author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Brock Anthony LAFITTE.
    No. 10-1253.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.

      Eugene Paul Cicardo, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Brock Anthony Lafitte.
    James C. Downs, Alexandria, LA, for Appellee, State of Louisiana.
    Gregory Norman Wampler, Lemoine & Wampler, Pineville, LA, for Defendant/Appellant, Brock Anthony Lafitte.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   SAUNDERS, Judge.

| jOn January 10, 2008, the State charged both Defendant, Brock Anthony Lafitte, and Darien James Greenwood with one count of armed robbery, in violation of La.R.S. 14:64, and one count of aggravated second degree battery, in violation of La. R.S. 14:34.7. On July 13, 2009, Defendant waived his right to a jury trial and moved for a bench trial. At the conclusion of Defendant’s trial, the district court found Defendant guilty as charged. On February 5, 2010, the court ordered Defendant to serve ten years at hard labor for each conviction; designated that the armed robbery sentence was to be served without probation, parole, or suspension of sentence; set forth that the penalties were to run concurrently; and gave Defendant credit for time served.

Defendant now appeals. We affirm.

STATEMENT OF FACTS:

At trial, Thomas Cass first testified for the State. Mr. Cass was deer hunting with his son in the Kisatchie National Forest around dawn on October 20, 2007, when he encountered Josh Pilcher, the victim. Mr. Cass observed that Mr. Pil-cher seemingly had been severely beaten, as he was covered in dried blood and mud. Mr. Cass gave Mr. Pilcher a ride in his truck to seek medical attention.

Mr. Cass related what Mr. Pilcher told him about what happened. On the prior Thursday evening, Mr. Pilcher loaned his cell phone to two men, but they did not return it. After calling the number all day Friday, he finally spoke to them. The two men arranged to meet with Mr. Pilcher near where Mr. Cass went hunting. When Mr. Pilcher arrived, the two men jumped him, beat him, stole his wallet and keys, and placed him in the back of the truck. The men took turns driving and beating the man. After driving for a period of time, they pulled over and threw him into a ditch and |2commenced shooting in Mr. Pilcher’s direction. Finally, when the men appeared distracted, Mr. Pilcher ran away into the woods. The men followed and fired shots after him. Mr. Pilcher hid in the woods for the rest of the night until he sought help from Mr. Cass.

Detective Claude Weatherford, on October 20, 2007, went to Cabrini Hospital to meet with detectives regarding the battery of an individual at an unknown location. Once at the hospital, Detective Weather-ford talked to Mr. Pilcher then traveled to the location where he had been informed the incident had occurred. Detective Weatherford testified that, when he arrived on site where the battery took place, he observed Mr. Pilcher’s vehicle was parked near the scene, and Detective Weatherford found evidence that was consistent with Mr. Pilcher’s described events.

Detective Weatherford explained that, two days later, after being notified that a suspect had been located, officers photographed Defendant’s black extended-cab truck. Defendant informed the officers that he and Mr. Greenwood had used two rifles that night and gave them consent to search. The officers collected the rifles from Defendant’s bedroom. They collected a Remington seven millimeter magazine rifle. It appeared as if there was blood on the stock of the rifle. The second firearm collected was an SKS. The search also yielded spent cartridges in the back of Defendant’s truck that matched the SKS rounds.

Detective Reed, who supervised the Tio-ga detectives for the Rapides Parish Sheriffs Office, was the next witness called by the State. On October 20, 2007, he spoke to Mr. Pilcher at Cabrini Hospital. Detective Reed recounted the information he obtained from Mr. Pilcher:

He gave me his statement, which began — that put him and some co-workers at GG’s Club. They had met two guys. He knew one of |sthe[m] by the name of Darien, is what he had said. They were — had told him that they were in the military. Darien had accused one of the persons with Josh of taking his cell phone. He lost his cell phone at the club. They — there were some attempts to find the cell phone. Josh had told me that he loaned Darien his phone to try to call the lost phone to see if they could locate it. That never happened at GG’s. Josh advised that Darien and the other person that was with Darien left GG’s with his cell phone. He contacted them using his wife’s cell phone. He called his own cell phone that Darien had, the guy he was calling Darien, and had made arrangements to meet them to get his cell phone back. Josh says that [sic] was going to be on Messina Road. He told me that he went out to Messina Road. When he arrived[,] ... the person he knew as Darien was in the passenger seat and another male was driving.... He says he got — they were parked parallel. He says he got out of his vehicle, asked for his phone. The passenger told him he wasn’t getting his phone. He said the guy that he knew as Darien got out, produced a rifle, which Josh believed to be an AK-47. He said he shot a round — pointed it at him and then shot a round at his feet into the ground. He said during this, he said the driver got out and came around the truck. And I believe in his statement he said that they double-teamed him. He said he — he fell to the ground. The — the unidentified male at the time got on top of him, was yelling at him, cussing at him. Josh said he hit him, he struck him a few times, hit him. There was talk about him having a pistol, that he— he said he had a Glock and he was going to shoot him, things like that. During that same time, Darien, the one identified as Darien at the time, came back on top of him with the other person, Darien was questioning him pretty strongly about the cell phone — where’s the cell phone. And when Josh would say, I don’t know where your cell phone is, the one he knew as Darien would — would stab him in his hand. Josh said that they had him pinned down flat, one arm behind his back and the other arm stretched out on the — on the gravel road. He said at some point when they both — when they both was [sic] off of him, that’s when he was able to run off into the woods. And he stayed there until he — I guess the next morning, when he was walking through the woods and came across a hunter.

Detective Reed said that, at the hospital, Mr. Pilcher had knife wounds to his hand and a laceration on his head. Mr. Pilcher reported being in a lot of pain. During his interview with Mr. Pilcher, Detective Reed learned that Mr. Pilcher had been robbed as well as beaten. Mr. Pilcher’s wallet and cell phone had been taken.

After speaking with Mr. Pilcher, Detective Reed also went to the scene of the offenses. Mr. Pilcher’s truck was still parked on the road near the scene of the J^incident. Detective Reed observed while Detective Weatherford processed the scene. Detective Reed then obtained information through Mr. Pilcher’s wife. Mrs. Pilcher had access to the cell phone bill, so she printed out a copy, which showed the numbers called by Mr. Pil-cher’s cell phone during the early morning hours of the twentieth. Detective Reed was able to call the numbers to find out who had been calling them from Mr. Pil-cher’s phone.

Detective Reed related that one of the calls was to Olivia West, who said her boyfriend, Darien Greenwood, had called her to say he lost his cell phone at a night club. Ms. West gave Detective Reed information on Mr. Greenwood and stated she was unable to contact him during the day because he was attending a military school. Detective Reed then put Mr. Greenwood into a lineup and showed it to Mr. Pilcher; Mr. Pilcher identified Mr. Greenwood as the man he knew as “Dar-ien.”

Detective Reed said that two days later he was contacted by a master sergeant from the Air National Guard as a result of a call from Defendant. Defendant had informed the master sergeant that he had knowledge of the incident. Detective Reed met with both the master sergeant and Defendant at Defendant’s residence. Defendant was cooperative, and, after being read his rights, he consented to a search and gave a statement.

Detective Reed recalled that Defendant reported to having a role in the incident of protecting Mr. Pilcher, rather than harming him. Detective Reed did not immediately arrest Defendant because he wanted to consult Mr. Pilcher about the contents of Defendant’s statement.

In his statement, Defendant stated that at GG’s he and Mr. Greenwood met Mr. Pilcher and four Mexican contractors. Defendant discussed his plans with Mr. Pil-cher | sto later go out to Kisatchie, have a bonfire, drink, and shoot guns. Defendant continued that an incident involving Mr. Greenwood’s cell phone happened at GG’s:

The Mexicans were in a separate vehicle other than Josh and they left like about ... they left about the same time we did except they were taunting Darren because Darren called ... used my cell phone to call the Mexicans’ phones and I think it was Roberto or Richard, one of the guys in the truck that he called and he knew they had their cell phone because he could hear the music in the background. At that moment Josh.. he understood everything and he understood the situation very well and he proceeded to give ... he gave Darren his cell phone, his personal cell phone and said hey, I’m gonna call you from my wife’s phone. I have my wife’s phone, here you go, this is a good gesture. I’m gonna go find out what’s wrong with them but I still wanta meet up with you guys cause I wanta hang out. I’m sorry that happened but we still wanta go drink beer and go have fun.

Defendant then invited Mr. Pilcher to Kisatchie. Defendant did not want the contractors to attend because he was afraid of further conversation between them and Mr. Greenwood though Mr. Greenwood seemed to have calmed down. When Defendant and Mr. Greenwood met Mr. Pilcher at Kisatchie, Mr. Pilcher got out of his vehicle. When Mr. Greenwood asked where his cell phone was, Mr. Pil-cher said he had looked for it, but he was unable to locate the phone, so he did not have it. Defendant then stepped outside to relieve himself, and related that, when he turned back toward the truck, Mr. Greenwood had pointed Defendant’s SKS at Mr. Pilcher and fired a single shot into the ground. Defendant said he put himself between the two men, and ended up knocking Mr. Pilcher to the ground because he wanted to cover Mr. Pilcher with his body. Mr. Greenwood continued to taunt Mr. Pilcher with the gun, and Defendant kept pushing the barrel away from Mr. Pilcher. Defendant recalled Mr. Pil-cher being scared, but he did not know if Mr. Pilcher attempted to get away or told Defendant to let him up, as Defendant was also afraid.

| ñDefendant then said that, after firing the initial shot, Mr. Greenwood had “butt stroked” Mr. Pilcher onto the ground. Defendant dragged Mr. Pilcher to the front of the vehicles to protect him from shots fired down range. Eventually, Mr. Greenwood handed Defendant the rifle; Deféndant unloaded it and placed the shells in his pocket. Defendant went to back to his truck. When he returned, Mr. Greenwood was on top of Mr. Pilcher with a knife and had already cut Mr. Pilcher on the forehead. Defendant said he demanded that Mr. Greenwood get off of Mr. Pilcher, and he pleaded with Mr. Pilcher to tell Mr. Greenwood what he wanted to know.

