author: RANDOLPH, Justice, GRAVES, Justice, DICKINSON, Justice,

text:
    Anthony Terrell BOOKER a/k/a Robert Booker v. STATE of Mississippi.
    No. 2004-CT-02143-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2008.
    Rehearing Denied April 9, 2009.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court.

¶ 1. The facts in the case sub judice were aptly summarized by the Mississippi Court of Appeals, see Booker v. State, 5 So.3d 411, 416, 2008 WL 224070 at *1, 2008 Miss.App. LEXIS 77 at ⅜3-4 (Miss.Ct.App. January 29, 2008), and do not bear repeating. In short, Anthony Terrell Booker was arrested for the murder of Dorian Johnson and subsequently was indicted for capital murder. On May 17, 2004, Booker was convicted by a jury in the Circuit Court of Jackson County and sentenced to life imprisonment without the possibility of parole. Booker’s appeal therefrom was assigned to the Court of Appeals, which affirmed both the conviction and sentence. See id. at 424, 2008 WL 224070 at *10, 2008 Miss.App. LEXIS 77 at *27. Booker’s “Petition for Writ of Certiorari,” raising only the issue of improper peremptory strikes by the prosecution pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was then granted by this Court.

ISSUE

¶ 2. This Court will consider:

(1) Whether the circuit court and Court of Appeals erred in finding the prosecution’s peremptory strike of juror Chauncey Thompson to be permissible under Batson.

ANALYSIS

¶ 3. On Batson determinations, this Court has established that:

[a] reversal will only occur if the factual findings of the trial judge appear to be “clearly erroneous or against the overwhelming weight of the evidence.” Tanner [v. State], 764 So.2d 385, 393 (Miss.2000)_ “On appellate review, the trial court’s determinations under Batson ... are accorded great deference because they are based, in a large part, on credibility.” Coleman v. State, 697 So.2d 777, 785 (Miss.1997).... The term “great deference” has been defined in the Batson context as meaning an insulation from appellate reversal any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d [1346,] 1349 (Miss.1987).

Smith v. State, 835 So.2d 927, 940 (Miss. 2002). Our standard conforms to that recently enunciated by the United States Supreme Court. “On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous[].” Snyder v. Louisiana, — U.S.-,-, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175, 185, 2008 U.S. LEXIS 2708 at *21 (2008). See also Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)) (“[djeference to trial court findings on the issue of discriminatory intent makes particular sense in this context because ... evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ”). In Hernandez, the United States Supreme Court added that “in the absence of exceptional circumstances, we would defer to [the trial court].” Hernandez, 500 U.S. at 366, 111 S.Ct. 1859.

¶ 4. This Court previously has stated that:

[t]he Batson doctrine is not concerned with racial, gender, or ethnic balance on petit juries, and it does not hold that a party is entitled to a jury composed of or including members of [a] cognizable group. Rather, it is concerned exclusively with discriminatory [] intent [] on the part of the lawyer against whose use of his peremptory strikes the objection is interposed.

Strickland v. State, 980 So.2d 908, 915 (Miss.2008) (quoting Ryals v. State, 794 So.2d 161, 164 (Miss.2001)) (emphasis added). See also Snyder, 128 S.Ct. at 1208 (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994)) (“the Constitution forbids striking even a single prospective juror for a discriminatory purpose.”). To satisfy Batson, “[t]he trial court must ... determine whether the objecting party has met their burden to prove there has been purposeful [] discrimination [] in the exercise of peremptory challenges.” Carter v. State, 799 So.2d 40, 46 (Miss.2001) (quoting Stewart v. State, 662 So.2d 652, 557-58 (Miss.1995)) (emphasis added). See also Flowers v. State, 947 So.2d 910, 917 (Miss.2007) (citing Berry v. State, 802 So.2d 1083, 1042 (Miss.2001)) (“[t]he burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext [] for racial discrimination”) (emphasis added). Therefore, under Bat-son, the pretextual reason proffered by the prosecutor must be intended to disguise purposeful racial discrimination. See Strickland, 980 So.2d at 915; Flowers, 947 So.2d at 917; Carter, 799 So.2d at 46. Stated otherwise, the race-neutral reason proffered by the prosecutor must be a false cover for an intentional, racially discriminatory purpose.

¶ 5. In considering Booker’s Batson challenges at trial, the record clearly establishes the learned circuit judge’s appreciation of the legal principles involved. Specifically:

the procedure to follow on a Batson challenge is for the Court to indicate whether there seems to be a pattern and whether the movant has established a prima facie case for relief under Batson. ... [Tjhere were five African-American jurors on that particular panel, and ... of those five, four were struck by the State of Mississippi. I think that is sufficient to require the State to state for the record and for the Court’s consideration race-neutral reasons for the strikes.

