text:
    STATE of Louisiana v. Anthony Dewayne CYRIAK.
    No. 10-591.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      James C. Downs, District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Anthony Dewayne Cyriak.
    Anthony Dewayne Cyriak, Winnfield, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

I,The defendant was convicted of aggravated battery and sentenced to twenty years imprisonment at hard labor. The defendant appeals, challenging the evidence used to convict him and questioning his sentence as excessive. For the following reasons, we affirm.

Factual and Procedural Background

The events at issue in this case occurred on the evening of September 3, 2007, and into the early morning hours of September 4, 2007, in Rapides Parish. According to Michael Dwayne Johnson’s trial testimony, he met up with a friend to buy some drugs from Anthony Dewayne Cyriak. Mr. Johnson alleges that, after buying the drugs, his friend convinced him to let Mr. Cyriak borrow his car for a couple of hours. Mr. Johnson related that, after waiting with his friend for a long period of time, he decided to go walking to look for Mr. Cyriak and retrieve his vehicle. He testified that he saw the vehicle, empty, stopped at a stop sign, and he got into the passenger seat and waited for Mr. Cyriak. Mr. Johnson alleged that Mr. Cyriak got into the vehicle, pulled out a gun, and started demanding money from him. Mr. Johnson stated as follows:

Well, he pulled a gun on me, so I told him, well, we can like ride around until we, until the bank [sic] open and I will try' to go and get some money, but I knew I didn’t have no money in no bank, you know. I just knew if I go to the bank I could call the police on him — tell the people to call the police on him.

Mr. Johnson testified that the two men went to the bank, however it was closed. Mr. Johnson related that, at this point, Mr. Cyriak let him drive the car, and the two men ended up on Old Boyce Road in Alexandria, Louisiana. While on Old Boyce Road, it is alleged that the two men began struggling over the gun, Mr. Cyriak shot Mr. Johnson several times, and Mr. Johnson came to rest on the side of the road.

|2Ms. Kimberly Howell testified that, in the early morning hours of September 4, 2007, she heard gunshots outside of her home on Old Boyce Road. She related that, as she reversed her car out of the driveway, she saw Mr. Johnson walking down the middle of Old Boyce Road. After realizing that Mr. Johnson needed medical assistance, she called 911 and Mr. Johnson was transported to the local hospital. At the hospital, Mr. Johnson was treated for gunshot injuries to his leg and was later released.

On January 29, 2008, Mr. Cyriak was charged by bill of information with attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1; second degree kidnapping, a violation of La.R.S. 14:44.1; and unauthorized use of a motor vehicle having a value in excess of one thousand dollars, a violation of La.R.S. 14:68. The defendant pled not guilty to the three charges.

After trial, on August 12, 2009, the jury found the defendant guilty of the responsive verdict of aggravated battery and found the defendant not guilty on the second degree kidnapping and unauthorized use of a motor vehicle charges.

On August 18, 2009, the defendant was charged by bill of information as a habitual offender. On October 16, 2009, the defendant was adjudicated as a second felony offender. He was subsequently sentenced to serve twenty years imprisonment at hard labor.

The defendant appeals, asserting two assignments of error. In a counsel-filed brief, the defendant asserts that the trial court violated his constitutional right to a jury trial when it used the two offenses on which the jury found him not guilty as ^aggravating factors when imposing the maximum sentence, resulting in an excessive sentence. In a pro-se brief, the defendant contends that there was insufficient evidence to convict him of aggravated battery.

Discussion

Emrs Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

Pro-Se Assignment of Error

In his pro-se assignment of error, the defendant contends that there was insufficient evidence to support his aggravated battery conviction.

In reviewing the sufficiency of the evidence to support a conviction, a reviewing court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979). State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). Under the Jackson standard, the reviewing court must determine whether the evidence, when viewed in a light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. Id.

Aggravated battery is defined in La.R.S. 14:34 as “a battery committed with a dangerous weapon.” Battery is defined, in part, as “the intentional use of force or violence upon the person of another!.]” La.R.S. 14:33.

The defendant contends that there are several problems with the evidence in this case which support a finding of insufficient evidence to support his conviction. | ¿First, the defendant asserts that there was no direct or physical evidence linking him to the instant crime. He contends that the State relied only on the testimony of Mr. Johnson, an alleged drug addict who admitted to being on drugs at the time of the instant crime and on pain medication during his statement to police. He also asserts that he was identified by Mr. Johnson only after a highly suggestive police “lineup.” Lastly, the defendant asserts that in his testimony, Mr. Johnson stated that during the struggle for the gun, he bit the perpetrator. The defendant notes, however, that no one testified that the defendant suffered from bite marks after the alleged crime took place.

The record reveals that Mr. Johnson testified that he used drugs between 9:00 p.m. and 10:00 p.m. on the night preceding the early morning shooting. He further related that he only felt the effects of the drugs for about fifteen minutes and did not feel the effects when he had the altercation with the defendant. Mr. Johnson also testified that at the time he gave his statement to police he was taking “pain treatment.” He did not explain what was meant by the term “pain treatment.” However, the jury was fully aware of Mr. Johnson’s drug use, and chose to credit his testimony, specifically that the defendant shot Mr. Johnson several times in the leg. “The credibility of the witness is a matter of weight of the evidence, not sufficiency, and determination of the credibility is left to the trier-of-fact’s sound discretion and will not be re-weighed on appeal.” State v. Jeter, 09-1004, p. 3 (La.App. 3 Cir. 4/7/10), 33 So.3d 1041, 1043-44. As such, despite the defendant’s assertions calling into question Mr. Johnson’s credibility, it is clear that the jury chose to believe Mr. Johnson’s testimony and that determination will not be second-guessed on appeal by this court.

• | ¡¿Further, while the defendant complains about a suggestive photographic lineup, he did not file a motion to suppress and no objection was lodged in the record regarding Mr. Johnson’s identification of the defendant. Thus, the issue of the alleged suggestive nature of the lineup is not properly before this court on review. State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553.

This assignment of error lacks merit.

Excessive Sentence

In his next assignment of error, the defendant contends that the trial court violated his constitutional right to a jury when it used the two offenses for which the jury found him not guilty as aggravating factors when imposing the maximum sentence, resulting in an excessive sentence.

In State v. Fontenot, 09-1044, pp. 4-6 (La.App. 3 Cir. 5/12/10), 38 So.3d 1122, 1125-26, a panel of this court stated:

The Eighth Amendment to the United States Constitution and La. Const, art. 1, § 20 prohibit the imposition of cruel or excessive punishment, and the law is well settled with regard to what constitutes cruel or excessive punishment. An excessive sentence is a penalty that is so grossly disproportionate to the severity of the crime that it shocks our sense of justice or it makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). Additionally, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, the reviewing court should not deem as excessive a sentence imposed within statutory limits. State v. Howard, 414 So.2d 1210 (La.1982); State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls within the statutory limits may be excessive under the particular circumstances of a given case. State v. Sepulvado, 367 So.2d 762 (La.1979). Additionally, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for the reviewing court to consider is not whether another sentence would be more appropriate, but rather whether the trial | (¡court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Louisiana Code of Criminal Procedure Article 894.1(A) provides that the trial court should impose an imprisonment sentence if any of the following are established by the record:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
Additionally, the trial court must “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La. Code Crim.P. art. 894.1(C). However, in complying with this article, the trial court “need not articulate every circumstance or read through a checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483.

In brief, the defendant argues as follows:

if a jury finds a defendant not guilty of specific crimes, can a trial court, in sentencing the defendant on another crime, make a specific finding in opposition to the jury’s finding of not guilty, as a basis for enhancing the defendant’s sentence. This is exactly what the trial court did to Mr. Cyriak. To justify the maximum sentence, it specifically found Mr. Cyr-iak committed the crimes for which he was acquitted.