Defendant said that Mr. Greenwood instructed him to grab Mr. Pilcher’s wallet, and Defendant obeyed. Defendant was on Mr. Pilcher, as Mr. Greenwood continued to interrogate Mr. Pilcher about the cell phone. Mr. Greenwood stabbed Mr. Pil-cher in the hand multiple times. Defendant, covered in blood, tried to stop Mr. Greenwood, but he did not want to get hurt. Defendant repeatedly told Mr. Greenwood to stop. Mr. Greenwood then mentioned that they could not leave Mr. Pilcher there, and they had to get rid of him. Defendant refused, got off of Mr. Pilcher, and walked to his truck. Mr. Greenwood took the keys from Mr. Pil-cher’s truck and kept them and the identification from Mr. Pilcher’s wallet. Defendant did not know what Mr. Greenwood did with the actual wallet.

Defendant maintained that he had done things he should not have because Mr. Greenwood threatened him. Defendant said he told Mr. Pilcher it would stop if he gave Mr. Greenwood back his cell phone. Defendant denied ever hitting Mr. Pilcher, shooting at Mr. Pilcher, or stabbing him. Defendant only held him down and took his wallet. Defendant distracted Mr. Greenwood in the hope that Mr. Pilcher would flee. Mr. Greenwood said they had to kill Mr. Pilcher. After Mr. Pilcher ran away, Mr. |7Greenwood insisted they find him and went walking in the woods. On the way back to Defendant’s house, Mr. Greenwood told Defendant to not say anything about the incident. The last time Defendant saw Mr. Greenwood, Mr. Greenwood said he was going to get rid of the evidence.

The next morning, Defendant informed his roommate, a neighbor, and a family friend who was a corrections officer about what had happened. Eventually, Defendant also notified his superiors in the military.

After the introduction of Defendant’s statement, Detective Reed resumed testifying. He talked to Mr. Pilcher about Defendant’s statement before arresting Defendant for armed robbery and second degree aggravated battery.

On cross-examination, Detective Reed agreed that Mr. Pilcher had told him that Defendant pulled him in front of the truck and covered him. Mr. Pilcher also related to Detective Reed that Mr. Greenwood had held the knife to Mr. Pilcher’s ear and threatened to cut it off. Mr. Pilcher said Mr. Greenwood took his wallet containing ten dollars and the cell phone. He also set forth that Defendant told Mr. Greenwood to stop and leave Mr. Pilcher alone. At the time he wrote the affidavit for the arrest warrant for Mr. Greenwood, Detective Reed had not had an opportunity to discuss Defendant’s statement with Mr. Pilcher in detail.

Detective Reed said, when he spoke with Mr. Pilcher, Mr Pilcher let him know that he never felt as if Defendant was trying to protect him. Mr. Pilcher added that Defendant was very vocal and voiced threats during the entire incident. Detective Reed wrote an affidavit in support of an arrest warrant for Defendant a week after he wrote the one for Mr. Greenwood. The account varies from the first arrest warrant affidavit. The primary difference is that in the first affidavit, Detective Reed affirmed | sthat Defendant covered Mr. Pil-cher; in the second, Detective Reed wrote that Defendant held Mr. Pilcher down.

On redirect examination, Detective Reed said he wrote the affidavit in support of arresting Mr. Greenwood after speaking to Defendant, and he issued the affidavit supporting the arrest of Defendant after he discussed Defendant’s statement with Mr. Pilcher. The additional information required the corrections to the information contained in the first affidavit.

The State’s sixth witness was the victim, Mr. Pilcher. In 2007, he was working for a landscaping company in Alexandria. He went out with a friend and some coworkers the Friday night before October 20, 2007. He and his companions eventually went to GG’s where he spent most of the evening playing pool with a friend.

Mr. Pilcher said his friend Roberto was the first person who started talking to Defendant and Mr. Greenwood. Mr. Pil-cher entered the conversation, and they seemed to “hit it off.” Mr. Pilcher and the two men exchanged names and cell phone numbers. Near closing time, Mr. Greenwood realized his cell phone was missing, so Mr. Pilcher allowed Mr. Greenwood to use his cell phone to call the lost phone.

Mr. Pilcher testified he went to his vehicle in the parking lot, and he saw Defendant and Mr. Greenwood leaving in a black truck. Mr. Pilcher related that he had his wife’s cell phone in his truck. Mr. Pilcher used his wife’s phone to call his cell number and ask for his phone back. The men told him where to meet them, so he went to meet Defendant and Mr. Greenwood to retrieve his phone.

Mr. Pilcher explained that when he arrived at the designated location, he saw the black truck parked in the middle of the road, so he “pulled up” to within five feet, | nturned off his engine, and exited his vehicle. Mr. Pilcher went to the window of the other truck and asked for his phone. Mr. Greenwood said Mr. Pilcher would not receive his phone until Mr. Greenwood’s was returned. Mr. Pilcher protested that he did not have Mr. Greenwood’s phone and that Mr. Greenwood was accusing the wrong person of having the device. Mr. Greenwood, who had an assault rifle across his lap, then pointed it at Mr. Pilcher. Defendant pushed it down and instructed Mr. Greenwood to not shoot inside the truck. Mr. Greenwood exited the truck and walked around to where Mr. Pilcher was standing.

Mr. Pilcher explained that Mr. Greenwood began yelling at him and asking for his cell phone. When Mr. Pilcher maintained he did not have the phone, Mr. Greenwood put the barrel of the rifle in Mr. Pilcher’s face. In response, Mr. Pil-cher pushed down on the barrel. Mr. Greenwood then stepped back and fired the rifle between Mr. Pilcher’s feet. Mr. Pilcher became frightened and ran around the rear of the truck, as Mr. Greenwood followed. Mr. Pilcher stopped, turned back, and grabbed the rifle. A struggle ensued between Mr. Pilcher and Mr. Greenwood until Defendant struck Mr. Pil-cher from behind, placed him in a choke-hold, and held a pistol to his head.

Once Mr. Pilcher was in the chokehold, he stopped fighting over the weapon. Defendant then placed Mr. Pilcher into a wristlock and maneuvered him into a position where he was facedown on the ground. Mr. Pilcher was immobilized from the excruciating pain of the wristlock. Defendant knelt on Mr. Pilcher’s back and placed one knee on his neck and the other in a position to maintain the wristlock. Defendant also put a hand on Mr. Pilcher’s back.

| inMr. Pilcher said that while Defendant was still holding him to the ground, Mr. Greenwood walked around and kicked Mr. Pilcher in the face. Defendant then instructed Mr. Greenwood to retrieve a knife from the truck. Thereafter, every time Mr. Pilcher cried, whimpered, or denied having the cell phone, he felt a blow on his hand. At the time, he did not know he was being stabbed, because his face was turned away from where the men were holding his hand. During this phase of the attack, Defendant shifted to sit on Mr. Pilcher’s back. Mr. Pilcher thought it was Defendant who was damaging his hand because he could see Mr. Greenwood standing to his right, within his field of vision. Mr. Pilcher did not hear either man attempt to aid him, and neither man offered any reassuring words.

Mr. Pilcher recalled Defendant removing Mr. Pilcher’s wallet from his back pocket. After taking Mr. Pilcher’s wallet, Defendant threatened that, after they were finished with Mr. Pilcher, they would do the same things to Mrs. Pilcher. Mr. Pilcher thought the men might have seen the photograph of his wife that he used as a background on his cell phone screen. Besides the injuries to his hand, Mr. Pil-cher had a cut on his right pinky finger and a long slit on his forehead, which had been inflicted when Defendant, who was sitting on Mr. Pilcher’s back, pulled back Mr. Pilcher’s head and sliced him with the knife across the forehead.

Mr. Pilcher related that, as Defendant punctured Mr. Pilcher’s neck with the knife and insisted that he was going to cut off Mr. Pilcher’s ear, Mr. Greenwood approached and stated that he thought he heard a car nearby. The two men “freaked out” and let Mr. Pilcher sit up while they prepared to move both trucks out of the road. Before they walked off, Mr. Greenwood reared back and struck Mr. Pilcher on the forehead with the rifle. Mr. Pilcher laid down and rolled over onto his side at the hi edge of the ditch. When Mr. Pilcher heard his truck crank, he sprang to his feet and ran off into the woods.

Exhausted, Mr. Pilcher stopped running and took refuge in some bushes by a fallen tree. Mr. Pilcher stayed by the tree until he saw daylight. When it was light enough for him to see, he started working his way toward the highway. En route to the road, he encountered a deer hunter, Mr. Cass, out with his son, so Mr. Pilcher started crying and calling for help. Mr. Cass then drove Mr. Pilcher to a local hospital.

Detective Reed took a statement from him at the hospital. Mr. Pilcher thought he probably did not give Detective Reed a complete statement at the time because he was traumatized and embarrassed about some of the details because his wife was in the room.

Thomas Normand, with the Rapides Parish Sheriffs Office, was the first witness to testify for the defense. Deputy Normand received a call from Defendant around 5:00 a.m. on the morning of October 20, 2007. Defendant told Deputy Normand that he had witnessed a fight and was worried that it would affect his job. Deputy Normand went to Defendant’s house a couple of days after the call, and, while there, spoke to Defendant, who denied being involved in the beating. Deputy Normand did not recall Defendant saying he tried to help the victim, but he did remember Defendant saying that he had not tried to hurt the man. On cross-examination, Deputy Normand explained that Defendant did not ask him to involve emergency services, that Defendant did not tell him they left the man hurt in the woods, and that Defendant did not mention a robbery or a stabbing. The purpose of Defendant’s call to Deputy Normand did not include seeking assistance for Mr. | lüPilcher. Over the telephone, Defendant sounded nervous, confused, disoriented, freaked out, and possibly drunk. Defendant was primarily worried that he would get into trouble.

Dr. John C. Simoneaux, an expert in forensic psychology, was another witness for the defense. Dr. Simoneaux examined the medical records in the instant case and the report prepared by Dr. Lonowski, an expert in clinical and forensic psychology. Dr. Simoneaux also interviewed and tested Defendant. Dr. Simoneaux agreed with Dr. Lonowski’s diagnosis that Defendant suffered from post-traumatic stress disorder (“PTSD”), major depression, and alcoholism. Defendant reported to Dr. Simo-neaux that he took protective action for both himself and the victim during the incident. Although Dr. Simoneaux could not tell whether Defendant’s account was truthful, it seemed to be credible because it was fairly consistent. Dr. Simoneaux concluded Defendant’s judgment was impaired by extreme intoxication. Although the incident provoked anxiety, Defendant’s acute recall of the incident showed there was no disassociation. Dr. Simoneaux read his conclusion:

the incident in question was a very anxiety provoking event, but it did ... not ... put Brock in a position where he was unaware of the wrongfulness of his acts. At the time of the alleged offense[,] Brock detailed various actions that he took that suggested] very clearly he understood the situation he was in even though he was anxious and intoxicated, he took protective actions for both himself and others.