Thereafter, Assistant District Attorney Timothy Jones responded, with respect to Thompson, that:

[t]he State’s race-neutral reason ... is that, in checking the names of our jurors, we found that he has had a marijuana conviction, a driver’s license violation, an insurance violation, a seat belt violation in Pascagoula. He was convicted on 2/5/08. And on those bases, especially the marijuana conviction, Judge, we didn’t want a convicted marijuana holder on the jury.

Circuit Judge Dale Harkey then concluded, “I find the existence of that prior criminal history is sufficiently race-neutral to justify a ... peremptory strike.”

¶ 6. Post-conviction, Booker filed a motion for a new trial, asserting that “[t]he trial court erred in failing to sustain [Booker’s] Batson challenges on five (5) Afro-American potential jurors who were peremptorily excused by the State.” In support of his motion, an affidavit of City Court Clerk Rhonda Diehl was presented to the trial judge. That affidavit provides:

[t]hat on the morning of May 17, 2004, Investigator Scott Mclrath, of the District Attorney’s Office, Pascagoula, Mississippi called your Affiant and made inquiry as to any criminal record that the potential juror, Chauncey D. Thompson, may have had with said Police Department; that your Affiant ran the name given to her by the Investigator and advised that the potential juror had been charged with four (4) misdemeanor crimes, they being Simple Possession of Marijuana, No Driver’s License, No Liability Insurance and a Seat Belt Violation; that your Affiant further advised said Investigator that all of these charges had been dismissed by the City for the reason that said potential juror was not the person who committed said four alleged misdemeanor crimes. 'Attached hereto is a print-out that was used by said Affiant when she furnished said Investigator with the information.

In response, District Attorney Tony Lawrence replied:

Your Honor, Mr. Mclrath, the investigator in my office, has been in law enforcement for twenty-something years, looks at every venire list that this office gets, and he goes in there and sees if there’s names he recognizes. He’s been in the business forever. This was one of them. He called up there ... [.] And the affidavit confirms that the information was given to him that this man had been charged with four offenses.
Now, whether those offenses had been dismissed, we didn’t have at that time. He got the first information. So, [defense counsel George Shaddock] is providing this other information. The information the State got from Mr. Mclrath’s calling the police department was read into the record, so Your Honor will be able to clearly see exactly what the State knew at that time. But it confirms that this man was charged with a crime. Four crimes.

The circuit court, uniquely in a position to observe the demeanor and assess the credibility of the district attorney’s reply, found “no evident untruths or dishonesty at all involved on the part of the State of Mississippi.” (Emphasis added). Speaking to defense counsel, the trial judge added “your subsequent investigation as evidenced by these affidavits that you’ve submitted as exhibits don’t indicate to me any basis for believing ... that these were lies told by the State of Mississippi.”

¶ 7. This ruling is entitled to “great deference[,]” see Smith, 835 So.2d at 940, and ought not be reversed “simply because we would have decided the case differently.” Easley, 532 U.S. at 242, 121 S.Ct. 1452. Rather, this Court must have a “definite and firm conviction that a mistake has been committed.” Id. (quoting United States Gypsum Co., 333 U.S. at 395, 68 S.Ct. 525). See also Snyder, 128 S.Ct. at 1207-08 (given the trial court’s “pivotal role in evaluating Batson claims[,]” the “trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.”). How can that requisite “definite and firm conviction” be reached, given clear evidence to the contrary? To do so requires a presumption of pretext by the prosecutors, when the evidence reflects, at best, no more than a mistaken belief. For Batson purposes, the investigator’s motive (real or presumed) is irrelevant, absent proof of knowledge by the lawyer exercising the peremptory strikes. See Strickland, 980 So.2d at 915 (quoting Ryals, 794 So.2d at 164) (Batson “is concerned exclusively with discriminatory intent on the part of the lawyer against whose use of his peremptory strikes the objection is interposed.”) (Emphasis added). Nonetheless, in his dissent, Justice Graves accuses District Attorney Lawrence and/or Assistant District Attorney Jones of making “blatant” and “deliberate” misrepresentations (Graves, J., Dissenting Opinion at paragraph 18) to Circuit Judge Harkey, an obligatory prerequisite under the facts of this specific case, to reach this conclusion. This omniscient finding is diametrically opposed to the eyewitness impressions recorded by the trial judge in the record, in fulfilling his pivotal role in evaluating Batson claims. Not a single witness or document gives this reviewing Court knowledge of what was conveyed to the prosecutors or special insight into either prosecutor’s state of mind, demeanor, or credibility. It is clear that the ever-present arbiter of justice, the trial judge, did not see, sense, hear, or discern these “lies.” There is no evidentiary basis in the record that the prosecutors knowingly or purposefully offered false information to the trial court to disguise their real motivation. It is more plausible that the State’s race-neutral reason was based upon an honest, albeit mistaken, belief. That determination is best left in the capable hands of the trial judge. See Snyder, 128 S.Ct. at 1208 (citations omitted) (determination of the demeanor of the attorney exercising the challenge is “particularly within a trial judge’s province[.]”); Hernandez, 500 U.S. at 365, 111 S.Ct. 1859.