In determining what sentence to impose, the trial court first found several aggravating factors, as follows:

As a aggravating factor, I’m going to find that [the defendant’s] conduct during the commission of the defense [sic] manifested delivered [sic] cruelty to the victim. The facts in this case was [sic] that the defendant, Mr. Cyriak, shot the victim in his leg with a firearm which caused the defendant [sic] to lose quite a bit of blood and to become unconscious on Old Boyce Road and basically, his life was saved by the lady that stopped and called an ambulance for him, uh, got him some medical care.

17Further, the trial court found aggravating the fact that the defendant, in the commission of the offense, used threats of or actual violence, used a dangerous weapon, a firearm, and endangered human life. Further, the trial court took notice of the defendant’s criminal history ranging from the age of eight to the present. Additionally, at sentencing, the State informed the trial court that, at the time of this offense, the defendant was on parole from an earlier offense. The trial court stated that it found no mitigating factors. Further, the trial court noted information relating to the defendant’s personal history: his birth date, that he was unmarried, that he had two children, and was not employed.

After reviewing the defendant’s criminal history and finding several aggravating factors, the trial court stated:

I find that his ... behavior with the victim in this matter ... was cruel, it was dangerous, and there was absolutely no reason for any of that behavior. I believe that Mr. Cyriak kidnapped [the victim], transported him somewhere for him to receive money from an ATM and then after that, shot Mr. Johnson in the leg, which caused a very serious injury.
Based upon Mr. Cyriak’s record, and the aggravating factors that are stated for the | ^record, and the mitigating factors that are stated for the record, I will order that he serve that 20 years at hard labor with the Department of Corrections as a second felony offender.

We find after a review of the record, that the trial court thoroughly reviewed the defendant’s criminal history, the defendant’s background, and the nature of the offense at issue before imposing the present sentence. We find that the defendant’s assertion that the trial court considered its aquittal of the kidnapping charge “too remote [a possibility] to justify setting aside a sentence otherwise fully supported by the record.” State v. Myles, 94-217, p. 3 (La.6/3/94), 638 So.2d 218, 219.

The defendant was convicted of aggravated battery and adjudicated a second felony offender. The applicable sentencing range is five to twenty years. La.R.S. 14:34; La.R.S. 15:529.1. The defendant was sentenced to serve twenty years at hard labor, the maximum sentence. In the instant case, in sentencing the defendant, the trial court thoroughly considered the defendant’s background and nature of the offense. The defendant shot Mr. Johnson in the leg, causing him to lose a substantial amount of blood and become unconscious on the side of the road. The defendant also had an extensive arrest record, including a prior felony conviction for possession with intent to distribute a schedule two controlled dangerous substance. The trial court also considered that the defendant’s probation for that prior offense was revoked and, when he was later paroled, he committed the current offense after being out of prison for less than four months.

We find that based upon the defendant’s criminal history, the nature of the offense, the defendant’s sentence is not excessive.

This assignment of error lacks merit.

| ¡[DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . In the habitual offender trial transcript, it reads that the defendant pled guilty to being a habitual offender, however, the transcript also indicates that the trial court took evidence on that matter. We note, that the court minutes state on August 21, 2009, the defendant pled not guilty.

      . At the sentencing hearing, the trial court reviewed the defendant’s juvenile record and found the following arrests: 1) 1996, at the age of eight, for criminal mischief; 2) July 11, 2002, for criminal damage; 3) July 2002, for theft; 4) August 2, 2002, at the age of thirteen, for nine counts of criminal damage; 5) January 19, 2003, for improper or switched license plate; 6) January 20, 2003, for violation of a city ordinance; 7) March 10, 2003, for two counts of simple battery; 8) March 24, 2003, for aggravated battery; 9) July 8, 2003, for simple criminal damage to property; 10) June 23, 2004, for failing to leave a premise after being forbidden and three other charges; and 11) March 13, 2005, for three counts of aggravated assault for shooting into a residence.
      The trial court discussed the defendant’s adult record as follows: 1) arrested in 2006 for resisting an officer and felony possession of CDS IV; 2) arrested on January 21, 2006, for "disturbing the peace, fighting, remaining on the premises”; 3) charged on April 24, 2006, for obstruction of justice; 4) arrested on April 24, 2006, for resisting an officer, trespassing, and possession of marijuana and was convicted; 5) arrested on July 12, 2006, for possession with intent to distribute CDS II and was convicted on March 11, 2009; and 6) arrested on August 25, 2006, for unauthorized use of a motor vehicle.


source: Caselaw Access Project

author: GAIDRY, J. WHIPPLE, J.,

license: Public Domain

text:
    Janice HAMILTON, Individually and as The Surviving Child of, Nettie Hamilton v. BATON ROUGE HEALTH CARE.
    No. 2009 CW 0849R.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 8, 2010.

      Tom Withers, III, Baton Rouge, Louisiana, for Plaintiff/Respondent, Janice Hamilton.
    C. Blair Bright, New Orleans, Louisiana, for Defendant/Relator, Baton Rouge Health Care Center.
    Before WHIPPLE, GAIDRY, McClendon, hughes, and kline, JJ.
   GAIDRY, J.

|2The relator, a nursing home operator, applies for supervisory writs, based upon the district court’s overruling of its dilatory exception of prematurity. For the following reasons, we grant the writ, reverse the trial court’s judgment, and dismiss the respondent’s cause of action without prejudice on the grounds of prematurity.

FACTS AND PRIOR PROCEEDINGS

This is a wrongful death and survival action brought by Janice Hamilton (plaintiff), the surviving daughter of Nettie Win-field, a former resident of Baton Rouge Health Care Center (the Center), a nursing home in Baker, Louisiana. Ms. Win-field died on June 5, 2008, a few weeks following surgery for a right subtrochan-teric femur fracture. Plaintiff filed suit against the Center on September 30, 2008, alleging that her mother’s death was caused by the negligence of employees of the Center while “transferring her mother from her wheelchair to her bed and/or ... otherwise performing custodial duties” on an indeterminate date in May 2008. She further alleged that the “negligent handling ... were [sic ] strictly custodial duties of the nursing home and were not related to any medical treatment of her mother.”

On November 20, 2008, the Center responded with a dilatory exception of prematurity, objecting to plaintiffs petition on the grounds that her claims were based on allegations of medical malpractice and therefore subject to mandatory review by a medical review panel prior to suit, pursuant to the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (the MMA). The trial court heard the exception on March 30, 2009, and ruled against the Center, overruling the exception. On April 7, 2009, thejotrial court signed its judgment overruling the exception. Its written reasons for judgment were issued on April 22, 2009.

The Center applied to this court for supervisory writs, and a five-judge panel (with two judges dissenting) voted to deny writs on the showing made. Hamilton v. Baton Rouge Health Care, 09-CW-0849 (La.App. 1st Cir.12/11/09) (unpublished writ disposition). The Center then sought writs from the Louisiana Supreme Court. This matter now comes to us on remand from the Supreme Court, which granted the Center’s writ application and directed us on remand to render an opinion following briefing and argument. Hamilton v. Baton Rouge Health Care, 10-0061 (La.4/9/10), 31 So.3d 376.

DISCUSSION

The dilatory exception raising the objection of prematurity may be utilized in cases where the applicable law or contract has provided a procedure for a claimant to seek administrative relief or review before resorting to judicial action. Hidalgo v. Wilson Certified Express, Inc., 94-1322, p. 4 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 116. The dilatory exception of prematurity is the proper procedural vehicle invoked by a qualified health care provider sued by a plaintiff who has not previously submitted a medical malpractice claim to a medical review panel, as required by La. R.S. 40:1299.47(B)(l)(a)(i). Spradlin v. Acadia-St. Landry Med. Found., 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119. The burden of proving prematurity in such a case is on the exceptor, who must show that it is entitled to a medical review panel because the allegations fall within the MMA. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008, p. 6 (La.9/5/07), 966 So.2d 519, 528-24.