On cross-examination, Dr. Simoneaux maintained that the incident did not put Defendant in a position where he was unaware of the wrongness of his actions. Dr. Simoneaux did not believe that Defendant had a psychotic disassociative episode. Defendant was certainly not psychotic and knew that the events constituted criminal activity. The actions Defendant described himself as taking were almost heroic. He clearly knew right from wrong at the time. This conclusion was supported by the | ^-¡actions Defendant took that showed he was aware of the matter’s legal implications. His lack of judgment seemed to arise more from his voluntary intoxication than his PTSD.

Defendant then testified in his own defense. Defendant enlisted in the Air National Guard in 2003, and he was activated to duty during Hurricane Katrina in 2005. After Hurricane Katrina, he was offered an active duty position in the Guard Reserve for the Louisiana International Guard in Alexandria.

Defendant said he had been shot at during his deployment for Hurricane Katrina and was considered a disabled veteran because of his PTSD. Defendant started drinking heavily after Hurricane Katrina, and since then, he sought treatment for his alcohol problem. Defendant had been confined to three different hospitals on three different occasions since the incident.

Defendant said he met Mr. Greenwood either the evening of the incident or the day before. Defendant’s first impression of Mr. Greenwood was that Mr. Greenwood was a good guy, so they decided to go out together and ended up at GG’s Club where they met Mr. Pilcher. Defendant was intoxicated. Defendant, Mr. Greenwood, and Mr. Pilcher conversed about guns and video games. Defendant and Mr. Greenwood drunkenly argued about who was a better shot, so they decided to go shoot guns in the woods later that evening. Mr. Pilcher planned to follow them there.

Defendant said that, around closing time, Mr. Greenwood realized he lost his cell phone. At first, Mr. Greenwood was upset, but it was not “too dramatic.” Defendant let Mr. Greenwood borrow his phone to call the lost device.

Defendant explained that they then went to Messina Road in the Kisatchie National Forest where they waited for Mr. Pilcher. Defendant said that after Mr. _J_yPilcher stopped in the road, he exited his truck and walked toward the driver’s side of Defendant’s vehicle. Mr. Greenwood asked Mr. Pilcher about the missing phone while Defendant exited his truck. Defendant stated that he then walked in front of Mr. Pilcher’s truck to “use the bathroom” and smoke a cigarette. Mr. Pilcher and Mr. Greenwood talked while Defendant was otherwise occupied. Defendant heard a gunshot and dropped to the ground. When he stood back up and turned around, Defendant saw Mr. Greenwood aiming a smoking rifle barrel in his and Mr. Pil-cher’s direction. Defendant responded by inserting himself between Mr. Pilcher and Mr. Greenwood and taking Mr. Pilcher “into cover.” This entailed forcing Mr. Pilcher to the front of Mr. Pilcher’s vehicle and falling on top of him. Defendant asserted that, before he reached Mr. Pilcher, Mr. Greenwood struck Mr. Pilcher in the head with a gun.

Defendant recounted that the situation then calmed down. Mr. Greenwood handed Defendant the rifle. Defendant immediately unloaded the firearm. He thought the incident was over, so he stood up and returned the rifle to his truck. When he turned around, he saw Mr. Greenwood on top of Mr. Pilcher. Defendant then observed Mr. Greenwood cut Mr. Pilcher’s head and stab him around his ear and eye. Defendant continued that he ran toward the pam, pushed Mr. Greenwood off Mr. Pilcher, and put his own body back on top of Mr. Pilcher.

Defendant related that Mr. Greenwood returned with the rifle and held it over both Defendant’s and Mr. Pilcher’s heads. Mr. Greenwood instructed Defendant to give him Mr. Pilcher’s wallet, and Defendant complied. Defendant professed that he took Mr. Pilcher’s wallet because he feared for his own life:

While the weapon was being pointed, it was being pointed at both of us, because he was waving it over our heads, because Josh was laid down ] 1F)and I was laid down on top of him. And at that moment, I felt that I was in fear of my own life as well, because ... I was scared and I had no idea ... who this guy was, like who Greenwood was. I mean, I knew him for a day[.]

Defendant said Mr. Greenwood suddenly stopped what he was doing and walked away. Defendant followed him and found Mr. Greenwood talking on a cell phone on the other side of Defendant’s vehicle. Defendant took the weapon from Mr. Greenwood, put it back in his truck, and told Mr. Greenwood to leave Mr. Pilcher alone. Mr. Pilcher ran away, and Mr. Greenwood pursued. Mr. Greenwood also fired a couple of shots after Mr. Pilcher. Though Mr. Greenwood stated and restated that they had to kill Mr. Pilcher, Defendant insisted they leave, so they left after Mr. Greenwood wiped down the interior of the truck. Once he reached his home, he called Thomas Normand, who worked as a corrections officer for the Rapides Parish Sheriffs Office.

Finally, Defendant maintained that his actions had been designed to protect Mr. Pilcher and himself. They had not been designed to harm Mr. Pilcher. Defendant felt as if he were also in danger.

On cross-examination, Defendant agreed that there was a time during the incident after Mr. Greenwood handed him the rifle where Defendant was holding it while Mr. Greenwood was unarmed. Defendant also knew that Mr. Pilcher’s life was in danger while Mr. Greenwood had the rifle, but he felt that the danger passed once Defendant obtained possession of the weapon and unloaded it. Defendant blamed his intoxication for his failure to use the loaded rifle to take charge of the situation as well as for his failure to get off of Mr. Pilcher at the time in order to allow Mr. Pilcher to escape. Defendant said he thought Mr. Pilcher was a liar and had lied about | ^Defendant’s involvement in the offenses. Defendant did not know what would motivate Mr. Pilcher to lie at trial.

Dr. Daniel Lonowski next appeared as a defense witness. Dr. Lonowski opined that Defendant suffered from PTSD as well as alcohol dependence arising from his attempts to cope with the symptoms of PTSD and depression.

Dr. Lonowski related that Defendant had given him a clear, concise, and consistent account of what had happened on the evening of the incident. Defendant stated that he had acted to protect Mr. Pilcher. Defendant never deviated from the concept of protection. Dr. Lonowski explained that he had never before seen or heard of a report where the cruel and vicious behavior exhibited during the offenses was attributed to Defendant, so his findings were based solely on Defendant’s account that he was acting to protect Mr. Pilcher. In addition to the alcoholism and PTSD, Dr. Lonowski found Defendant had a diminished capacity to make reasoned decisions. Dr. Lonowski thought Defendant only developed an understanding of wrongdoing after the fact.

On cross-examination, Dr. Lonowski explained that he did not think Defendant had criminal intent during the offenses though Defendant behaved in a criminal manner by putting his hands on the victim and restraining him. Dr. Lonowski reiterated that he did not think Defendant had an awareness that his actions could be construed as wrong until after the fact. Defendant felt he was doing the right thing at the time.

Mr. Pilcher was called to testify in rebuttal. Mr. Pilcher asserted he had no reason to lie against Defendant. He had never met Defendant before, and no one had threatened or intimidated him into giving his testimony. Mr. Pilcher maintained that |]7Pefendant was the person who robbed him, cut him, hit him, and cursed him. Mr. Pilcher heard Defendant’s testimony and recognized his voice from the night of the crimes. While Mr. Pilcher was lying on the ground whimpering and crying, Defendant leaned down and threatened to kill him if he did not “shut up.”

Mr. Pilcher declared that he had been as truthful as he possibly could:

I’m telling you everything as well as I can remember how it went down. I mean, there’s details that I know I probably forgot to mention, or there’s details that know I’ve mentioned that I forgot to mention in my report — in the — in the report to the officers. But everything that I’m telling right now is, I mean, is truth and has always been the truth.

On February 1, 2010, the trial court found Defendant guilty as charged without issuing reasons for its ruling.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent; however, the sentencing minutes require correction.

The sentencing minutes indicate Defendant’s ten-year sentence for aggravated second degree battery was imposed without benefit of parole, probation, or suspension of sentence; however, the sentencing transcript contains no such restriction on benefits. When the transcript and court minutes conflict, the transcript prevails. State v. Colton, 07-252 (La.App. 3 Cir. 10/31/07), 968 So.2d 1239, writ denied, 07-2296 (La.4/25/08), 978 So.2d 364. Additionally, we note that there is no restriction on benefits required by La.R.S. 14:34.7. Thus, the trial court is instructed to delete the provision in the sentencing minutes which states that Defendant’s sentence is to be without benefit of parole, probation, or suspension of sentence.

¡^DISCUSSION:

Defendant argues, “[t]he trial court erred in finding that the evidence was sufficient to prove the defendant was guilty.” Defendant urges that the State failed to satisfy its burden of proving general criminal intent to commit the armed robbery and specific criminal intent to commit the aggravated second degree battery. Defendant maintains that the evidence shows he acted only to protect the victim. Therefore, Defendant asserts his actions were justified based upon his subjective belief that he was acting to protect both the victim and himself.

In his second assignment of error, Defendant asserts, “[t]he trial court erred in rejecting uncontradicted expert testimony as to the issues of intent and justification as a defense.” Defendant adds that the uncontested testimony of the defense’s psychological experts successfully refuted any inference of criminal intent. Defendant maintains that the evidence shows he acted only to protect the victim.

The State responds that Defendant’s actions were those of a full participant in the offenses rather than someone acting to protect the victim. The State asserts that the facts do not fit a justification or necessity defense. The State adds, moreover, that the facts support the trial court’s determination.

CREDIBILITY DETERMINATIONS:

Defendant argues that the trial court should have believed the testimonies given by him and his psychologists over the account given by the victim in the matter. It is not the function of the appellate court to reassess credibility of witnesses or reweigh evidence:

[The supreme court has] repeatedly cautioned that due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second |inguess the credibility determinations of the fact finder necessary to render an honest verdict. A reviewing court may intrude on the plenary discretion of the fact finder “only to the extent necessary to guarantee the fundamental protection of due process of law.”

State v. Calloway, 07-2306, p. 10 (La.1/21/09), 1 So.3d 417, 422 (citations omitted). “The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness[.]” State v. Higgins, 03-1980, p. 17 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). “Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence.” State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 289, 169 L.Ed.2d 179 (2007).