¶ 8. Moreover, no evidence is present in this record that would justify a “definite and firm conviction” of purposeful racial discrimination. As the Court of Appeals commented in dicta, “it is quite apparent that, if district attorney Lawrence had accurate information at the time of his peremptory strike of Thompson, such factually accurate information was clearly still sufficient to establish a non-pretextual race-neutral reason for the strike.” Booker, 5 So.3d at 420-21, 2008 WL 224070 at *13, 2008 Miss.App. LEXIS 77 at *16. Specifically, District' Attorney Lawrence stated at the hearing on the motion for new trial that:

[Thompson] was charged and dismissed, because it wasn’t the right guy. That’s the biggest race-neutral reason I’ve ever seen when I’m putting someone on a jury. Someone who’s been charged by the police and dismissed because it was the wrong guy, I don’t want him thinking on the jury this may be the wrong guy, too.

However, the proper test is measuring what was known when the Batson decision was first made, during the jury-selection process, and for purposes of this opinion, the post-trial reasoning is disregarded.

¶ 9. In sum, this Court is not a divine overseer of all things Batson, and assuming such sovereignty would offend the great deference the law requires to be extended to trial courts. In the case sub judice, the learned trial judge found “no evident untruths or dishonesty at all involved on the part of the State of Mississippi.” This finding, the byproduct of the eyewitness impressions recorded by the trial judge in fulfilling his pivotal role in evaluating Batson claims, is entitled to “great deference.” Smith, 835 So.2d at 940. In other cases, perhaps a cold appellate record could reveal facts from which an appellate court could safely declare error. But such is not the case here. The record reveals not a single “blatant” and/or “deliberate” misrepresentation (Graves, J., Dissenting Opinion at paragraph 18), and the trial judge, acting within his province, see Snyder, 128 S.Ct. at 1208, found the proffered reason was credible, implicitly determining that the prosecutors’ demean- or did not reveal a discriminatory intent. We can be assured of this observation, for the record reveals a clear understanding by both District Attorney Lawrence and Circuit Judge Harkey of them duties and responsibilities vis-a-vis their oaths of office and the edicts of this Court regarding Batson. To accept the conclusions of Justice Graves’s dissent, one must surmise that District Attorney Lawrence and Assistant District Attorney Jones are not only liars, but that they also acted in an intentional, premeditated, and racially discriminatory manner. Furthermore, one would also have to surmise that Circuit Judge Harkey either lacks the legal acumen to recognize a prohibited exercise of challenges occurring before his own eyes and ears; or, worse yet, was complicit in allowing the prohibited exercise. I decline to accept either based on a concoction of suspicion, guesswork, and speculation (with a dash of conjecture) all derived from an affidavit asserting what an investigator knew, but revealing nothing as to what the prosecuting attorneys knew. Such a conclusion requires stacking inference upon inference, thus miserably failing to satisfy the requisite legal standard that there must be a “definite and firm conviction that a mistake has been committed.” Easley, 532 U.S. at 242, 121 S.Ct. 1452 (quoting United States Gypsum Co., 333 U.S. at 395, 68 S.Ct. 525).

CONCLUSION

¶ 10. Based upon the aforementioned analysis, this Court affirms the Court of Appeals’ affirmance of Booker’s conviction and sentence in the Circuit Court of Jackson County.

¶11. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT COURT OF JACKSON COUNTY ARE AFFIRMED. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., EASLEY, CARLSON AND LAMAR, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J. AND IN PART BY WALLER, P.J. AND DICKINSON, J. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER AND DIAZ, P.JJ. AND IN PART BY GRAVES, J.

GRAVES, Justice,

Dissenting.

¶ 12. The majority of this Court chooses to ignore the blatant misrepresentations by a prosecutor in order to wrongfully remove an African-American from the jury. Because I would find that the trial court erred in failing to grant Anthony Terrell Booker’s motion for new trial, I respectfully dissent.

¶ 13. On December 30, 2002, Booker, Shawn Davis, Mary Scarbough, and Desmond Shields were involved in the beating death of Dorian Johnson. Booker, Davis, Scarbough, and Shields were arrested on January 6, 2003, and charged with Johnson’s death. After a severance, Booker was tried on May 17, 2004. During voir dire, prosecutors moved to strike juror Chauncey Thompson, Juror 14, an African-American, on the basis of prior convictions. The trial court denied Booker’s request for time to investigate the alleged prior convictions. Booker was convicted of capital murder on May 20, 2004, and sentenced to life imprisonment without the possibility of parole.