On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds ^thereof do not appear from the petition. La. C.C.P. art. 930. The only evidence introduced at the hearing in this matter was the Center’s certificate of enrollment as a qualified health care provider under the MMA; no substantive evidence relating to the plaintiffs claims was introduced by either party. Where no evidence is presented at the trial of a dilatory exception of prematurity, the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true. LaCoste, 07-0008 at p. 8, 966 So.2d at 525, citing Blakely v. Powers, 590 So.2d 1286, 1290 (La.App. 1st Cir.1991). But the latter principle applies only to properly pleaded material allegations of fact, as opposed to allegations deficient in material detail, conclusory factual allegations, or allegations of law. Kirby v. Field, 04-1898, p. 6 (La.App. 1st Cir.9/23/05), 923 So.2d 131, 135, writ denied, 05-2467 (La.3/24/06), 925 So.2d 1230. This rule is a parallel to that employed in the determination of a peremptory exception of no cause of action, where only the “well-pleaded” allegations of fact are accepted as true. Id., 04-1898 at p. 6 n. 5, 923 So.2d at 135 n. 5. The adjective “well-pleaded” refers to properly pleaded allegations conforming to the system of fact pleading embodied in the Louisiana Code of Civil Procedure. Id.

A petition must set forth the material facts of the transaction or occurrence that is the subject matter of the litigation. La. C.C.P. art. 891. To plead “material facts,” the plaintiff must allege more than mixed questions of fact and law, such as, in a delictual action, that the defendant acted unreasonably. Price v. Kids World, 08-1815, p. 6 (La.App. 1st Cir.3/27/09), 9 So.3d 992, 996, writ not considered, 09-1340 (La.9/25/09), 18 So.3d 94. Rather, the Louisiana Code of Civil Procedure requires the plaintiff to state what act or omission he will establish at trial. Id. In other lBwords, the plaintiff must allege, with reasonable specificity, a state of facts or condition of things that would show fault under our tort law. See Fitzgerald v. Tucker, 98-2313, p. 7 (La.6/29/99), 737 So.2d 706, 713.

For our present purposes, the MMA defines “malpractice” as “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient. ...” La. R.S. 40:1299.41(A)(8) [renumbered in 2008 as La. R.S. 40:1299.42(A)(13) ]. (Emphasis added.) The general definition of “tort” is “any breach of duty or any negligent act or omission proximately causing injury or damage to another.” La. R.S. 40:1299.41(A)(22). In the context of medical malpractice, such a breach of duty or negligence includes the failure “to use reasonable care and diligence, along with his best judgment, in the application of his skill.” Id. “Health care” includes “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement.” La. R.S. 40:1299.41(A)(9).

The Louisiana Supreme Court has adopted a six-factor test for determining whether alleged negligent conduct constitutes “malpractice,” as opposed to other fault. The factors to be considered include:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
|fi(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
(4) whether [the] incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital [or other health care provider] is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the tort alleged was intentional.

Coleman v. Deno, 01-1517, pp. 17-18 (La.1/25/02), 813 So.2d 303, 315-16.

In the absence of evidence relating to the nature of plaintiffs claims and the issue of prematurity, the following factual allegations of the petition must be accepted as true. Plaintiff alleged that her mother was “admitted as a resident” into the Center in 2001, with an “admission diagnosis ” that included “diabetes, hypertension and dementia.” (Emphasis added.) Following her admission, plaintiffs mother was “under the exclusive care, custody and control of [the Center],” “required total nursing care,” and “was restricted to wheelchair use.” (Emphasis added.)

Additionally, because Ms. Hamilton incorporated the following detailed factual allegations in her petition, it must be presumed that they are material to her cause of action and not mere surplusage, and them substance must be considered in characterizing the nature of the negligence attributed to the Center and its employees:

[W]hile visiting her mother at [the Center] on Mother’s Day, May 11, 2008, [plaintiff] detected a decrease in her mother’s mental status, her food intake was less than normal and she was less responsive. [Plaintiff] also noticed that her mother’s right leg was rotated inward and she complained of pain. The following day, [plaintiff] observed her mother in the same condition and advised [the Center] of her concerns. [The Center] informed [plaintiff] that X-rays of her mothers [sic ] |7right hip and lower extremity had been taken and were negative.
[Plaintiff] continued to visit her mother daily and she continued her complaints of pain in her right hip. During each visit, [plaintiff] was reassured by [the Center] that her mother had no fracture of her lower extremity. On May 19, 2008, [plaintiff] had become increasingly concerned about her mothers [sic ] condition since it had not improved since Mother [sic ] Day. On this date, [plaintiff] noticed swelling in her mother’s right hip, her right leg was still rotated inward and she complained of severe pain in her right side. [Plaintiff] requested [the Center] to immediately arrange transport of her mother to Baton Rouge Medical Center for evaluation.
On May 19, 2008, [plaintiffs] mother was admitted into Baton Rouge General Medical Center with a diagnosis of a right subtrochanteric femur fracture. On May 22, 2008, she underwent surgical repair of her femur fracture and was discharged to [the Center] on May 25, 2008. [Plaintiff] states that after discharge, her mother’s physical condition continued to decline. On June 3, 2008, [plaintiffs] mother was transported to Baton Rouge General Medical Center where she died on June 5, 2008.

These factual allegations on their face state a cause of action against the Center for its failure to discover and diagnose the fracture and to render appropriate treatment and medical services in a timely manner, including referral for hospital, surgical, and other medical treatment later determined to be necessary. Such acts or omissions go beyond mere custodial negligence in allowing a patient to fall or otherwise sustain injury during physical movement, and fall squarely within the statutory definition of malpractice. See McLemore v. Westwood Manor Nursing and Rehabilitation, L.L.C., 37, 450, pp. 5-6 (La.App. 2nd Cir.8/20/03), 852 So.2d 1170, 1174. Thus, the first Coleman factor would appear to be met. Because expert medical evidence will undoubtedly be required to determine whether the failure to discover the fracture constituted a breach of the standard of care imposed upon a nursing home, the second Coleman factor would certainly be met with regard to these allegations.

|sIn the present case, plaintiff alleged that the right femur fracture was caused “in May 2008” when the Center’s employees “were transferring her mother from her wheelchair to her bed and/or were otherwise performing custodial duties ... in total disregard of her safety.” (Emphasis added.) As we have previously noted, no specific date was given for the alleged negligent “act” or “accident.” Additionally, through the emphasized language above, plaintiff has raised the issue of whether her mother’s injury was attributable to factual events or circumstances other than the alleged transfer from her wheelchair to her bed. This conclusion is reinforced by plaintiffs broad itemization of the negligent acts committed by the Center’s employees:

a. Failing to transfer [plaintiffs] mother from her wheelchair to her bed in a safe manner.
b. Failing to handle and/or transfer [plaintiff’s] mother in a manner consistent with her medical condition.
c. Inattentive while transferring and handling her mother.