Although there may have been some inconsistencies between Mr. Pilcher’s prior statements and his testimony, Defendant’s report of the event also contained discrepancies. For example, Defendant asserted that, after he unloaded the firearm and returned it to the truck, Mr. Greenwood used the rifle to intimidate him into taking Mr. Pilcher’s wallet. Defendant asserted he was afraid for his life, when he had already removed the ammunition. Further, Mr. Pilcher had no motive to lie; however, Defendant’s freedom rested upon his ability to convince the trial court of his version of events. Both of the psychologists who testified at trial stated that their conclusions had been based solely upon the account of events given by Defendant and did not include any other versions of the incident. Moreover, Dr. Simoneaux clearly expressed that Defendant knew the difference between right and wrong at the time of the crimes.

Defendant presented a justification defense by testifying that he acted only to protect Mr. Pilcher, but the district court clearly did not believe Defendant. Instead, | j>nthe trial court believed Mr. Pil-cher’s version of events. Mr. Pilcher’s testimony showed that, rather than protecting Mr. Pilcher, Defendant was the person who committed the crimes while Mr. Greenwood stood nearby and occasionally assisted. As it is not clearly contrary to the evidence, the trial court’s credibility determination was within the bounds of rationality. Thus, the trial court’s finding of credibility did not constitute an abuse of discretion.

SUFFICIENCY OF THE EVIDENCE:

The defense also asserts that the prosecution failed to meet its burden of proving Defendant committed the offenses for which he was convicted. The Louisiana Supreme Court has discussed the standard of review for evaluating the sufficiency of the evidence on appeal:

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (citations omitted).

Defendant challenges his conviction for aggravated second degree battery, which is defined as follows:

(1) Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.
(2) For the purposes of this Section, “serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or 121 protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

La.R.S. 14:34.7(A). “Battery is the intentional use of force or violence upon the person of another....” La.R.S. 14:33.

The evidence most favorable to the prosecution shows that Defendant put Mr. Pil-cher in a chokehold, forced him facedown on the ground, restrained him in that position, had Mr. Greenwood retrieve a knife from his truck, and then used the knife to stab Mr. Pilcher repeatedly in the hand as well as cut Mr. Pilcher’s face and head. Mr. Pilcher cried and whimpered during the attack. At the time of trial, Mr. Pil-cher had multiple scars on his hand from the attack; despite surgery, Mr. Pilcher never regained full function of his hand because his middle finger had lost sensation and strength. Additionally, at the time of trial, Mr. Pilcher continued to be mentally affected by the incident; he continued to dwell on and have nightmares about the matter.

Defendant also contests his conviction for armed robbery. “Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by the use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64(A). The evidence most favorable to the prosecution shows that, after stabbing Mr. Pilcher in the hand but prior to cutting Mr. Pilcher’s neck and threatening to cut off his ear, Defendant removed Mr. Pilcher’s wallet, containing identification and ten dollars, from his back pocket. Thus, the record shows that Defendant was still armed with the knife when he took Mr. Pilcher’s wallet.

_j2gln State v. Hampton, 38,017 to 38,020, p. 1 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, 287, unit denied, 04-834 (La.3/11/05), 896 So.2d 57, and writ denied, 04-2380 (La.6/3/05), 903 So.2d 452, the defendants were convicted of both aggravated second degree battery and armed robbery. Defendant Hargrove drove a vehicle up to the victim’s driveway and made a sudden stop, Defendant Hampton exited the passenger side of the automobile, aimed a pistol at the victim, and approached him demanding money. Id. at 288-89. Once near the victim, Hampton knocked the victim to the ground by striking him about the face and head several times with the pistol. Id. at 288. The blows created several large gashes on the victim’s forehead and nose. Id. When the victim was on the ground, Hampton took credit cards, a money clip, and cash from the victim’s pocket. Id. Hampton then returned to the passenger side of the vehicle, and Hargrove drove them away. Id. Based on the facts of the case, the second circuit found that a rational trier of fact could have found that the State proved the essential elements of the crimes beyond a reasonable doubt and affirmed the convictions for both of the defendants. Id. at 292.

Therefore, when viewed in the light most favorable to the prosecution, the State, in the current case, introduced sufficient evidence to prove the essential elements of both aggravated second degree battery and armed robbery beyond a reasonable doubt. Accordingly, Defendant’s assignments of error are without merit.

DECREE:

Defendant’s convictions and sentences are affirmed. The trial court is instructed to delete the provision in the sentencing minutes which states that Defendant’s sentence for aggravated second degree battery is to be without benefit of parole, probation, or suspension of sentence.

REAFFIRMED.


source: Caselaw Access Project

author: WALLER, Chief Justice, PIERCE, Justice,

license: Public Domain

text:
    Terrance EADDY v. STATE of Mississippi.
    No. 2009-KA-02035-SCT.
    Supreme Court of Mississippi.
    June 23, 2011.

      Office of Indigent Appeals by W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, John R. Henry, Jr., attorneys for appellee.
    Before WALLER, C. J., DICKINSON, P.J., and KITCHENS, J.
   WALLER, Chief Justice,

for the Court:

¶ 1. This case involves the search and seizure of evidence from Terrance Eaddy after officers had stopped him to execute arrest warrants for Wendell Barnes. Because the trial court committed clear error in denying Eadd/s motion to suppress, we reverse and render his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. A caller informed Claiborne County Sheriffs Department deputies James Jefferson and Willie Edwards that Wendell Barnes was in Port Gibson driving a red Cadillac with Texas plates. The officers knew Barnes had three arrest warrants. Soon, they happened upon a vehicle that fit the caller’s description and initiated an investigatory stop. The parties dispute the order of the remaining sequence of events, but ultimately, Officer Jefferson searched and arrested the driver, Terrance Eaddy, for possession of cocaine with intent to distribute and possession of a weapon by a convicted felon. Eaddy filed a motion to suppress evidence of the cocaine and the gun discovered in the search.

Motiorir-to-Suppress Hearing

¶ 3. Officer Jefferson provided the only testimony at Eaddy’s motion-to-suppress hearing. He explained that, on the day of Eaddy’s arrest, an unnamed informant had called Officer Edwards on his personal cell phone and had stated that Wendell Barnes was in town driving a red Cadillac with Texas plates. Officer Edwards had related the caller’s information to Officer Jefferson. Both officers knew that Wendell Barnes had three arrest warrants, but only Officer Edwards could identify Barnes. Eventually, the officers stopped a vehicle fitting the caller’s description. According to Officer Jefferson, when he approached the car, he saw the butt of a gun under the driver’s seat, smelled alcohol, and saw an empty liquor bottle. So, he took the driver from the vehicle to pat him down for officer safety. During the search, he discovered two pill bottles that each appeared to hold cocaine. He explained that one pill bottle contained a “white substance” separated into individual bags, and the other bottle contained a white substance cut into blocks. After he had conducted the search, Officer Edwards told him the suspect was not Barnes.

¶ 4. On cross-examination, Eaddy’s counsel pointed out that Officer Jefferson’s arrest report contained a different version of the events. In his report, Officer Jefferson explained that he had “noticed” the driver was not Wendell Barnes after he had asked him to exit the car. But since he had seen a liquor bottle by the driver’s seat, he had frisked the driver for his safety. Officer Jefferson’s report further explained that, after finding the two pill bottles with cocaine, he then had handcuffed Eaddy, had searched the car, and had discovered the gun. Aside from the report, Eaddy’s counsel questioned Officer Jefferson as to the validity of Barnes’s arrest warrants.

¶ 5. Officer Jefferson attempted to clarify the differences between his report and his testimony before the court. He explained that his report stated when he had told Eaddy that he had seen the gun and not when he actually had seen it. In other words, although his report indicated that the liquor bottle had prompted the protective search, the gun was actually the reason. Thus, Officer Jefferson did not collect the liquor bottle from the car, and Eaddy was not charged with driving under the influence. He further explained that “any time you stop a car, you’re going to search the individual and get [him] out of the car for officer safety.”

¶ 6. In ruling on Eaddy’s motion to suppress, the court recognized that Officer Jefferson’s report recounted a different version of the events; typically, an officer’s report would clearly reflect that the presence of a firearm had raised the officer’s suspicion. But the trial court noted that an arrest report does not represent the officer’s entire description of the arrest, and that no evidence contradicted Officer Jefferson’s testimony before the court. More specifically, the court found that the officers had acted on a warrant in stopping the vehicle. After Officer Jefferson had seen a firearm and had smelled alcohol, he had conducted a protective search for his safety. Therefore, the court denied Ead-dy’s motion to suppress evidence of the cocaine and the gun derived from the search.

Eaddy’s Trial

¶ 7. Officer Jefferson provided the same testimony regarding the incident at Ead-dy’s trial. Additionally, Eaddy gave his version of the search and arrest. According to Eaddy, on the day of his arrest, he had been dating Wendell Barnes’s sister, Thandiwe. When Thandiwe had picked him up in Wendell’s car for lunch that day, Eaddy explained that he did not see any drugs or a gun when he entered the car. On their way to lunch, the officers pulled them over. According to Eaddy, Officer Jefferson never asked him his name during the encounter. Eaddy explained, in relevant part, that he did not have any drugs on him and that if he had possessed drugs on his person, he would have disposed of them before a police search. Instead, Eaddy testified that Officer Jefferson had removed both the gun and the drugs from the car. Eaddy implied that Officer Edwards had encouraged Officer Jefferson to misrepresent where he had found the drugs.

¶ 8. The State called Officer Edwards to rebut Eaddy’s accusations. Officer Edwards explained that he did not ask Officer Jefferson to misrepresent where he had found the drugs. Officer Edwards further testified that after they had made the traffic stop and had approached the car, he had told Officer Jefferson that Wendell Barnes was not in the car. In other words, Officer Edwards had identified Eaddy as the driver before Officer Jefferson had conducted the search.

¶ 9. The jury found Eaddy guilty of possession with intent to distribute and acquitted him of possession of a weapon by a felon. Eaddy was sentenced to fifteen years in the custody of the Mississippi Department of Corrections. The court denied Eaddy’s Alternative Motion for a JNOV or a New Trial, and Eaddy appealed.

ISSUES

¶ 10. Eaddy asserts the following issues, which we have rephrased for clarity:

I. Whether the trial court erred in denying Eaddy’s motion to suppress.
II. Whether the trial court erred in denying Eaddy’s motion for a directed verdict or JNOV where the State provided insufficient evidence on the intent to distribute.