¶ 14. Thereafter, Booker filed a motion for new trial. At the hearing on the motion for new trial, Booker introduced an affidavit from the Pascagoula City Court Clerk that Thompson had no prior convictions and that she had provided that information to an investigator from the district attorney’s office prior to the trial. Those facts were uncontroverted. The trial court denied Booker’s motion for a new trial and Booker appealed. This Court assigned the case to the Court of Appeals, which affirmed Booker’s conviction. Booker filed a petition for writ of certiorari, asserting that prosecutors knowingly gave false information to the trial court as a purportedly race-neutral justification for striking Chauncey Thompson, Juror 14, an African-American, from Booker’s venire in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 15. Under Batson, a defendant must establish a prima facie case of purposeful discrimination as follows:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Batson, 476 U.S. at 96, 106 S.Ct. 1712 (citations omitted). Once the defendant has established a prima facie case of discrimination, the burden shifts to the State to provide a race-neutral reason for each strike. Id. at 97,106 S.Ct. 1712. The trial court then makes a determination of whether the defendant has established purposeful discrimination. Id. at 98, 106 S.Ct. 1712.

¶ 16. This Court has held that in reviewing a Batson claim, we will not overrule a circuit court unless the record indicates the decision was clearly erroneous or contrary to the overwhelming weight of the evidence. Flowers v. State, 947 So.2d 910, 917 (Miss.2007).

This Court has recognized five indicia of pretext that are relevant when analyzing the race-neutral reasons offered by the proponent of a peremptory strike, specifically:

(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2) the failure to voir dire as to the characteristic cited; ... (8) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.

Id.

¶ 17. As this Court has found:

Because racially-motivated jury selection is still prevalent twenty years after Batson was handed down and because this case evinces an effort by the State to exclude African-Americans from jury service, we agree that it is “necessary to reconsider Batson’s test and the peremptory challenge system as a whole.” Miller-El, 125 S.Ct. at 2344 (Breyer, J., concurring). While the Batson test was developed to eradicate racially discriminatory practices in selecting a jury, prosecuting and defending attorneys alike have manipulated Batson to a point that in many instances the voir dire process has devolved into “an exercise in finding race neutral reasons to justify racially motivated strikes.” Howell [v. State], 860 So.2d at 766 (Graves, J., dissenting). When Batson was handed down, Justice Marshall predicted that “[mjerely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.” Batson, 476 U.S. at 106, 106 S.Ct. 1712 (Marshall, J., concurring). Unfortunately, as this case has shown, Justice Marshall was correct in predicting that this problem would not subside. His solution to this problem was to ban peremptory challenges outright, a position later advocated by Mississippi Supreme Court Justice Michael Sullivan. See Batson, 476 U.S. at 108, 106 S.Ct. 1712 (Marshall, J., concurring) (stating that “only by banning peremptories entirely can such discrimination be ended.”); Thorson v. State, 653 So.2d 876, 896 (Miss. 1994) (Sullivan, J., concurring) (stating that “the proper remedy for this type of situation is the complete elimination of peremptory challenges in the trial courts of Mississippi.”).

Flowers v. State, 947 So.2d 910, 937 (Miss. 2007).

¶ 18. I cannot ignore or condone a prosecutor’s blatant misrepresentation of facts to the trial court. The prosecutor in this case repeatedly represented to the court that he verified that juror Chauncey Thompson had multiple convictions. Those representations were false. He simply could not have “verified” a non-fact. There is an unrebutted affidavit from the municipal court clerk which clearly indicates that the prosecutor’s office was informed before the trial that juror Thompson had been charged but that those charges were dismissed because they were against the wrong person. Such a blatant, deliberate and repetitive misrepresentation by a prosecutor should not be condoned.

¶ 19. In offering a purportedly race-neutral reason for striking juror Thompson, the following exchange occurred:

BY MR. JONES [Prosecutor]: Judge, the first Batson challenge arises with Juror Number 14, Chauncey Thompson. The State’s race-neutral reason, Judge, is that, in checking the name of our jurors, we found that he has had a marijuana conviction, a driver’s license violation, an insurance violation, a seat belt violation in Pascagoula. He was convicted on 2/5/03. And on those bases, especially the marijuana conviction, Judge, we didn’t want a convicted marijuana holder on our jury.
BY MR. SHADDOCK (Counsel for Booker): Are you talking about a misdemeanor?
BY MR. LAWRENCE (Prosecutor): Misdemeanor.
BY THE COURT: A convicted marijuana holder?
BY MR. JONES: Or a user or ...
BY THE COURT: And that information was verified through what source?
BY MR. JONES: Through the Pas-cagoula City Court.
BY MR. SHADDOCK: We’d like a copy of it. Judge, he’s a 29-year-old black male that works at Sears, Roebuck and Company and has a college education, and they want to kick him off. He was born and raised in this county.
BY THE COURT: Well I find that the existence of that prior criminal history is sufficiently race-neutral to justify a peremptory challenge, a peremptory strike.
BY MR. SHADDOCK: Judge, I’d like to see it.
BY THE COURT: If that information is available, Mr. Jones?
BY MR. JONES: Yes, sir. It’s a matter of record with the Pascagoula Municipal Court. His conviction date is February the 5th, 2003. You can go get it.
BY MR. SHADDOCK: Well, I mean, I don’t have access to the Pascagoula Police Department.
BY MR. LAWRENCE: We just called, Your Honor. That’s how we got it, over the telephone.
BY MR. SHADDOCK: Well, they won’t give me — you know, if we do have some privacies left in this country, they won’t give it to me. I don’t think. I’ll go try.
BY MR. JONES: And I assure you we’re not making that up, Judge.
BY THE COURT: In regard to — I’ve made my rulings....