(Emphasis added.) Expert medical testimony may very well be required to ascertain the probable mechanism of the injury, as well as the standard of care necessary to have prevented its occurrence, given the patient’s condition.

|aIn Hernandez v. Diversified Healthcare-Abbeville, LLC, 09-546 (La.App. 3rd Cir.11/4/09), 24 So.3d 284, writ denied, 09-2629 (La.2/12/10), 27 So.3d 849, the plaintiffs brought a wrongful death action for the death of a nursing home resident, allegedly due to injuries sustained in multiple falls at the nursing home, without invoking a medical review panel. The plaintiffs identified their cause of action as one under the Nursing Home Residents’ Bill of Rights, La. R.S. 40:2010.8, et seq., and attempted to characterize the defendant nursing home’s negligence as “ordinary negligence,” including under-staffing of the nursing home and its failure to “deliver custodial care and services that a reasonably careful person would have provided under similar circumstances .... ” Id., 09-546 at p. 3, 24 So.3d at 286-87. The defendant nursing home excepted on the grounds of prematurity, and after considering the Coleman factors, the appellate court found that the petition’s “phraseology does not circumvent the requirement that the claim must be first submitted to the medical review panel.” Id., 09-546 at p. 4, 24 So.3d at 287.

Prominent among the relevant allegations in the present matter is plaintiffs allegation that the Center’s employees failed to “handle and/or transfer” her mother “in a manner consistent with her medical condition.” (Emphasis added.) To handle a nursing home resident in a manner “consistent with her medical condition” necessarily requires the professional skill and ability to assess the medical condition and to decide upon a course of action that takes account of that condition. As the court in Hernandez observed, “[t]he level of supervision and monitoring required by a patient necessarily requires an assessment of his medical condition and capabilities.” Id., 09-546 at p. 5, 24 So.3d at 287. The third Coleman factor is therefore met as to plaintiffs allegation described above, in addition to the |inother allegations relating to the Center’s failure to promptly discover the injury.

In this case, as in Hernandez, the nursing home resident had been diagnosed with dementia upon admission to the nursing home, and required “total” or “around-the-clock” nursing care. A “nursing home” such as the Center “undertakes ... to provide maintenance, personal care, or nursing for persons who, by reason of illness or physical infirmity or age, are unable to properly care for themselves.” La. R.S. 40:2009.2(1). Although the Center undoubtedly had routine custodial duties regarding plaintiffs mother, in addition to its duties as a nursing home and health care provider, the totality of the circumstances alleged in plaintiffs petition clearly occurred in the overall context of the health care provider-patient relationship, given the patient’s need for total nursing care. We conclude that the fourth Coleman factor is met, as are the fifth and sixth factors.

In Cashio v. Baton Rouge Gen. Hosp., 378 So.2d 182, 183 (La.App. 1st Cir.1979), the plaintiffs’ decedent died of a “hospital staph” infection following surgery. The plaintiffs sought to characterize the basis of the hospital’s liability as the negligence of a premises owner, rather than medical malpractice based upon health care or professional services. We noted that the term “treatment” is not defined in the MMA and declined to “attempt to supply a universal definition of treatment.” Cashio, 378 So.2d at 184. We nevertheless rejected the plaintiffs’ “limited and very selective definition” of treatment as encompassing only those acts immediately involved with the surgery at issue, holding that “[a] plaintiff cannot control the progress and procedure of his claim by semantically designating one capacity of two or more belonging to the defendant as the desired one” in order to avoid the medical review panel procedure. Id. For similar reasons, |, r plaintiff’s conclusory allegations that “the alleged negligent handling of her mother ... were [sic ] strictly custodial duties of the nursing home and were not related to any medical treatment for her mother” cannot control the proper procedural disposition of this matter. See also Hernandez, 09-546 at pp. 3-4, 24 So.3d at 286-87. The fact that plaintiff may have made allegations sounding in both medical malpractice and general tort law does not remove her petition from the penumbra of the MMA, if a claim for medical malpractice is stated. See McKnight v. D & W Health Services, Inc., 02-2552, p. 7 (La.App. 1st Cir.11/7/03), 873 So.2d 18, 23.

Plaintiffs allegations here are sufficient to permit the determination that a medical malpractice claim has been asserted under the MMA, despite Ms. Hamilton’s artifice in drafting her petition to attempt to avoid the mandatory review panel procedure. We therefore conclude that a remand to the trial court is unnecessary, given the allegations of the petition discussed above. See, e.g., Hernandez, 09-546 at p. 5, 24 So.3d at 287-88, distinguishing Richard v. La. Extended Care Centers, Inc., 02-0978 (La.1/14/03), 835 So.2d 460, and Munson v. Lakewood Quarters Ltd. P’ship, 06-1428 (La.App. 1st Cir.7/18/07), 965 So.2d 448.

The judgment of the trial court is reversed, the dilatory exception of the defendant-relator, Baton Rouge Health Care Center, is sustained, and the petition and causes of actions of the plaintiff-respondent, Janice Hamilton, are dismissed without prejudice. All costs of court are assessed to the plaintiff-respondent.

WRIT GRANTED; REVERSED AND RENDERED.

WHIPPLE J., dissents for reasons assigned.

HUGHES J., dissents for reasons assigned by WHIPPLE, J.

WHIPPLE, J.,

dissenting.

|¶1 respectfully disagree with the majority’s conclusion that the Center proved its entitlement to have this matter first submitted to a medical review panel based solely on the allegations of plaintiffs petition, which must be accepted as true for purposes of this exception and which constitute the entirety of the facts upon which the decision on the exception must be based, given the Center’s failure to offer any evidence regarding the substance of plaintiffs claims herein to support the exception.

As the Louisiana Supreme Court noted in Richard v. Louisiana Extended Care Centers, Inc., 2002-0978 (La.1/14/03), 835 So.2d 460, 469, not all negligent acts by a nursing home will constitute medical malpractice under the MMA. To constitute a medical malpractice claim, the alleged negligent act, even if it involves the “handling of a patient, including loading and unloading of a patient,” must be related to the nursing home resident’s medical treatment at the nursing home under the requirements of Louisiana law. Richard, 835 So.2d at 468-469; Munson v. Lakewood Quarters Limited Partnership, 2006-1428 (La.App. 1st Cir.7/18/07), 965 So.2d 448, 450.

In my view, the allegations of plaintiffs petition alone are inadequate to establish that the alleged negligence was related to treatment or was caused by a dereliction of professional skill and, thus, constituted medical malpractice. The mere fact that plaintiff alleged that her mother, upon admission to the Center as a resident, had been diagnosed with diabetes, hypertension and dementia; was under [2the exclusive care, custody and control of the Center; was restricted to a wheelchair; and required total nursing care simply does not establish that the injuries and resulting death of plaintiffs mother was caused by or during rendition of nursing care or medical treatment, rather than by the mishandling of plaintiffs mother during a routine wheelchair transfer unrelated to any medical treatment. Moreover, the actual allegations that the Center repeatedly assured plaintiff that her mother did not have a fracture of her lower extremity does not necessarily establish, as suggested by the majority, that the cause of action arises from the Center’s failure to discover, diagnose and properly treat the fracture, as opposed to the Center attempting to cover up or hide its acts of negligence in handling plaintiffs mother, which could constitute an intentional tort outside the realm of the MMA. See LSA-R.S. 40:1299.41(A)(12). Indeed, it is clear from a reading of the allegations of plaintiffs petition that plaintiff had not been fully informed by the center about the actions or inactions of its employees that caused her mother’s injuries and resulting death.

Accordingly, in my view, even accepting the allegations of the petition as true, the Center failed to cany its burden, relying on the petition alone, that this matter is actually governed by the MMA and, thus, requires review by a medical review panel. Rather, because the issue of the applicability of the MMA herein cannot be sufficiently determined on the record before us, the case should be remanded for a full evidentiary hearing on whether the purported acts of the Center, negligent and otherwise, constitute medical malpractice under the factors set forth in Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303, 315-316. See Richard, 835 So.2d at 469 and Munson, 965 So.2d at 454.

For these reasons, I respectfully dissent.

      . See n. 4. infra.