As the first issue decides Eaddy’s appeal, we decline to address the second issue. See M.R.A.P. 17(h).

DISCUSSION

¶ 11. The Court applies a mixed standard of review to Fourth-Amendment claims. Dies v. State, 926 So.2d 910, 917 (Miss.2006). Whether probable cause or reasonable suspicion exists is subject to a de novo review. Id. But the Court limits the de novo review of the trial court’s determination to “historical facts reviewed under the substantial evidence and clearly erroneous standards.” Id.

¶ 12. Both the Fourth Amendment to the United States Constitution and Article III, Section 23 of the Mississippi Constitution protect an individual’s right to be free from unreasonable searches and seizures. Id. at 917-18. See also U.S. Const, amend. IV; Miss. Const, art. 3, § 23; Graves v. State, 708 So.2d 858, 861 (Miss.1997) (noting that Mississippi’s constitution provides greater protection from unreasonable search and seizure than the federal constitution). The Court uses a two-part inquiry to determine the reasonableness of a search and seizure: “(1) whether the officer’s action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Gonzales v. State, 963 So.2d 1138, 1141 (Miss.2007). As a general rule, the state and federal constitutions prohibit warrantless searches unless an exception applies. Id. at 1142. Unless the State proves that a warrantless search comes within an exception, all evidence seized from the search is inadmissible. Jackson v. State, 418 So.2d 827, 829 (Miss.1982). We address the investigatory stop and good-faith exceptions as they relate to the sequence of events in Eaddy’s search and arrest.

I. Investigatory Stops

¶ 13. Eaddy argues that the trial court erred in not making findings on the informant’s reliability, and that information from an unnamed informant with undisclosed reliability does not establish reasonable suspicion for an investigatory stop. In response, the State contends that Officer Jefferson’s personal knowledge of Barnes’s warrants provided reasonable suspicion for the investigatory stop.

¶ 14. Police officers may detain a person for a brief, investigatory stop consistent with the Fourth Amendment when the officers have “reasonable suspicion, grounded in specific and articulable facts ...” that allows the officers to conclude the suspect is wanted in connection with criminal behavior. Walker v. State, 881 So.2d 820, 826 (Miss.2004) (citation omitted). See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Maddox v. State, 636 So.2d 1229, 1234 (Miss.1994) (citation omitted) (“Vehicles also may be the subject of an investigative stop.”).

¶ 15. Grounds for reasonable suspicion to make an investigatory stop generally come from two sources: either the officers’ “personal observation” or an informant’s tip. Williamson v. State, 876 So.2d 353, 355 (Miss.2004) (citation omitted). See also Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The officer’s personal observation includes information from other law-enforcement personnel. See Dies, 926 So.2d at 920 (“[Rjeasonable suspicion ... can be transferred from officer to officer....”). And an informant’s tip may provide reasonable suspicion if accompanied by some indication of reliability; for example, reliability may be shown from the officer’s independent investigation of the informant’s information. Florida v. J.L., 529 U.S. at 270, 120 S.Ct. 1375. See, e.g., McClellan v. State, 34 So.3d 548, 552 (Miss.2010) (valid investigatory stop where officers further investigated “vague” information received from informant before making the stop); Burchfield v. State, 892 So.2d 191, 194-95 (Miss.2004) (reasonable suspicion for investigatory stop supported by store clerk’s tip that described defendants who had purchased precursors and by officer’s personal observation of defendants’ purchases in vehicle described by clerk); Williamson, 876 So.2d at 356 (reasonable suspicion for investigatory stop supported by tip from unnamed informant that described, in relevant part, the defendant and his vehicle and tag number, and by officer’s subsequent verification of number).

¶ 16. But the scope of an investigatory stop is limited. Floyd v. State, 500 So.2d 989, 992 (Miss.1986). The scope of a search or seizure must relate to the initial circumstances that called for police action. Haddox, 636 So.2d at 1234. Thus, when police detention exceeds the scope of the stop, the stop becomes a “seizure,” and the State must show probable cause. Floyd, 500 So.2d at 992 (citation omitted).

¶ 17. Based on the evidence in the record, the trial court committed clear error in finding that the officers had reasonably relied on the arrest warrants in making the investigatory stop. Here, although Officer Edwards had personal knowledge of Wendell Barnes’s identity and both officers knew about his arrest warrants, the record does not reflect that either officer knew the description of Barnes’s vehicle before making the stop. See Dies, 926 So.2d at 920. Absent further independent investigation, Barnes’s arrest warrants did not provide reasonable grounds to justify a stop of the red Cadillac with Texas plates. See McClellan, 34 So.3d at 552; Haddox, 636 So.2d at 1234. Barnes’s warrants also did not provide reasonable grounds to justify a stop of Eaddy beyond what was necessary for Officer Edwards to clarify his identity. Haddox, 636 So.2d at 1234.

¶ 18. Even if we consider the officers’ observations with the informant’s information, we still would conclude that they lacked reasonable suspicion to make an investigatory stop. The facts here differ from this Court’s other cases involving informant tips. See, e.g., McClellan, 34 So.3d at 552; Burchfield, 892 So.2d at 194-95; Williamson, 876 So.2d at 356. Unlike the officers in McClellan, Officers Jefferson and Edwards acted, without independent investigation, on the caller’s vague description of Barnes’s vehicle. McClellan, 34 So.3d at 552. And, unlike the trial court in Williamson, the court made no findings regarding the reliability of the anonymous caller’s information. Williamson, 876 So.2d at 356. Therefore, we hold that the trial court committed clear error in finding that Barnes’s arrest warrants provided reasonable suspicion to stop and search Eaddy. Dies, 926 So.2d at 917.

II. Good Faith

¶ 19. We now address the State’s contention that the officers, although mistaken, initiated the investigatory stop on a good-faith belief that Wendell Barnes, the owner of the red Cadillac, would be driving the vehicle. Citing Cole v. State, 8 So.3d 250 (Miss.Ct.App.2008), the State contends that “[t]he fact that Barnes turned out not to be in the car is therefore inconsequential. ...”

¶ 20. In Cole v. State, after the officer saw the defendant speeding, he called in the defendant’s tag number to a dispatcher, who informed the officer that the tag had expired. Id. at 252. Because the officer reasonably relied on the dispatcher’s faulty information, the Court of Appeals determined his good-faith, mistaken belief did not invalidate his reasonable suspicion to stop the defendant for an expired tag. Id. at 255. Regardless, the officer’s mistaken belief as to the tag had no effect on his reasonable suspicion to stop the defendant for speeding. Id.

¶ 21. While instructive, Cole does not set forth Mississippi’s law on the good-faith exception, and the State’s brief does not address this Court’s precedent on that exception. In White v. State, we adopted the Leon good-faith exception to the exclusionary rule. White v. State, 842 So.2d 565, 570-73 (Miss.2003) (invalidating telephonic search warrants but finding that the exclusionary rule should not apply to evidence seized pursuant to such warrants, because the officers thought the procedure was valid); United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See also Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 708-09, 172 L.Ed.2d 496 (2009) (holding that exclusionary rule did not apply where officer had arrested defendant on warrants that should have been recalled). But we intimated that this exception to exclusion should apply only in unique circumstances, such as where the officer’s reliance on an invalidated search warrant was “objectively reasonable.” White, 842 So.2d at 577 (citation omitted). The Court further explained:

[W]e admonish all law enforcement officers and prosecutors to understand that our adoption today of the Leon “good faith” exception should not be interpreted, in any way, as an opportunity for them to be less diligent or less thorough in following the mandates of the United States Constitution, the Mississippi Constitution, or case law interpretations thereof, regarding search and seizure.

Id. at 576.

¶ 22. Under Mississippi Rule of Appellate Procedure 28, the Court has no duty to address the State’s contentions on the good-faith exception. M.R.A.P. 28. Nevertheless, neither Cole nor the good-faith exception precludes the exclusionary rule. The State’s reliance on Cole incorrectly assumes that Officer Jefferson personally knew the type of car that Wendell Barnes drove. Even if Officer Jefferson mistakenly had relied on the caller’s description of the car, he repeatedly testified that he did not know Barnes’s identity. Unlike the officer in Cole, Officer Jefferson unreasonably continued to execute arrest warrants for an individual he did not know without verifying the suspect’s identity.

¶ 23. Under the White/Leon good-faith exception, the relevant inquiry turns to whether the officers reasonably relied in good faith on an invalid search warrant. Assuming without deciding that the same principles extend to arrest warrants, the exception might have applied had the officers arrested Wendell Barnes. See White, 842 So.2d at 577; Herring, 129 S.Ct. at 708-09. In other words, the exception applied in White, because the officers were mistaken as to the validity of the warrant and not the area to be searched. See White, 842 So.2d at 577.

¶24. Moreover, White does not sanction the good-faith exception where the officer is mistaken about the suspect’s general right to be free from unreasonable searches. White, 842 So.2d at 576-77. Notably, Officer Jefferson testified at the motion hearing and at trial that stopping a ear, without more, authorized the officer to search the occupant for officer safety. And his arrest report premised the protective search on the presence of a liquor bottle. Neither standard meets constitutional requirements. Finally, Officer Edwards testified that he had informed Officer Jefferson of the suspect’s identity before the search. The misinterpretation of constitutional mandates, the contradictory information in the arrest report and testimony, and the failure to resolve the suspect’s identity and act accordingly render the good-faith exception inapplicable.

¶ 25. Based on the above discussion, we decline to address either party’s arguments regarding the protective-frisk, plain-view, or plain-feel exceptions. See M.R.A.P. 17. Because Wendell Barnes’s arrest warrants and the caller’s uninvesti-gated information failed to create reasonable suspicion to justify an investigatory stop of Eaddy or the vehicle, the trial court’s determination cannot withstand the substantial-evidence standard. Dies, 926 So.2d at 920. Even if we find that the stop was justified at its inception, the officers exceeded the scope required to resolve the driver’s identity. Gonzales, 963 So.2d at 1141. Since the evidence against Eaddy is insufficient to sustain a conviction for possession with intent to distribute without admission of evidence of the illegally obtained cocaine, we reverse and render. White v. State, 735 So.2d 221, 225 (Miss.1999).