(Emphasis added). Both the district attorney and the assistant district attorney participated in this colloquy with the trial court. There were at least five separate declarations by the prosecutors that the information was accurate. Those declarations are: 1) “[W]e found that he has had a marijuana conviction....”; 2) “Through the Pascagoula City Court” in response to the trial court’s question of how the information was verified; 3) “It’s a matter of record with the Pascagoula Municipal Court. His conviction date is February the 5th, 2003. You can go get it.”; 4) “We just called, Your Honor. That’s how we got it, over the telephone.”; and 5) “And I assure you we’re not making that up, Judge.” The prosecution had numerous opportunities to provide accurate information and failed to do so.

¶ 20. Later, Shaddock asked the following: “I would like permission to have about 30 minutes to do a little investigating, if I might, on these Batson challenges.” However, the State objected to this request, saying an investigation could be done after the trial was finished. The trial court denied Shaddock’s request and moved foiward with the trial. After the trial, Shaddock raised the issue in his motion for new trial. In support of his motion, Shaddock offered an affidavit, of the Pascagoula City Court Clerk Rhonda Diehl stating:

That on the morning of May 17, 2004, Investigator Scott Mclrath [sic], of the District Attorney’s Office, Pascagoula, Mississippi, called your Affiant and made inquiry as to any criminal record that the potential juror, Chauncey D. Thompson, may have had with said Police Department; that your Affiant ran the name given to her by the Investigator and advised that the potential juror had been charged with four (4) misdemeanor crimes, they being Simple Possession of Marijuana, No Driver’s License, No Liability Insurance and a Seat Belt Violation; that your Affiant further advised said Investigator that all of these charges had been dismissed by the City for the reason that said potential juror was not the person who committed said four alleged misdemeanor crimes. Attached hereto is a copy of a print-out that was used by said Affiant when she furnished said Investigator with the information.

This affidavit is unrebutted.

¶ 21. As acknowledged by the majority, the “race-neutral reason proffered by the prosecutor must be a false cover for an intentional, racially discriminatory purpose.” Surely, these facts fit that description. In the instant case, we have a prosecutor falsely telling the trial court that he has confirmed that an African-American juror has multiple convictions, when in fact he has confirmed no such thing and there are and never were any convictions. Moreover, during the motion for new trial, the prosecutor had ample opportunity to provide an explanation for the false statements made about juror Thompson, but merely said:

Your Honor, Mr. Mcllrath, the investigator in my office, has been in law enforcement for twenty-something years, looks at every venire list that this office gets, and he goes in there and sees if there’s names he recognizes. He’s been in the business forever. This was one of them. He called up there ... And the affidavit confirms that the information was given to him that this man had been charged with four offenses.
Now, whether those offenses had been dismissed, we didn’t have at that time. He got the first information.... The information the State got from Mr. Mcllrath’s calling the police department was read into the record, so Your Honor will be able to clearly see exactly what the State knew at that time. But it confirms that this man was charged with a crime. Four crimes.
And let’s take it a step further. Mr. Shaddock says — and I don’t know if this is right, because I was just given the affidavit — that he was charged and dismissed, because it wasn’t the right guy....

(Emphasis added).

¶ 22. No explanation whatsoever was given by the prosecutor in response to the city clerk’s affidavit. Any so-called explanation for the misrepresentations offered by the majority are based on speculation and conjecture. Further, the State even contradicted itself in the explanation as to the information provided by the investigator. During voir dire, the prosecutor repeatedly referred to Thompson’s convictions and told the trial court that he had confirmed those convictions and went so far as to refer to Thompson as a “convicted marijuana holder” and to provide the date of conviction. However, during the hearing on the motion for new trial, the prosecutor admitted that he was never told of any convictions, but rather said he was merely told of some charges. Also, this is further rebutted by the affidavit from the city clerk set out above that she told the investigator the charges had been dismissed.

¶ 23. The majority opinion refers to the evidence contained in the record as a “concoction.” Assuming arguendo that it is a “concoction,” then it is a “concoction” that is undiluted by any rebuttal from either the district attorney or the assistant district attorney. There was a full-blown hearing before the trial court where the challenge against Juror Thompson was discussed and the prosecution confirmed that what was conveyed to the trial court at trial was not the information conveyed to either the investigator or conveyed to the prosecutors. Prosecutors told the trial court during voir dire that Thompson had several convictions, but later explained they were merely told he had some charges, charges that were brought against the wrong person and later dismissed. There is not one scintilla of evidence in the record to support any finding that the prosecutors did not know the truth regarding Thompson.