      . We do not interpret the phrase "handling of a patient” as strictly limited to physical contact, movement, or transportation of a patient. In McKnight v. D & W Health Services, Inc., 02-2552, p. 5 (La.App. 1st Cir. 11/7/03), 873 So.2d 18, 21. we observed that the MMA docs not define "handling of a patient.” and that the generally prevailing meaning of "handling" in that context may be defined as including "the management [of] or having overall responsibility for supervising or directing a patient.” See also Merriam-Webster’s Collegiate Dictionary 565 (11th ed.2008).

      . We note that in its written reasons for judgment, the trial court misinterpreted the petition as alleging that "while in the process of being transferred to the hospital, the decedent’s femur was fractured while [she was] in the custody of [the Center’s] staff.” (Emphasis added.) This conclusion would mean that the alleged "negligent transfer” incident occurred on May 19, 2008, after plaintiff requested that her mother be evaluated at the hospital and eight days after the alleged onset of pain and other symptoms. The trial court's conclusion has no support in the petition or elsewhere in the record.

      . Reading plaintiffs petition in its entirety, it is evident that plaintiff is relying upon the circumstantial evidence of her recited chronology of May 11 through May 19, 2008 and the doctrine of res ipsa loquitur in framing her allegations of the Center’s purported negligent transfer from wheelchair to bed. This conclusion is supported by her later concluso-ry allegation that "the incident described herein could not have occurred but for the negligence of defendants [sic ] employees,” a classic invocation of res ipsa loquitur, and plaintiff's failure to specify the date upon which the alleged incident occurred. For the purpose of testing the sufficiency of a pleading, allegations of time and place are material and shall be considered as all other allegations of material matter. La. C.C.P. art. 860.


author: GRAVES, Presiding Justice,

text:
    Kenneth MOORE, Jr. v. STATE of Mississippi.
    No. 2008-KA-00946-SCT.
    Supreme Court of Mississippi.
    Nov. 4, 2010.
    Rehearing Denied Feb. 10, 2011.

      Latrice Westbrooks, Jackson, attorney for appellant.
    Office of Attorney General by Stephanie Breland Wood, attorney for appellee.
    Before GRAVES, P.J., LAMAR and KITCHENS, JJ.
   GRAVES, Presiding Justice,

for the Court:

¶ 1. Kenneth Moore, Jr., was convicted of murder in the Circuit Court of Holmes County and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). The record does not indicate that Moore filed any post-trial motions, but he subsequently filed this appeal. We find that the issues raised by Moore are without merit and that his conviction should be affirmed.

FACTS

¶2. On the night of August 19, 2007, Moore, Cordarius McChriston and numerous others gathered at a nightclub in Holmes County called Club Greasy. During the night, some minor verbal exchanges occurred between Moore and McChriston. The exchanges later escalated into a brief, physical fight outside the club, during which McChriston apparently got the best of Moore. Moore’s brother, Latravis Skinner, broke up the fight and walked Moore a distance away from the area to try to calm him down. Junior Williams, who was the owner of Club Greasy, Corey Johnson, and some others accompanied the pair and attempted to calm Moore. After several minutes, Moore indicated that he was going to retrieve his baseball cap from the ground near where the fight occurred. Instead, Moore approached McChriston and started shooting at him. McChriston, who had been struck by a bullet to the chest, ran away as Moore gave chase and continued firing more shots. McChriston jumped a fence and ran to a neighboring club called the Safe House, where he collapsed. McChriston died from his injury.

¶ 3. After a jury trial in the Circuit Court of Holmes County, Moore was convicted of murder and sentenced to life imprisonment in the custody of the MDOC. The record in this matter does not indicate that any post-trial motions were filed. Moore then filed this appeal.

ANALYSIS

I. Whether the trial court erred when it failed to grant defendant’s motion for continuance.

¶ 4. Moore asserts that the trial court abused its discretion in failing to grant the motion for continuance he requested on the date of trial. The State asserts that Moore is procedurally barred from raising this issue because it was not raised in a motion for new trial. Alternatively, the State asserts that this issue is without merit. The State is correct.

¶ 5. In Metcalf v. State, 629 So.2d 558 (Miss.1993), this Court said:

On a motion for a new trial, certain errors must be brought to the attention of the trial judge so that he may have an opportunity to pass upon their validity before this Court is called upon to review them. Weyen v. Weyen, 165 Miss. 257, 139 So. 608 (1932). For example, the denial of a continuance in the trial court is not renewable unless the party whose motion for continuance was denied makes a motion for a new trial on this ground.

Metcalf, 629 So.2d at 561-62.

¶6. The record does not indicate that Moore ever filed a motion for new trial. Therefore, this issue is proeedurally barred. Notwithstanding the procedural bar, Moore’s assertion is without merit. In Conway v. State, 915 So.2d 521 (Miss.2005), Conway’s attorney filed a motion for continuance five days before trial on the grounds that he was unprepared for trial. This Court has said:

A circuit court judge has wide discretion in deciding whether to grant a continuance, and the denial of a motion for continuance will not be reversed absent a showing of substantial prejudice or manifest injustice. Simmons v. State, 805 So.2d 452, 484 (¶72) (Miss.2002). The moving party bears the burden of establishing prejudice. Wilson v. State, 755 So.2d 2, 5 (¶ 11) (Miss.Ct.App.1999). Conway offers no proof that his attorney at trial was unprepared or that he was prejudiced from his attorney’s lack of preparation. This issue is without merit.

Conway, 915 So.2d at 525.

¶ 7. In the instant case, Moore’s attorney moved for a continuance on the date of trial, saying that she was not prepared because she had been busy with other cases. The trial court denied the motion, noting that counsel had known of the trial setting for some four months. On appeal, Moore’s counsel asserts that the trial court erred in not granting the continuance because the State had not yet propounded discovery. Specifically, counsel is referring to audiotapes of statements. The record shows that counsel was provided copies of the tapes and the accompanying transcript, but that the tapes were blank. However, counsel was not certain that the tapes were blank until she attempted to listen to the tapes enroute to the courthouse on the date of trial. Further, counsel did not notify the District Attorney’s office of the problem until the date of trial. Moreover, the trial court recessed the proceeding so counsel could listen to the tape in question, Moore’s statement, which was approximately fifteen minutes in length, and compare it to the previously provided transcript. Finally, counsel was given an opportunity to cross-examine Holmes County Sheriffs Deputy Chief Roosevelt March regarding the content of the tape and the accompanying transcript.

¶ 8. We find that Moore has failed to establish that the trial court abused its discretion in denying the motion for continuance. Further, Moore has failed to establish any showing of substantial prejudice.

II. Whether the trial court erred when it allowed a prejudicial photograph to be admitted for identification purposes when the defendant did not contest identification of the deceased.

¶ 9. Moore asserts that the trial court abused its discretion in allowing an autopsy photograph of McChriston to be admitted for identification purposes.

¶ 10. In Noe v. State, 616 So.2d 298 (Miss.1993), this Court said:

It is well settled in this state that the admission of photographs is a matter left to the sound discretion of the trial judge and that his decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion .... “A review of our case law indicates that the discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” ... A photograph, even if gruesome, grisly, unpleasant, or even inflammatory, may still be admissible if it has probative value and its introduction into evidence serves a meaningful evidentiary purpose.

Id. at 303 (citations omitted). Further, this Court has said that photographs have an evidentiary purpose “when they: (1) ‘aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; (3) supplement or clarify witness testimony.’ ” Jordan v. State, 995 So.2d 94, 110 (Miss.2008).

¶ 11. In the instant case, the photograph depicts the head and neck area of McChriston and is neither gruesome nor inflammatory. Further, the photograph was introduced for identification purposes during the testimony of Dr. Steven Hayne. Accordingly, we And that this issue is without merit.