CONCLUSION

¶ 26. In sum, Wendell Barnes’s arrest warrants and the caller’s information did not provide reasonable grounds to justify the investigatory stop and subsequent search and seizure of evidence from Ead-dy. Further, the officers could not reasonably have relied in good faith on Barnes’s arrest warrants to arrest Eaddy. Therefore, the trial court should have granted his motion to suppress. Because the evidence against Eaddy is insufficient to sustain a conviction for possession with intent to distribute without the admission of evidence of the illegally obtained cocaine, we reverse and render a judgment of acquittal. The appellant is therefore discharged.

¶ 27. REVERSED AND RENDERED.

DICKINSON, P.J., KITCHENS, CHANDLER AND KING, JJ., CONCUR. PIERCE, J., DISSENTS WITH

SEPARATE WRITTEN OPINION JOINED BY CARLSON, P.J., RANDOLPH AND LAMAR, JJ.

PIERCE, Justice,

Dissenting:

¶ 28. Because the trial court’s findings were supported by substantial credible evidence, it did not err in denying Eaddy’s motion to suppress. Accordingly, I would affirm Eaddy’s conviction and sentence. Therefore, I respectfully dissent.

¶ 29. In deciding whether the trial court erred in denying Eaddy’s motion to suppress, the Court “must determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence.” The majority highlights inconsistencies between the evidence presented at the motion-to-suppress hearing and that which was presented at trial. But we should not look at the evidence presented at trial in deciding whether the trial court erred at the motion-to-suppress hearing, unless contrary evidence is presented at trial and the defendant moves to suppress in light of such evidence not previously considered by the court, and asks the court to reconsider the “totality of the circumstances.”

The investigatory stop

¶ 30. At the hearing, the trial court was presented with the sworn testimony of Jefferson, the arresting officer, coupled with his report. Jefferson testified that, on the day of the arrest Edwards had received a personal phone call that Barnes was in town and “driving a red Cadillac with Texas plates that had warrants on it.” Jefferson further recounted that both he and Edwards had personal knowledge of Barnes’s outstanding warrants, and that “we check warrants every day.” He noted that he did not know Barnes, but that Edwards did. On cross-examination, Jefferson stated that someone had called Edwards with the tip because “[t]hey knew we had warrants on him.” Jefferson testified that he and Edwards had spotted a red Cadillac with a Texas license plate, and had pulled it over.

¶ 31. The defense did not call any witnesses at the hearing, nor did Eaddy testify. It did, however, argue that the stop was unlawful, and that Jefferson’s testimony was at odds with his report. Jefferson’s testimony was otherwise uncontested. The trial court found, based on the evidence presented at the hearing, that Jefferson’s actions were justified.

¶ 32. A reasonable cause for an investigatory stop may be based on an officer’s personal observation or on an informant’s tip, if it bears indicia of reliability. “Indi-cia” is defined as “circumstances which point to the existence of a given fact as probable, but not certain.” The fact that the caller knew that Barnes had outstanding warrants, and that the police were looking for him, demonstrates that the caller had a special familiarity with Barnes’s affairs. Further, the caller described the vehicle Barnes would be driving as a “red Cadillac [sic] with Texas plates.” The color and make of the vehicle, coupled with the fact that the car had a “Texas plate” in the small town of Port Gibson, Mississippi, arguably set it apart from most, if not all, vehicles in that area. The officers’ independent knowledge of Barnes’s arrest warrants, together with the tip, exhibited sufficient indicia of reliability to justify an investigatory stop.

¶ 33. The tips provided in McClellan v. State and Burchfield, v. State were similar to the one provided here, with regard to the descriptions of the vehicles. In Burchfield, the police were informed by a store clerk that two white males in a Cadillac with Arkansas plates had each purchased a quantity of pills containing pseu-doephedrine and were leaving the parking lot, westbound on Goodman Road from Highway 51. In McClellan, the police received information that a man and woman had left a store in an older-model blue automobile, and that the vehicle was last seen traveling east on the Highway 82 bypass. Here, the caller informed Edwards that Wendell Barnes was in town and “driving a red Cadillac with Texas plates that had warrants on it.” Edwards relayed this information to Jefferson. Notably, both officers had personal knowledge concerning Barnes’s warrants, and Edwards knew Barnes personally. The officers in McClellan and Burchfield did not have any personal knowledge of the alleged criminal activity, and thus took an additional step to corroborate the information provided by the caller before pulling over the vehicle. Indeed, the standard for reasonable suspicion requires as much when the officer lacks any personal knowledge about the alleged criminal activity. But where, as here, an officer has personal knowledge that an individual is wanted in connection with a felony and has been successfully evading arrest, coupled with a tip saying as much and providing a detailed description of the car the individual is driving, the standard for reasonable suspicion has been met. Thus, under the totality of the circumstances, the officers had as much information as the officers in McClellan and Burchfield, and therefore had reasonable suspicion to make an investigatory stop.

The protective frisk

¶ 34. At the hearing, Jefferson testified that once he had stopped the vehicle, he asked the driver, whom he did not know, to step out. When the driver stepped out, Jefferson observed the “butt of a gun sitting out from under the driver side seat,” and an empty whisky bottle. Jefferson also “could tell he had been drinking.” At that point, Jefferson brought Eaddy to the rear of the car and patted him down for “safety reasons.” During the frisk, Jefferson found two pill bottles in Eaddy’s pockets that contained what appeared to be crack cocaine.

¶ 35. On cross-examination, Jefferson was asked about the discrepancies in his police report. He testified that he had misstated that he knew Barnes and the exact point in time at which he had seen the gun. In an effort to clarify his report, Jefferson stated that he did not know Barnes at the time of the stop, and that he had seen the “butt of a gun” under the driver’s seat immediately after Eaddy had stepped out of the vehicle. The trial court found that “the officer’s report at the time of the stop and arrest ... is not intended to be the total courtroom testimony of that officer.”

¶ 36. Legally, an officer may frisk a person for weapons, if the officer has reason to believe that he is dealing with an armed and dangerous individual. This type of noncustodial stop is an exception to the Fourth Amendment’s general proscription against warrantless searches, otherwise known as a Terry stop. Once Jefferson observed the “butt of a gun” under the driver’s seat, saw the empty whiskey bottle, and smelled alcohol on Eaddy, he had reason to perform a limited search for weapons. Thus, Jefferson’s actions hardly can be deemed unreasonable.

The exclusionary rule and the good-faith exception

¶ 37. Even assuming, arguendo, that the stop violated Eaddy’s Fourth Amendment rights, the facts of this case would not trigger the exclusionary rule. There is no individual right to have improperly obtained evidence excluded, and the fact that a violation occurs does not render the exclusionary rule applicable, per se. Rather, the exclusionary rule applies only when the benefits of deterrence outweigh the social costs. And the rule need not apply in every case, such as the one here, where its application might provide only marginal deterrence.

¶ 38. Moreover, to trigger the rule, the officers’ conduct must be “sufficiently deliberate that the exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Otherwise, “objectively reasonable” conduct falls within the good-faith exception to the exclusionary rule, adopted by this Court in White v. State.

¶ 39. At the hearing, Jefferson testified that he did not know what Barnes looked like, and justified his asking the driver of the vehicle to step out of the car based on the dark-tinted windows. Jefferson testified that, after the driver had stepped out of the car, he noticed the “butt of gun” under the driver’s seat, saw an empty liquor bottle and smelled alcohol on Eaddy. These observations prompted Jefferson to frisk the driver for dangerous weapons, prior to investigating the driver’s identity. Nowhere in our caselaw are officers required to confirm a person’s identity before frisking them, once an officer has seen what appears to be a weapon and believes that individual to be armed and dangerous. Thus, any notion that Jefferson acted unreasonably and exceeded the scope required to resolve the driver’s identity, given the facts, is shocking, and turns a blind eye to an officer’s dilemma when enforcing our laws to take reasonable steps for his or her own safety. Because Eaddy failed to present any evidence sufficient to trigger the rule that the officers’ conduct was deliberate, reckless, or grossly negligent, and because the officers reasonably relied on the information they received from the caller, as well as their own personal knowledge, and believed in good faith that Barnes would be driving the car, I would extend the White/Lem good-faith exception to include cases such as this one.

CONCLUSION

¶ 40. In sum, Eaddy presented no evidence contesting Jefferson’s testimony at the hearing, leaving the trial court with Jefferson’s testimony and report upon which to base its decision. I cannot agree with the conclusion that the trial court erred in denying Eaddy’s motion to suppress. Accordingly, I would affirm Ead-dy’s conviction and sentence.

CARLSON, P.J., RANDOLPH AND LAMAR, JJ„ JOIN THIS OPINION.

      . The record does not indicate that Officer Edwards received the call from law-enforcement personnel.

      . The warrants had been executed about two years before the relevant day and were entered into evidence.

      . The officers would not have known the description of Barnes's vehicle but for the caller's information, because the arrest warrants did not include a description.

      . While we assume in addressing the State's argument that Wendell Barnes owned the car, the record does not clearly indicate the car’s owner. Thandiwe Barnes picked up the car after Eaddy's arrest. Eaddy testified that he did not know for sure who owned the car, but he thought it might belong to Thandiwe’s brother.

      . Delker v. State, 50 So.3d 300, 303 (Miss.2010) (citing Moore v. State, 933 So.2d 910, 914 (Miss.2006)).

      . Burchfield v. State, 892 So.2d 191, 194-195 (Miss.2004) (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 118 (Miss.1999)).

      . Black's Law Dictionary 912 (Rev. 4th ed. 1968).

      . McClellan v. State, 34 So.3d 548, 552 (Miss.2010).

      . Burchfield, 892 So.2d at 194-95.

      . Id. at 195.

      . McClellan, 34 So.3d at 550.

      . Burchfield, 892 So.2d at 194-195 (citing Floyd, 749 So.2d at 110).

      . See Gonzales, 963 So.2d at 1142 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) ("[s]pecific and artic-ulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.").

      . See Wilson v. State, 935 So.2d 945, 950 (Miss.2006).

      . Terry, 392 U.S. at 27, 88 S.Ct. 1868.

      . Gonzales v. State, 963 So.2d 1138, 1141 (Miss.2007); Terry, 392 U.S. at 27, 88 S.Ct. 1868.

      . See Gonzales, 963 So.2d at 1141-42; Terry, 392 U.S. at 27, 88 S.Ct. 1868 (citations omitted) (where the Supreme Court noted “that it is imperative that the facts be judged against an objective standard: ‘Would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?'").