¶ 24. The city clerk’s affidavit is unre-butted, the prosecutors’ misrepresentations are unexplained and the majority decision is unfair. For these reasons, I would find that the trial court erred in failing to grant Booker’s Motion for New Trial. Further, I would reverse Booker’s conviction and sentence and remand this case to the trial court for a new trial.

DIAZ, P.J., JOINS THIS OPINION. WALLER, P.J., AND DICKINSON, J., JOIN THIS OPINION IN PART.

DICKINSON, Justice,

Dissenting.

¶ 25. There is no dispute in this case that the trial court found the defense sustained its burden under Batson v. Kentucky of making a prima facie showing that the State struck an African-American juror, Chauncey Thompson, because of his race. At that point, the burden shifted to the State to rebut the prima facie showing of discrimination by offering a race-neutral reason for striking Thompson. Because the State failed to establish a race-neutral reason, I cannot join the majority, and I respectfully dissent.

I.

¶ 26. Two prosecutors were present on the morning of voir dire. Prosecutor Jones stated that the race-neutral reason for striking Thompson was that he had a “marijuana conviction.” The trial judge asked Prosecutor Jones how the information had been verified, and Jones responded, “through the Pascagoula City Court.” Defense counsel questioned the truth of the alleged race-neutral reason, and Prosecutor Lawrence stated, “We just called, your Honor. That’s how we got it, over the telephone.” Still dissatisfied with the State’s assertion that Thompson had been convicted of a crime, defense counsel requested “thirty minutes to do a little investigating ... on these Batson challenges.” Jones objected to the delay, stating that “any investigation can be done after we finish the trial.” The trial judge denied the request, and allowed the State to exclude Thompson as a juror.

¶ 27. After his client was convicted, defense counsel took Jones up on his invitation to investigate the matter after trial. In doing so, he discovered not only that Thompson had not been convicted of a crime, but also that the city court clerk had so informed the State’s investigator on the morning of trial. The city court clerk signed an affidavit to that effect. Armed with this information (which many would justifiably view as a smoking gun), Shad-dock filed a post-trial motion for a new trial.

¶28. At the post-trial hearing, Shad-dock provided the following argument:

The next affidavit ... is by the City Court Clerk, and it deals with a gentleman named Chauncey D. Thompson, who was Number 14 on the jury. If you recall, the State said their race-neutral reason was, this guy had been convicted, or charged with possession of marijuana in the City Court. And that wasn’t quite the truth. And this affidavit so bears that out. It says that on the morning of the trial, May 17, 2004, Scott Mcllrath calls the City Court Clerk. The only person she [sic] asked about is this Black male. She advises him he had been charged with four misdemeanors and they had all been dismissed, they had the wrong person.

¶ 29. Thus, we have the City Court Clerk’s sworn affidavit that the prosecutor’s representation to the trial court on the morning of voir dire was not true. One would think the trial court would have demanded an explanation or, at the very least, the prosecutor would have demanded an opportunity to clear the record and explain what happened. In fact, what happened was nothing. The prosecutor’s response to the discrepancy was:

He [the investigator] called up there ... [ellipsis in original] And the affidavit confirms that the information was given to him that this man had been charged with four offenses. Now, whether those offenses had been dismissed, we didn’t have at that time. He got the first information. So, Mr. Shaddock is providing this other information. The information the State got from Mr. Mcll-rath’s calling the police department was read into the record, so Your Honor will be able to clearly see exactly what the State knew at that time ...

This response provides no information. But even if the trial court took the prosecutor’s explanation to mean that the city court clerk was not telling the truth in her affidavit, the court’s later ruling is not consistent with such a finding. In upholding the State’s peremptory strike of Thompson, the trial court stated that “the substance of the reasons offered by the State of Mississippi at the time the challenge was made ... the substance of those rulings I find to be substantiated by the affidavits and exhibits that have been introduced here.”

¶30. In other words, the trial court seemed to be of the opinion that the city court clerk’s affidavit substantiated what the prosecutors had said on the morning of voir dire. Nothing could be further from the truth. The affidavit directly, unequivocally, and unquestionably contradicted the prosecutors’ representations to the trial court.

¶ 31. It is not my purpose to determine whether the prosecutors’ misrepresentations were honest mistakes on the part of the city court clerk, the investigator, or one of the prosecutors. My guess is there was a miscommunication. Who knows? But my guesswork cannot substitute for my obligation to apply the law.

II.

¶ 32. The theory and logic supporting the United States Supreme Court’s ruling in Batson is fairly simple. But applying Batson and its progeny to real-life cases has perplexed trial and appellate judges for two decades, and continues to do so today. The black-letter law of Batson was recently restated as follows:

Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.”

Snyder v. Louisiana, — U.S. -, -, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175, 180-181 (2008) (citations omitted).