III. Whether a mistrial should have been declared in light of juror misconduct.

¶ 12. Moore asserts that the trial court should have sua sponte granted a mistrial because juror Sarah Wade was related to potential witness Dewan McGee and had traveled to the courthouse with him. Moore asserts that Wade did not acknowledge this during voir dire. However, Moore’s assertion mischaracterizes what occurred. During voir dire by the State, the following exchange occurred:

Q. Dewan Magee, who lives on Wade Road? Anybody know Mr. Magee? Mr. Newman? Okay, Mr. Newman and Ms. Wade. Anything about, Ms. Wade, anything about your knowledge of Mr. Ma-gee, if he was called as a witness, you could not be fair and impartial?
A. No.

¶ 13. Wade was never asked whether she was related to Magee. Further, Moore’s counsel did not follow up on Wade’s response during the State’s voir dire that she knew Magee. More importantly, Moore’s counsel did not object to Wade being seated on the jury. During the State’s case-in-chief, Moore’s counsel then provided the trial court information that Wade and Magee had ridden to court together because Magee did not have transportation. The trial court then held a conference with Wade in which Wade reiterated that nobody had asked if she was related to Magee, but that she had informed the State that she knew him. Wade also explicitly stated that she had never discussed the case with Magee. Moore’s counsel later informed the trial court that she had heard through a relative of Moore that Wade and another juror knew McChriston’s family. The trial court ultimately removed Wade because of the possible appearance of impropriety of her riding with Magee. Moore’s counsel did not move for a mistrial on this ground.

¶ 14. In Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 418-19 (Miss.1993), this Court said:

Once an allegation of juror misconduct arises, then the next step is to consider whether an investigation is warranted. In order for the duty to investigate to arise, the party contending there is misconduct must make an adequate showing to overcome the presumption in this state of jury impartiality. Juror polling shall only be permitted by an attorney, outside the supervision of the court, upon written request.
At the very minimum, it must be shown that there is sufficient evidence to conclude that good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.

Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 418-19 (Miss.1993). Further, the “Uniform Rules of Circuit and County Court Practice, Rule 3.12 allows the judge to declare a mistrial only when the harm done would render the defendant without hope of receiving a fair trial.” Reed v. State, 764 So.2d 511, 513 (Miss.2000) (quoting Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990)).

¶ 15. Moore’s counsel failed to inquire during voir dire into Wade’s relationship with Magee. Moore’s counsel failed to object to Wade being seated on the jury. Moore’s counsel failed to inform the trial court of any relationship between Wade and Magee until the trial had already begun. Moore’s counsel failed to move for a misti’ial. The trial court thoroughly investigated the allegations and found that there had been no inappropriate communication. The trial court removed Wade pri- or to any deliberations to avoid the appearance of any impropriety. Further, Magee indicated he did not know anything about the case, and he did not testify. Moore has failed to establish that good cause exists to believe that improper outside influence occurred or prejudicial information was exchanged. Accordingly, we find that this issue is without merit.

IV. Whether the trial court erred in allowing speculative testimony.

¶ 16. Moore asserts that, during the testimony of Skinner, Moore’s brother, that speculative testimony was elicited regarding the body weight of McChriston. Moore cites two cases, Edmonds v. State, 955 So.2d 787 (Miss.2007), and Balouch v. State, 938 So.2d 253 (Miss.2006). However, Edmonds involved speculative testimony of an expert witness. Edmonds, 955 So.2d at 791. In Balouch, the Court found that the assignment of error involving speculative testimony was without merit and that there was no need for discussion. Balouch, 938 So.2d at 260. Further, in the instant case, the testimony complained of was merely an attempt to find out whether Skinner knew if Moore was larger or smaller in physical size than McChriston. We find that this issue is without merit.

V. Whether the evidence supports a verdict of manslaughter rather than murder.

¶ 17. Moore asserts that the evidence was insufficient to support a verdict of murder. Specifically, Moore asserts that the evidence showed that the killing was done in the heat of passion, thereby mitigating the killing to manslaughter. The State asserts that Moore is procedurally barred from challenging the sufficiency of the evidence because he did not renew his motion for directed verdict at the close of his case in chief. The State also asserts that Moore did not present a peremptory instruction to the trial court or file a motion for judgment notwithstanding the verdict.

¶ 18. This Court, in Wright v. State, 540 So.2d 1, 3 (Miss.1989), said:

In Harris v. State, 413 So.2d 1016, 1018 (Miss.1982), we held:
It is elemental that after a motion for directed verdict is overruled at the conclusion of the State’s evidence, and the appellant proceeds to introduce evidence in his own behalf, the point is waived. In order to preserve it, the appellant must renew his motion for a directed verdict at the conclusion of all the evidence. Ross v. State, 234 Miss. 309, 106 So.2d 56 (1958); Fields v. State, 293 So.2d 430 (Miss.1974). Also see State v. Russell, 358 So.2d 409, 413 (Miss.1978).
The appellants waived error, if any, in the court’s refusal to grant them a directed verdict at the close of the State’s case-in-chief when they proceeded to present evidence in their behalf. Because they did not renew this motion by way of a motion for a directed verdict at the conclusion of the evidence or via a motion for a peremptory instruction, any objection they may have had to the sufficiency of the evidence is waived. Harris v. State, 413 So.2d 1016, 1018 (Miss.1982).

Wright v. State, 540 So.2d 1, 3 (Miss.1989). See also Turner v. State, 721 So.2d 642, 647 (Miss.1998); and Green v. State, 631 So.2d 167, 171 (Miss.1994).

¶ 19. Moore did move for a directed verdict at the close of the State’s case-in-chief. However, Moore did not renew this motion at the conclusion of all of the evidence. Therefore, any objection Moore has to the sufficiency of the evidence has been waived. Notwithstanding that Moore is procedurally barred from objecting to the sufficiency of the evidence, we find that this issue is without merit.

¶ 20. The jury received a manslaughter instruction. Moore agreed to the use of the State’s manslaughter instruction, S-2, because the proposed defense instruction did not include the elements of manslaughter. The State’s instruction said, in relevant part:

Therefore, if you should find the State has failed to prove all of the essential elements of Murder beyond a reasonable doubt, you will then proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all of the essential elements of the lesser crime of Manslaughter.
If you find from the evidence in this Cause, beyond a reasonable doubt, that the Defendant, KENNETH MOORE, JR., on or about August 19, 2007, in Holmes County, Mississippi, did willfully, unlawfully, feloniously and without authority of law, kill Cordarius McChri-ston, without malice, in the heat of passion, by the use of a deadly weapon, then you shall find the Defendant guilty of Manslaughter.
If the State has failed to prove any essential element of the lesser included offense of Manslaughter beyond a reasonable doubt, you shall find the Defendant, KENNETH MOORE, JR., not guilty.

¶ 21. The trial court also granted an amended heat-of-passion instruction offered by the defense, which said:

The term heat of passion is defined as a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

¶22. The jury found the defendant guilty of murder, pursuant to instruction S-l, which said:

Kenneth Moore, Jr., has been charged in the indictment with the offense of murder. If you find from all the evidence in this case beyond a reasonable doubt that:
1. Kenneth Moore, Jr. on or about August 19, 2007, in Holmes County Mississippi;
2. did wilfully, unlawfully, feloniously and without authority of law;
3. kill and murder Cordarius McChri-ston, a human being;
4. with malice aforethought or the deliberate design to kill said Cordarius McChriston;
5. by shooting him with a gun;
then, you shall find the defendant, Kenneth Moore, Jr., guilty of murder as charged in the indictment.
If the state has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find the defendant, Kenneth Moore, Jr., not guilty of murder.