      . See Herring v. U.S., 555 U.S. 135, 129 S.Ct. 695, 700, 172 L.Ed.2d 496 (2009).

      . Id.

      . Id.

      . Id. at 702.

      . White v. State, 842 So.2d 565, 570-571 (Miss.2003) (invalidating telephonic search warrants but finding that the exclusionary rule should not apply to evidence seized pursuant to such warrants because the officers thought the procedure was valid). Notably, this Court has applied the White/Leon good-faith exception only to circumstances involving the validity of a warrant.

        .See Terry, 392 U.S. 1, 27, 88 S.Ct. 1868.


author: WALLER, Chief Justice, KITCHENS, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Marion McKENZIE.
    No. 2010-JP-01505-SCT.
    Supreme Court of Mississippi.
    June 23, 2011.

      Darlene D. Ballard, Ayanna Batiste Butler, attorneys for appellant.
    Conrad Mord, attorney for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance filed a formal complaint against Walthall County Justice Court Judge Marion McKenzie, charging that he had engaged in ticket-fixing and ex parte communications. Judge McKenzie acknowledged his wrongdoing and has joined the motion for approval of recommendation of a public reprimand, a $500 fine, and assessment of costs in the amount of $100. After conducting an independent inquiry and giving careful consideration to the findings of fact and recommendations of the Commission, we order a thirty-day suspension from office without pay in addition to the recommended sanctions.

AGREED FINDINGS OF FACT

¶2. During a three-year period, from January 2006 to January 2009, Judge McKenzie disposed, or attempted to dispose, of nine ticket citations for misdemeanor offenses. The offenses involved hunting over bait, fading to wear hunter orange, hunting without a license, and littering.

¶ 3. On three occasions, Judge McKenzie intervened, or attempted to intervene, in cases assigned to Justice Court Judge Lio-nell Harrell. On each of these occasions, Judge McKenzie obtained the violator’s copy of the ticket, passed the copy to the justice court deputy clerk, and asked the deputy clerk to give it to the citing officer so the officer could help the defendant. Despite Judge McKenzie’s efforts, Judge Harrell managed to dispose of two of the cases by holding hearings, finding the defendants guilty, and imposing fines totaling more than $1,300. But a third case, which was returnable in November 2007, still had not been prosecuted at the time the Commission submitted its findings.

¶ 4. Judge McKenzie used similar tactics in one of his own assigned cases as well. In January 2009, after being assigned a certain case, Judge McKenzie obtained copies of the violator’s tickets, gave those copies to the deputy clerk, and asked the deputy clerk to give them to the citing officer so the officer could help the defendant. The defendant eventually pleaded not guilty, and both charges were dismissed.

¶ 5. In three other instances, Judge McKenzie improperly disposed of cases before him. In one case, he revoked a judgment of guilt without any motion, reset the case for trial, and, at the second trial, dismissed the charge. The two other cases both involved the same defendant, who happened to be related to a local public official. One of those cases was remanded to the inactive files; the other never was called for prosecution.

¶ 6. When the Commission began its formal inquiry, Judge McKenzie, initially at least, failed to cooperate with and misled the Commission.

STANDARD OF REVIEW

¶7. In reviewing judicial misconduct cases, this Court conducts an “ ‘independent inquiry of the record,”’ and, in doing so, “ ‘accord[s] careful consideration [of] the findings of fact and recommendations of the Commission, or its committee, which has had an opportunity to observe the demeanor of the witnesses.’ ” Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011) (quoting In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982)).

DISCUSSION

1. Judge McKenzie violated Canons 1, 2A, 2B, 3A, 3B(1), 3B(2), and 3B(7) of the Mississippi Code of Judicial Conduct, thus causing this matter to be actionable under Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 8. According to the Commission’s findings, Judge McKenzie violated Canons 1, 3A, and 3B(1) when he involved himself in cases that were assigned to Judge Harrell and when he attempted to help defendants with their tickets. He violated Canons 2A and 2B when he obtained violators’ copies of the tickets, gave those copies to a deputy clerk, and instructed the clerk to pass them along to the citing officer so the officer could help the defendants dispose. of the charges. Judge McKenzie violated Canon 3B(2) when he failed to ensure that proper notice was given to the State before conducting a hearing, and when he assisted certain defendants by dismissing or remanding their cases to the inactive files. Judge McKenzie violated Canon 3B(7) when he engaged in ex parte communications with numerous defendants and failed to afford the State a right to be heard. And finally, the Commission found that Judge McKenzie had violated Canon SC(1) by failing initially to cooperate with the Commission’s investigation.

¶ 9. We agree that each of these Canons was violated, except for Canon 3C(1), which relates to Judge McKenzie’s failure to cooperate with the Commission’s investigation. Canon 3C(1) concerns “Administrative Responsibilities” and does not speak to a judge’s obligation to the Commission. See, e.g., Miss. Comm’n on Judicial Performance v. Vess, 692 So.2d 80, 84 (Miss.1997) (finding that a justice court judge had violated Canon 3C(1) by failing to disqualify himself from a case after having had improper ex parte communications). More importantly, Judge McKenzie had a federal and state constitutional right against self-incrimination. U.S. Const, amend. V; Miss. Const, art. 3, § 26. His lack of cooperation, therefore, was not a violation of the Code of Judicial Conduct. Judge McKenzie did admit to “misleading” the Commission, however. This will be considered below as an aggravating factor.

¶ 10. In sum, we find that Judge McKenzie violated Canons 1, 2A, 2B, 3A, 3B(1), 3B(2), and 3B(7) of the Mississippi Code of Judicial Conduct and that his actions constituted willful misconduct and conduct prejudicial to the administration of justice, in violation of Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

II. Judge McKenzie’s misconduct warrants a public reprimand, a thirty-day suspension from office without pay, a $500 fine, and assessment of costs in the amount of $100.

¶ 11. This Court considers six factors in determining proper sanctions for judicial misconduct: (1) the length and character of the judge’s public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of misconduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating circumstances. Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), overruled in part on other grounds by Boone, 60 So.3d at 174-75.

A. Length and Character of Judge McKenzie’s Public Service

¶ 12. Judge McKenzie has been a justice court judge for fifteen years. Prior to that, he served as a deputy sheriff for twelve years. The record is silent regarding the character of his public service.

B. Prior Caselaw

¶ 13. The Commission cites Mississippi Commission on Judicial Performance v. Boykin, 763 So.2d 872 (Miss.2000), and Mississippi Commission on Judicial Performance v. Warren, 791 So.2d 194 (Miss.2001), as comparable cases. In Boykin, this Court imposed a public reprimand and a fine for a justice court judge who improperly had dismissed eleven tickets based upon ex parte communications. Boykin, 763 So.2d at 874, 876. In Wan-en, this Court ordered a public reprimand and a fine on a justice court judge who had engaged in ex parte communications and had dismissed approximately ten speeding tickets without notice to the citing officer or a hearing. Warren, 791 So.2d at 196-99.

¶ 14. The Commission also cites Mississippi Commission on Judicial Performance v. Sanford, 941 So.2d 209 (Miss.2006), and Mississippi Commission on Judicial Performance v. Gordon, 955 So.2d 300 (Miss.2007), but it finds that Judge McKenzie’s actions were not as egregious as the misconduct in those cases.

¶ 15. In Sanford, Gordon, and, more recently, in Mississippi Commission on Judicial Performance v. Bradford, 18 So.3d 251 (Miss.2009), this Court imposed suspensions for egregious misconduct that involved moral turpitude arising out of what is referred to as “ticket-fixing.” Sanford, 941 So.2d at 216-18; Gordon, 955 So.2d at 305-06; Bradford, 18 So.3d at 256-57.

If 16. In Sanford, a justice court judge arranged for the arresting officer in a driving-under-the-influence case not to appear at trial so the judge could dismiss the case for failure to prosecute. Sanford 941 So.2d at 210, 218. The Commission recommended a public reprimand and assessment of costs. Id. at 215. This Court, however, believed that a harsher sanction was warranted. Id. at 218. Thus, a thirty-day suspension was added. Id.

¶ 17. In Gordon, a municipal court judge approached an officer and told him that several local residents were upset about a number of speeding tickets that the officer had issued. Gordon, 955 So.2d at 302. The judge then informed the officer that he intended to pass those tickets to the files. Id. Despite the officer’s objections, fourteen defendants were advised not to appear in court because their tickets had been “passed” to the files. Id. The Commission recommended that the judge be publicly reprimanded and assessed all costs. Id. at 304. But this Court, citing Sanford as support, found that the judge’s conduct was egregious and, therefore, a thirty-day suspension was appropriate as well. Id. at 306. We noted that we had not always required a suspension for such conduct. Id. Yet Sanford, we stated, had marked a shift. Id. (citing Sanford, 941 So.2d at 209). As a result, conduct akin to that in Gordon warranted a more severe penalty, including a suspension. Gordon, 955 So.2d at 306.

¶ 18. The justice court judge in Bradford committed numerous violations: two counts of ex parte communications, five counts of improperly dismissing or disposing of charges, two counts of violating Rule 2.06 of the Uniform Rules of Procedure for Justice Court, and improperly ordering the issuance of two contempt warrants. Bradford, 18 So.3d at 254. And, similar to the ease before us, the justice court judge in Bradford tried to interfere with two traffic citations that had been assigned to another justice court judge. Id. at 253. The Commission recommended a public reprimand, thirty-day suspension without pay, and assessment of costs. Id. at 254. We adopted its recommendation. Id. at 258. Notably, we discussed harsher sanctions, but found “no case in which a judge making a first appearance before the Commission and this Court, for whom the Commission recommended a suspension from office, in which this Court imposed a longer suspension from office and a fine greater than that resulting from the direct costs of the judge’s misbehavior.” Id. at 257-58. Two justices, however, would have imposed an even harsher sanction. Id. at 259-63 (Randolph, J., concurring in part and dissenting in part).

C.The Magnitude of the Offense and the Harm Stiffered

¶ 19. Judge McKenzie violated multiple canons and the Mississippi Constitution. That alone indicates the seriousness of his misconduct. Id. at 305. Judge McKenzie’s actions interfered with the administration of justice and brought the judicial office into disrepute. By involving himself in another judge’s cases and attempting to assist defendants with their tickets, Judge McKenzie compromised the integrity and independence of the judiciary. These actions created an impression that certain defendants were in a special position to influence him. Id. His actions also deprived the State of a fair opportunity to exercise its legitimate interest in punishing offenders of its laws. Id.