¶ 33. Although volumes of litigation and appellate discussion have addressed what is necessary to satisfy the first step, that is, “a prima facie showing that a peremptory challenge has been exercised on the basis of race,” we do not need to go there today because the trial judge found the defendant had established a prima facie case, and the State does not challenge that finding.

¶ 34. Given that the defendant made a prima facie showing of racial discrimination, the prosecutor was required to satisfy the second step, that is, “the prosecution must offer a race-neutral basis for striking” the juror. This the prosecutor did not do. Thus, because the State never satisfied Batson’s second step, the inquiry should end. Instead, the majority goes on to the third step and grants the trial judge the discretion to conclude that, even though the State had no legitimate race-neutral reason for striking Thompson, the prosecutor had no intent to discriminate. Because I do not believe Batson provides the trial judge, or us, that discretion, I respectfully dissent.

WALLER AND DIAZ, P.JJ., JOIN THIS OPINION. GRAVES, J., JOINS THIS OPINION IN PART.

      . The precise question presented by Booker was "[d]id the trial court and the Court of Appeals err in failing to rule that the district attorney violated Batson by using false information and giving pretextual justifications to support the strikes of minority jurors Chauncey Thompson and Alden Stallworth.” Under Mississippi Rule of Appellate Procedure 17(h), ”[l]he Supreme Court may limit the question on review.” Miss. R.App. P. 17(h). Finding Booker's argument regarding juror Alden Stallworth without merit as discussed by the Court of Appeals, see Booker, 5 So.3d at 421, 2008 WL 224070 at *13, 2008 Miss.App. LEXIS 77 at *16-17, no further discussion is warranted. We limit our analysis to the prosecution’s peremptory strike of juror Chauncey Thompson. See paragraph 2 infra.

      . As the United States Supreme Court has stated, under the "clearly erroneous” standard, it "will not reverse a lower court's finding of fact simply because we would have decided the case differently.” Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (internal quotation marks omitted). Instead, the reviewing court must ask "whether, ‘on the entire evidence,' it is ‘left with the definite and firm conviction that [a] mistake has been committed.' ” Id. (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)) (emphasis added).

      . "Discriminatory" is defined as "[d]isplaying or marked by prejudice: biased.” Webster's II New College Dictionary 325 (3d ed.2001).

      . "Intent" is defined as "[t]hat which is intended: purpose.” Webster’s II New College Dictionary at 576.

      . "Purposeful” is defined as "[h]aving a purpose: intentional." Webster’s II New College Dictionary at 900. Additionally, "purpose” is defined as "1. The object toward which one strives or for which something exists: goal. 2. A desired or intended result or effect.” Id.

        . "Discrimination” is defined as "[a] prejudiced act.” Webster’s II New College Dictionary at 325.

      . "Pretext” is defined as the "[o]stensible reason or motive assigned or assumed as a color or cover for the real reason or motive; false appearance, pretense.” Black's Law Dictionary 1351 (4th ed.1968) (emphasis added). See also Webster’s II New College Dictionary at 876 (defining “pretext” as ”[o]stensible purpose: excuse.”). By contrast, a "mistake” is defined as “1. An error: fault. 2. A misconception: misunderstanding.” Id. at 702.

      .Thereby distinguishing this case from Snyder, wherein the United States Supreme Court found that “[leather than making a specific finding on the record concerning Mr. Brooks' demeanor, the trial judge simply allowed the challenge without explanation.” Snyder, 128 S.Ct. at 1209. Nothing in the record renders Circuit Judge Harkey's judgment implausible.

      . "Deliberate” is defined as "la. Thought out or planned in advance: Premeditated, lb. Said or done intentionally.” Webster's II New College Dictionary at 298.

      . Or "lies,” as referred to by the trial judge. See paragraph 6 supra.

      . Without reference to any specific conclusions, the majority opinion asserts that "[t]o accept the conclusions of [this] dissent, one must surmise that District Attorney Lawrence and Assistant District Attorney Jones are not only liars, but that they also acted in an intentional, premeditated, and racially discriminatory manner." However, this opinion never refers to either prosecutor as a liar, nor does it comment on whether their actions were premeditated. The majority further attempts to personalize this matter by specifically and repeatedly identifying the participants. However, the identity of the participants is irrelevant. It is their conduct which compels the result in this case.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


source: Caselaw Access Project

author: GRAVES, Justice,

license: Public Domain

text:
    Raymond L. WONG v. THE MISSISSIPPI BAR.
    No. 2008-BR-00014-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2008.
    Raymond L. Wong, pro se.
    Adam B. Kilgore, Jackson, attorney for appellee.
   GRAVES, Justice,

for the Court.

¶ 1. This case is before the Court upon the petition of Raymond L. Wong, who seeks reinstatement to the Mississippi Bar following a six-month suspension. Wong was suspended for failure to respond to his clients, failure to pursue his clients’ criminal appeals, failure to respond to informal complaints from the Mississippi Bar (the “Bar”), and non-cooperation with the Bar complaint process.