¶23. As summarized by the Court of Appeals:

When presented with a claim that the evidence is insufficient to sustain a conviction, we review the record in “a light most favorable to the State.” Robinson v. State, 940 So.2d 235, 239-40 (¶13) (Miss.2006) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). This Court “must accept as true all evidence consistent with [the defendant’s] guilt, together with all favorable inferences that may be reasonably drawn from the evidence, and disregard the evidence favorable to the defendant.” Id. at 240 (¶ 13). If the evidence is “of such quality and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [persons] in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

Fair v. State, 25 So.3d 380, 382-83 (Miss.Ct.App.2009).

¶ 24. Murder is “(1) The killing of a human being without the authority of law by any means” or “(a) When done with deliberate design to effect the death of the person killed or of any human being....” Miss.Code Ann. § 97-3-19(l)(a) (Rev. 2006). Manslaughter is “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense....” Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 25. Moore asserts that the evidence shows he killed McChriston in the heat of passion, mitigating the killing to manslaughter. Moore’s assertion is not supported by the record in this matter. Witnesses for both the State and the prosecution testified consistently as to what occurred on the night in question. Witnesses testified that the fight lasted only a couple of minutes. Although there was testimony, as mentioned above, that Moore was losing the fight, the only evidence of injury sustained by Moore was a scrape on his elbow and a bloody nose.

¶ 26. Junior Williams, the owner of Club Greasy, specifically said:

Q. And tell us what you saw when you got outside the club?
A. There was a group of guys standing down there at the end of the driveway.
Q. What were they doing?
A. They wasn’t doing nothing right then. By the time I got to them, they went to fighting.
Q. And how long did this fight last?
A. Probably about three minutes, if that long.

Williams also testified that Moore previously had been told that he was not to be at the club.

¶ 27. Moore’s brother, Latravis Skinner, broke up the fight, and McChriston and Moore separated, with McChriston walking back toward the building and Moore walking toward the end of the driveway. Williams, Skinner, Corey Johnson, and some others talked to Moore and attempted to calm him down. Williams testified as follows:

Q. [Prosecutor] Tell me what you said to [Moore],
A. I said, “Man, the police are coming now, and you just go and we’ll forget all of this.” He was like, “All right. I’m through with it.” He walked down and broke to the right and went back up there and went to shooting.

Williams further testified:

Q. Okay. Well, let me ask you this: When the fight was broken up, was there any indication that it would continue at some point?
A. After we talked to them, I thought it was through with.

¶ 28. Gregory Malone testified that, after the fight, Moore stayed down the road talking to Skinner and the others for approximately fifteen to twenty minutes before he returned and shot McChriston. Jennifer Grant testified, in relevant part:

Q. Okay. And while you were at this club, did you have an occasion to see anything that you thought was unusual?
A. Yes.
Q. Tell us what it was.
A. They had an altercation like a fight was going on between Kenny Moore and [McChriston], and once the fight and everything was over with, people tried to talk to Kenny Moore.
Q. Who did you see try to talk to Kenny Moore.
A. Corey Johnson and Jamario Johnson and his brother, Travis Skinner.
Q. And how do you know they were trying to talk to Kenny Moore?
A. Because they had broke them up, and they took him to the side.
Q. Okay. And after they — well, did, in fact, you saw them together?
A. Yes.
Q. All right. Did it appear that they did talk to him?
A. Yes.
Q. Okay. Without telling us what they said, what happened after that conversation with him?
A. Well, after they got through talking to him, he walked back. I thought he was like going back to his car or something to sit down.
Q. Okay, now, who is this “he” you’re talking about?
A. Kenny Moore.
Q. Okay.
A. So he just pulled out a gun and shot.

Grant further testified:

Q. Okay. What happened after that?
A. [McChriston] ran and jumped off the fence, and he shot at him again. He fell, and he shot him again. So [McChriston] ran into the Safe House, and Kenny Moore ran behind him. But he stayed on the Greasy side and ran down behind him.

¶ 29. Marilyn Skinner testified that she walked outside the club and saw Moore and McChriston fighting. She said:

And they was fighting, so it was by my truck. So I said, “Get off my GD truck.” But they still fighting. They got back, you know, they moved back from my truck, and then they were just still fighting, and along, and Travis [Skinner] came, which is Kenny Moore’s brother, and said, “That’s enough,” picked him up by the arm, and they walked towards the end of the road. I don’t know how far they went, but that’s what I saw.

Marilyn Skinner further testified:

Q. Okay. Did you see Kenny come back at some time?
A. Yes, I did.
Q. What happened when he came back?
A. I was standing next to the front door of my car, and Lucious, as they called him, his nickname, and he was standing right beside me, and he said, “They usually say Kenny Moore carries a gun.” So when he said that—
Q. Do you know Lucious’ real name?
A. James Griffin, I think.
Q. Okay.
A. And when he said that, I looked around, I seen Kenny Moore coming back up with his right arm up like this right here with a gun in his hand, and I took off running from the front of my truck, and I ran into my sister, and we hit the ground.

¶ 30. Jermaine Young testified that he had seen a “little argument” between Moore and McChriston. Young also testified:

After they started arguing, they started fighting. After they got through fighting, Kenny Moore’s brother comes out of the club and picked him up and tell him to leave him alone, that it was over with. It was like three or four more other guys telling them to leave it alone, so like five or ten minutes later, he come back up and start shooting [McChriston],

Young further testified that, after shooting and chasing McChriston, Moore sat on a car in the parking lot of the Safe House, as McChriston lay dying at the door of the Safe House.

¶ 31. Corey Johnson testified that Moore said he was going to retrieve his hat after the fight and that was when Moore shot McChriston.

¶ 32. This Court previously has said: “Whether a homicide is classified as a murder or manslaughter is ordinarily an inquiry to be made by the jury.” Hodge v. State, 823 So.2d 1162 (Miss.2002). In the instant case, the jury was instructed on both manslaughter and murder. The jury considered the evidence and concluded that Moore committed murder. That conclusion is supported by the record in this case. Therefore, this issue is without merit.

CONCLUSION

¶ 33. We find that no reversible error was committed by the trial court, and that the evidence supports the verdict of guilty. Therefore, Moore’s judgment of conviction and sentence of life imprisonment in the custody of the Mississippi Department of Corrections is affirmed.

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

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . Appellate counsel for Moore provided an incorrect citation for this case. We supply the correct citation.


author: KITCHENS, Justice,

text:
    STATE of Mississippi v. Johnny DELANEY.
    No. 2009-CA-01640-SCT.
    Supreme Court of Mississippi.
    Jan. 13, 2011.
    James H. Powell, III, Steven Waldrup, Office of the Attorney General by John Henry, Jr., attorneys for appellant.
    Edward Blackmon, Jr., Canton, attorney for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. This is a case of first impression, involving an appeal by the State from the dismissal of an indictment with prejudice. This Court is asked to interpret Mississippi Code Section 99-3-28 (Rev.2007), which requires that a probable cause hearing be held prior to the issuance of warrants for the arrest of law enforcement officers and other enumerated classes of persons. Specifically, the Court is asked to determine whether Section 99-3-28 is applicable to the present case and whether a lack of compliance with this statute warranted dismissal of the indictment. Finding that Section 99-3-28 does not apply once an indictment has been returned by a grand jury, we reverse the dismissal, reinstate the indictment, and remand the case for trial.

Facts and Procedural History

¶ 2. On December 1, 2008, Johnny Delaney, a trooper with the Mississippi Highway Safety Patrol, was indicted by a Holmes County grand jury for one count of extortion pursuant to Mississippi Code Section 97-11-38 (Rev.2006). The indictment alleged that Delaney, while acting under color of his office, promised Jessie Jordan that he would dismiss Jordan’s speeding ticket in exchange for cash. Following the return of the indictment, the Holmes County Circuit Clerk immediately issued a capias for Trooper Delaney’s arrest. Bail was set and posted on December 19, 2008. On December 22, 2008, Delaney waived formal arraignment and entered a plea of not guilty.

