowledged in their supplement that the record contains no information on the judge’s public service.
(2) Whether there is any prior case law on point.
There is previous precedent as cited above for all the alleged violations committed by Judge Cowart.
(3) The magnitude of the offense and the harm suffered.
Engaging in ex parte communications, presiding over a case after acknowledging a conflict, remanding cases to the file without conducting any hearing or notifying the officers who issued the citations, contacting an arresting officer and requesting dismissal of an issued ticket, and handling fine money are prohibited and an abuse of power. These actions involved law enforcement officers, parties that appeared before the judge, parties that were scheduled to appear before the judge, and court staff.
(4) Whether the misconduct is an isolated incident or evidences a pattern of conduct.
The Commission and Judge Cowart acknowledged her disciplinary history and concluded that Judge Cowart had not evidenced a pattern of conduct at this time. However, the actions in this matter involved multiple incidents of misconduct. Judge Cowart had a prior informal admonishment. The prior infraction regarded an unrelated issue to the actions reviewed by this Court today. In Miss. Comm’n on Judicial Performance v. Brown, 918 So.2d 1247, 1258 (Miss.2005), this Court found that the current disciplinary matter involved multiple offenses and Judge Brown had been previously disciplined for a similar offense, that being, improperly interfering with a case before the Justice Court. Therefore, Judge Brown has evidenced a pattern of improper and unethical behavior. Id. In Miss. Comm’n on Judicial Performance v. Former Judge U.U., 875 So.2d 1083, 1085 (Miss. 2004), the Commission filed one complaint with this Court stemming from seven separate complaints by citizens. This Court held that the failure to render opinions and orders in six cases evidenced a pattern of neglect. Id. at 1095. In Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1156 (Miss.2004), Judge Gibson set aside a judgment imposed by another judge without a hearing or notice. This Court found that the record did not reflect other incidents of the same type of behavior which would evidence a pattern of conduct. Id. at 1158. In Miss. Comm’n on Judicial Performance v. Lewis, 913 So.2d 266, 272 (Miss.2005), this Court held that Judge Lewis evidenced a pattern of misconduct for prior and recurring ex parte communications. Judge Lewis had prior disciplinary actions that resulted in sanctions for ex parte communications. Id. These pri- or sanctions for ex parte communications and his failure to pay costs and failure to be reprimanded in open court for these matters coupled with the current allegations of ex parte communications evidenced a pattern of behavior. Id. Here, Judge Co-wart’s prior disciplinary action was unrelated to the current action before the Court. Pursuant to the above case law concerning a pattern of conduct, Judge Cowart’s three incidents of ticket fixing evidences a pattern of behavior.
(5) Whether “moral turpitude” was involved.
In Miss. Comm’n on Judicial Performance v. Justice Court Judge T.T., 922 So.2d 781, 786 n. 4 (Miss.2006), this Court defined moral turpitude to mean it “includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” The Commission and Judge Cowart acknowledged that “ticket fixing” interferes with the administration of justice by way of the judicial process. Clearly, any actions that interfere with the administration of justice are considered by this Court to involve moral turpitude.
(6) The presence or absence of mitigating or aggravating circumstances.
Aggravating circumstances are present in this case. Judge Cowart had ex parte communications, presided over a case with a known conflict, requested an officer to dismiss a ticket, remanded cases to the file without notice to officers, and handled monetary fines. These actions adversely affected a multitude of individuals, such as court staff, law enforcement, and parties appearing before Judge Cowart. Mitigating circumstances are present in that Judge Cowart acknowledged her inappropriate conduct and took responsibility for her actions in her agreed order with the Commission. In addition, there was no allegation that Judge Cowart profited financially from the conduct with which she was charged by the Commission.

¶26. We uphold the Commission and Judge Cowart’s joint agreement.

CONCLUSION

¶ 27. In conclusion, we find that the conduct of Nell Y. Cowart, Justice Court Judge, Southeast District, Pearl River County, Mississippi, constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Article 6, Section 177A of the Mississippi Constitution of 1890, as amended. The proposed sanctions are in line with past cases of the same or similar nature.

¶ 28. Also, Judge Cowart entered into an Agreed Statement of Facts and Proposed Recommendation which was unanimously, accepted and adopted by the Commission in lieu of an evidentiary hearing on the facts. A joint motion for approval of the Commission’s recommendation of public reprimand, suspension from office for a period of thirty (30) days without pay and assessed cost of the proceeding in the amount of $100.00 was filed with this Court. We grant that motion and order a public reprimand, a suspension from office for a period of thirty (30) days without pay, and assessment of court costs of $100.00 against Judge Cowart. This reprimand shall be read in open court on the first day of the next term of the Circuit Court of Pearl River County with Judge Cowart present.

¶ 29. PEARL RIVER COUNTY JUSTICE COURT JUDGE NELL Y. CO-WART SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE PEARL RIVER COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL; IS SUSPENDED WITHOUT PAY FOR THIRTY (30) DAYS FROM AND AFTER THE DATE OF ISSUANCE OF THE MANDATE IN THIS CASE, AND IS ASSESSED COSTS IN THE AMOUNT OF $100.00.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.