¶ 20. We have noted in the past that it is particularly important for justice court judges to “ ‘regard scrupulously the nature of their office.’ ” Sanford, 941 So.2d at 215 (quoting In re Bailey, 541 So.2d 1036, 1039 (Miss.1989)). “Our citizenry’s overall perception of the entire judicial system in this state is quite often a result of contact with our justice courts, since the vast majority of our citizens will have little or no contact with our state trial or appellate courts, other than for jury service.” Id. at 218 (citing In re Bailey, 541 So.2d at 1039).

D.Isolated Incident or Pattern of Conduct

¶21. The Commission states that Judge McKenzie has been the subject of one informal action. The Commission offers no further details, other than to say that the conduct in the informal action was unrelated to this case.

¶ 22. Though Judge McKenzie does not have a disciplinary history with the Commission, this Court has found that a pattern of misconduct exists where a single disciplinary action comprises multiple offenses. Bradford, 18 So.3d at 256. As few as three incidents of misconduct constitute a pattern of behavior. Id. (citing Miss. Comm’n on Judicial Performance v. Cowart, 936 So.2d 343, 350 (Miss.2006)). The nine incidents here thus constitute a pattern of conduct.

E.Moral Turpitude

¶ 23. The Commission and Judge McKenzie agree that his actions involved moral turpitude. Moral turpitude includes “‘actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.’ ” Gordon, 955 So.2d at 305 (quoting Gibson, 883 So.2d at 1158 n. 2). Ticket-fixing willfully subverts justice. Gordon, 955 So.2d at 305. Therefore, we agree that Judge McKenzie’s conduct crossed the line of moral turpitude.

F. Mitigating or Aggravating Factors

¶ 24. The fact that Judge McKenzie acknowledged the inappropriateness of his conduct and agreed with the Commission’s findings mitigates his actions. E.g., Gibson, 883 So.2d at 1158. Though the Commission cites no aggravating factors, we noted above that Judge McKenzie’s “misleading” the Commission is an aggravating factor.

¶ 25. After an independent review of the record, and after carefully considering the findings of fact and recommendations of the Commission, we are unable to agree with the Commission’s recommendation. In light of the egregiousness and moral turpitude of Judge McKenzie’s conduct, a harsher sanction is required. We noted in Gordon that, in the past, this Court has imposed a public reprimand and assessment of costs for ex parte communications and ticket-fixing. Gordon, 955 So.2d at 306 (citations omitted). But in Gordon and in Sanford, we held that, where the misconduct is egregious, the proper sanction is not only a reprimand, but a suspension as well. Id. And, in Bradford, we found that Gordon and Sanford had established that a suspension is an appropriate sanction for misconduct that involves moral turpitude. See Bradford, 18 So.3d at 256-57 (citations omitted). Engaging in ex parte communications and “passing” fourteen tickets to the file has been deemed to warrant a suspension. Gordon, 955 So.2d at 306. Here, Judge McKenzie fixed, or attempted to fix, nine tickets for six defendants. Three cases were dismissed in open court without a hearing and without agreement from the State; one case was remanded to the inactive files; and two cases were never called for prosecution. On several occasions, he contacted and attempted to influence the citing officer through a third person. Yet, what makes Judge McKenzie’s conduct especially egregious is the fact that he intervened, or attempted to intervene, in cases that had been assigned to another judge.

¶26. Given that Judge McKenzie engaged in various forms of ticket-fixing, which included several instances of ex parte communications, and went so far as to intervene in another judge’s cases, we find that a thirty-day suspension without pay is warranted in addition to the sanctions recommended by the Commission.

CONCLUSION

¶ 27. We find that Judge McKenzie violated Canons 1, 2A, 2B, 3A, 3B(1), 3B(2), and 3B(7) of the Mississippi Code of Judicial Conduct, and that his egregious actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute under Section 177A of the Mississippi Constitution of 1890, as amended. After conducting an independent review of the record, and after giving careful consideration to the findings of fact and recommendations of the Commission, we order that Judge McKenzie be suspended for thirty days from office without pay following the issuance of this Court’s mandate, publicly reprimanded, fined $500, and assessed $100 in court costs.

¶ 28. WALTHALL COUNTY JUSTICE COURT JUDGE MARION MCKENZIE SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD THIRTY OF (30) DAYS WITHOUT PAY EFFECTIVE ON THE DATE OF ISSUANCE OF THIS COURT’S MANDATE; PUBLICLY REPRIMANDED; FINED $500.00; AND ASSESSED COSTS IN THE AMOUNT OF $100.00. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE WALTHALL COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY VE-NIRE IS PRESENT FOLLOWING THE ISSUANCE OF THE MANDATE OF THIS COURT, WITH JUDGE MCKENZIE IN ATTENDANCE.

CARLSON, P.J., RANDOLPH, LAMAR, PIERCE AND KING, JJ., CONCUR. KITCHENS, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND CHANDLER, J.

KITCHENS, Justice,

Concurring in Part and Dissenting in Part:

¶ 29. Because I would adopt the Commission’s recommended sanctions, and the majority significantly departs from them, I respectfully concur in part and dissent in part.

¶ 30. “Often the sanction for ‘fixing’ tickets is a public reprimand, fine and assessment of the costs.” Miss. Comm’n on Judicial Performance v. Bradford, 18 So.3d 251, 255 (Miss.2009) (citing 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, 872 (Miss.2000)). The Commission cites Warren, 791 So.2d at 198, and Boykin, 763 So.2d at 876, as comparable cases. In both instances, the offending judges were publicly reprimanded, fined, and assessed costs for dismissing traffic tickets without hearings and without notifying the State. Warren, 791 So.2d at 198; Boykin, 763 So.2d at 876. In those cases, this Court noted that there was no evidence that either judge had profited financially from his or her misconduct. Warren, 791 So.2d at 196; Boykin, 763 So.2d at 876. Likewise, in the present case, there is no evidence that Judge McKenzie received any monetary benefit for his actions.

¶ 31. Moreover, the Commission effectively distinguishes the cases that the majority cites to support its ordering a thirty-day suspension. In Mississippi Commission on Judicial Performance v. Sanford, 941 So.2d 209, 210 (Miss.2006), the justice court judge directed the sheriff to give orders to the arresting officer not to attend a hearing on a driving-under-the-influence charge. In Mississippi Commission on Judicial Performance v. Gordon, 955 So.2d 300 (Miss.2007), the judge spoke directly with the officer who had issued a number of speeding tickets and then, over the officer’s objections, told the defendants they did not need to appear in court. As the Commission correctly notes in its brief, “at no time did [Judge McKenzie] talk to the issuing officers’ superior, personally ask the issuing officers not to appear in court, or advise any of the defendants not to appear in court.” Thus, Gordon and Sanford are distinguishable.

¶ 32. The most recent case cited by the majority is Bradford, 18 So.3d 251, but that decision, with which I concurred, does not support suspending a judge who has admitted fixing tickets, including those assigned to another judge. As the majority correctly notes, the justice court judge in Bradford engaged in misconduct that went far beyond ticket fixing. Maj. Op. ¶ 18. The more egregious instances of Bradford’s misconduct included “engaging in ex parte communications in a rental-dispute case and subsequently ruling in favor of the party with whom he had the ex parte communications” and “ordering contempt warrants issued against individuals in the absence of pending charges against those individuals and in the absence of notice or a hearing for such individuals.” Bradford, 18 So.3d at 253. Moreover, Judge Bradford attempted to interfere with charges of driving under the influence and failure to abide by a protective order, while Judge McKenzie’s ticket fixing involved charges of hunting game over bait, failure to wear hunter orange, hunting without a license, and littering. Judge McKenzie’s misconduct simply does not rise to the level of egregious misconduct found in Bradford, and the Commission correctly concluded that Judge McKenzie is not deserving of the same severe sanction.

¶ 33. Bradford reinforces my position that we should adopt the recommendation of the Commission. The majority in Bradford reasoned that “[t]his Court’s willingness to impose harsher penalties than those recommended by the Commission usually stems from the number of times the judge has appeared before the Commission (and subsequently this Court), rather than the number of complaints listed in each appearance.” Id. at 258. Like Bradford, Judge McKenzie does not have a disciplinary history with either the Commission or this Court. The difference is that Judge Bradford’s admitted misconduct significantly surpassed that of Judge McKenzie.

¶ 34. As in Bradford, we ought to adopt the Commission’s recommendation. Eight paragraphs of the joint findings of fact comprise the only “record” we have of Judge McKenzie’s conduct, and nothing in that brief recitation of facts is so egregious as to warrant harsher sanctions than those suggested by the Commission. Accordingly, I respectfully disagree with the imposition of a thirty-day suspension and would order a public reprimand, $500 fine, and assessment of costs.

DICKINSON, P.J., AND CHANDLER, J., JOIN THIS OPINION.

      .Canon 1 of the Code of Judicial Conduct provides that:
      An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code should be construed and applied to further that objective.
      Mississippi Code of Judicial Conduct Canon 1.
      Canons 3A and 3B(1) state, in pertinent part, that:
      ... The judicial duties of judges take precedence over all their other activities. The judges’ judicial duties include all the duties of their office prescribed by law. In the performance of these duties, the following standards apply: ... (1) A judge shall hear and decide all assigned matters within the judge’s jurisdiction except those in which disqualification is required.
      Mississippi Code of Judicial Conduct Canon 3.

      . Canons 2A and 2B provide, in pertinent part, that:
      A. 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-
      B. Judges shall not allow their family, social, or other relationships to influence the judges’ judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges....
      Mississippi Code of Judicial Conduct Canon 2.

      . Canon 3B(2) states that "A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.” Mississippi Code of Judicial Conduct Canon 3B(2).

      . Canon 3B(7) provides, in pertinent part, that:
      A judge shall accord to all who are legally interested in a proceeding, or their lawyers, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding [with certain exceptions]....
      Mississippi Code of Judicial Conduct Canon 3B(7).

      . Canon 3C(1) states that "A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and shall cooperate with other judges and court officials in the administration of court business.” Mississippi Code of Judicial Conduct Canon 3C(1).

      .Section 177A of the Mississippi Constitution states, in pertinent part, that:
      On recommendation of the commission on judicial performance, the supreme court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: ... (b) willful misconduct in office; ... (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute....
      Miss. Const, art. 6, § 177A.