¶ 3. On September 16, 2009, the defendant filed a motion to dismiss the indictment, arguing that the State had failed to comply with Mississippi Code Section 99-3-28, which provides, in its entirety,

(1)(a) Except as provided in subsection (2) of this section, before an arrest warrant shall be issued against any teacher who is a licensed public school employee as defined in Section 37-9-1, a certified jail officer as defined in Section 45-4-9, a counselor at an adolescent offender program created under Section 43-27-201 et seq., or a sworn law enforcement officer within this state as defined in Section 45-6-3 for a criminal act, whether misdemeanor or felony, which is alleged to have occurred while the teacher, jail officer, counselor at an adolescent offender program or law enforcement officer was in the performance of official duties, a probable cause hearing shall be held before a circuit court judge. The purpose of the hearing shall be to determine if adequate probable cause exists for the issuance of a warrant. All parties testifying in these proceedings shall do so under oath. The accused shall have the right to enter an appearance at the hearing, represented by legal counsel at his own expense, to hear the accusations and evidence against him; he may present evidence or testify in his own behalf.
(b) The authority receiving any such charge or complaint against a teacher, jail officer, counselor at an adolescent offender program or law enforcement officer shall immediately present same to the county prosecuting attorney having jurisdiction who shall immediately present the charge or complaint to a circuit judge in the judicial district where the action arose for disposition pursuant to this section.
(2) Nothing in this section shall prohibit the issuance of an arrest warrant by a circuit court judge upon presentation of probable cause, without the holding of a probable cause hearing, if adequate evidence is presented to satisfy the court that there is a significant risk that the accused will flee the court’s jurisdiction or that the accused poses a threat to the safety or wellbeing [sic] of the public.

Miss.Code Ann. § 99-3-28 (Rev.2007).

¶ 4. The trial judge conducted a hearing on Delaney’s motion to dismiss and heard argument by both sides. Defense counsel contended that the language of the statute is mandatory, and that there are but two exceptions to the requirement of holding a probable cause hearing, neither of which was present in his client’s case. The district attorney argued that Section 99-3-28 applied only to charges filed in justice court or municipal court, and that the indictment obviated the need for a probable cause hearing. He also argued that the circuit court could not apply the statute to the present case because it conflicts with Mississippi Uniform Circuit and County Court Rule 7.06, which governs indictments. The trial judge considered the arguments and found that the probable cause hearing mandated by Section 99-3-28 could not be bypassed by means of an indictment. The trial judge also found that the proper remedy was dismissal with prejudice because, she opined, if Delaney were to be indicted again on the same charge, he would be subjected to double jeopardy.

¶ 5. The State timely appealed the dismissal, challenging the applicability and the constitutionality of Section 99-3-28. Because the validity of a statute was being challenged, this Court ordered the parties to serve the Attorney General with copies of their briefs and allowed the Attorney General thirty days from the last date of service to file a response. See Miss.Code Ann. § 7-5-1 (Rev.2002) (tasking the Attorney General with the duty to intervene and argue the constitutionality of any challenged statute); M.R.A.P. 44(a) (requiring service of brief on the Attorney General when the validity of a statute is challenged). The Attorney General timely filed a response defending the statute in question.

Issues

¶ 6. The State raises four issues on appeal: (1) whether Section 99-3-28 applies in cases in which an indictment has been returned by a grand jury; (2) whether the statute is an unconstitutional infringement on this Court’s rule-making powers; (3) whether the statute violates equal protection of the law; and (4) in the alternative, whether double jeopardy requires dismissal with prejudice. Finding that an indictment obviates the need for a hearing pursuant to Section 99-3-28, we do not address the equal protection or double jeopardy issues.

Discussion

¶ 7. All points of error raised by the State involve questions of law, which are reviewed on appeal under a de novo standard of review. Debrow v. State, 972 So.2d 550, 552 (Miss.2007) (citing Biglane v. Under the Hill Corp., 949 So.2d 9, 14 (Miss.2007)).

¶ 8. The State argues that, once an indictment has been issued, a probable cause hearing pursuant to Mississippi Code Section 99-3-28 is unnecessary. The State points to case law which provides that, once a defendant has been indicted by a grand jury, probable cause has been established, and a preliminary hearing is no longer required. Shields v. State, 702 So.2d 380, 383 (Miss.1997) (quoting Mayfield v. State, 612 So.2d 1120, 1129 (Miss.1992)). In addition, Rule 6.05 of the Uniform Rules of Circuit and County Court provides, in relevant part, “[a] defendant who has been indicted by a grand jury shall not be entitled to a preliminary hearing.” The reasoning behind the rule has been explained by this Court as follows:

It is true ... that the accused is permitted to confront and cross-examine his accusers and to discover evidence during the course of a preliminary hearing. We are of the opinion, however, that these functions are merely incidental and wholly subordinate to the true purpose of a preliminary hearing: determining whether probable cause exists. Once a defendant is indicted by a grand jury, that purpose is fulfilled and the whole issue of a preliminary hearing and all privileges which attach thereto become moot.

Mayfield, 612 So.2d at 1129. Moreover, this Court has established that the denial of a preliminary hearing, on its own, “does not void a subsequent conviction.” Esparaza v. State, 595 So.2d 418, 423 (Miss.1992) (quoting Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)).

¶ 9. Our case law and uniform rules do not address probable cause hearings pursuant to Section 99-3-28, and a traditional preliminary hearing is somewhat different from the sort of statutory probable cause hearing under review in this case. For example, Section 99-3-28 requires that the hearing take place before arrest and in the circuit court, while a traditional preliminary hearing occurs after arrest and in a municipal court, justice court, or county court. Nevertheless, the principal purpose — though not the only purpose — of both hearings is the same: to determine whether probable cause for arrest exists.

¶ 10. The plain language of the statute does not make exceptions for cases in which indictments have been returned. However, to require a probable cause hearing pursuant to Mississippi Code Section 99-3-28 after an indictment has been returned by a state grand jury would create an inherent conflict with this Court’s precedent and its rules.

¶ 11. It is now well established that “the constitutional concept of separation of powers dictates that it is within the inherent power of this Court to promulgate procedural rules to govern judicial matters.” State v. Blenden, 748 So.2d 77, 88 (Miss.1999) (citing Newell v. State, 308 So.2d 71 (Miss.1975)). See also Miss. Const, art. 1, §§ 1, 2 (providing for separation of governmental powers). Thus, when a statute conflicts with this Court’s rules regarding matters of judicial procedure, our rules control. Stevens v. Lake, 615 So.2d 1177, 1183-84 (Miss.1993) (citations omitted). Because Section 99-3-28 conflicts with this Court’s precedent and uniform rules in that it does not provide an exception for indictments, we hold that the procedural requirements of Section 99-3-28 are inapplicable once an indictment has been returned by a Mississippi grand jury. Therefore, the trial judge erred in dismissing the indictment based on the absence of a probable cause hearing pursuant to Section 99-3-28.

Conclusion

¶ 12. Once Delaney had been indicted, the need for a hearing pursuant to Mississippi Code Section 99-3-28 was obviated. Because the trial judge erred by dismissing the indictment on this basis, we reverse the dismissal, reinstate the indictment, and remand the case for further proceedings.

¶ 13. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR.

      . This is a relatively new Mississippi statute, which took effect July 1, 2001. Originally, the statute applied only to public school teachers but was amended in 2002 to include law enforcement officers.