FACTS

¶2. Prior to his suspension, Wong had been a solo practitioner in multiple practice areas since 1983 and a public defender since 1984. On June 28, 2007, Wong was suspended by the complaint tribunal for a period of six months for violating Rules of Professional Conduct 1.2, 1.3, 1.4, 8.1(b), and 8.4(a), (d). M.R.P.C. 1.2, 1.3, 1.4, 8.1(b), and 8.4(a), (d). These violations stem from four of Wong’s cases.

¶ 3. In the first case, Wong’s client was Darryl Hawkins, whom Wong was appointed by the court to represent on a criminal matter. Hawkins had three prior convictions, including one for a violent crime. Wong represented him for a burglary charge. The prosecution offered Hawkins a plea bargain wherein Hawkins would be sentenced to seven years in prison. Hawkins refused the plea offer and proceeded to trial. At trial, Hawkins’ co-defendant testified against him, and the jury convicted Hawkins. He was then sentenced to life without parole. After reviewing the trial transcript, Wong could not find a viable claim for appeal and did not file an • appellate brief on Hawkins’ behalf. Wong claims that he informed either Hawkins or Hawkins’ mother that he was unable to find any issues on which to base an appeal. When asked why he did not respond to Hawkins’ attempts to contact him, Wong stated that Hawkins had called him collect and that Wong did not accept collect calls. Hawkins’ appeal was dismissed.

¶ 4. When asked why he did not respond to the Bar complaint, Wong said that he received it but he “just put it in the corner,” and he did not respond “[bjecause I knew I screwed up.” Wong said that he did not file a brief as required by the tribunal because “I knew I was going to get punished for what I did, so I’d just take the punishment.” The complaint tribunal suspended Wong for six months for his violations in this case.

¶ 5. In the second case, Wong represented Timothy Scribner, who was also charged with burglary. Wong stated that he only appeared in court on Scribner’s behalf one time-at the bail hearing. He stated that Scribner was also charged with another felony in Cleveland, Mississippi, and that Scribner told Wong that he could hire his own attorney. Wong explained that he did not respond to Scribner’s attempts to contact him because he was under the impression that Scribner had hired his own attorney.

¶ 6. When asked why he did not respond to the Bar complaint, Wong said that he was “in the middle of court term. I pushed it aside. When we’re in court term for six weeks, we’re on a rocket docket. We have to be instantaneous [sic] ready with all our cases and all our witnesses .... We have no continuances.” Wong said that he failed to respond to the formal complaint because by the time he was prepared to respond, the deadline had expired. He admitted that his failure to respond to the formal complaints in both the Scribner and Hawkins cases was his fault. Wong was suspended by the tribunal for six months for the Scribner case, to run concurrently with the Hawkins suspension.

¶ 7. In the third case, Wong represented Clarence Bennett, who was on lifetime parole because of a murder conviction. While on parole, Bennett was accused of shooting at a neighbor during a dispute. Police officers subsequently found a firearm in Bennett’s residence. As a result, Bennett was charged with possession of a firearm by a convicted felon and aggravated assault, and his parole was revoked.

¶ 8. Bennett wished to proceed to trial on the charges, and he was convicted on both charges. As with Hawkins, Bennett wished to pursue an appeal, but Wong was unable to find a viable issue to raise on appeal. Wong could not remember at the deposition whether or not he informed Bennett that he was not going to file an appellate brief. Bennett’s appeal was dismissed.

¶ 9. Wong had no explanation as to why he did not respond to the Bar complaint for the Bennett case. He said he was aware that he was required to respond, but he did not. However, Wong did respond to the formal Bar complaint, which also involved Wong’s client Jimmy Giles. Wong was suspended by the tribunal for thirty days for the Bennett case, to run concurrently with the six-month suspension.

¶ 10. In the Giles case, Wong represented Giles in a multiple-defendant capital murder case. The tribunal found no violations related to the attorney-client relationship in the Giles case. However, the tribunal found that Wong had not responded to the informal Bar complaint, and Wong could not give an explanation for his failure to respond. Wong was suspended by the tribunal for thirty days for the Giles case, also to run concurrently with the six-month suspension.

¶ 11. Following the decision of the complaint tribunal, Wong notified his clients, adverse parties, and courts and agencies of his suspension in writing pursuant to Mississippi Rule of Discipline 11(c). Miss. R. Disc. 11(c). During his suspension, Wong has been supporting himself primarily with his savings, although he acted as a notary for two real estate closings and earned modest fees for doing so. After his suspension, but during the time in which he sought reinstatement, Wong conducted another closing as a notary. Wong stated that he informed the parties involved in the closings that he was not acting as an attorney. Wong stated that he had not engaged in any unauthorized practice of law or held himself out to be a lawyer in any way. He spent most of his time during his suspension organizing his office papers.

¶ 12. Following his six-month suspension, Wong filed a Petition for Reinstatement on January 2, 2008, and an Amended Petition for Reinstatement on January 22, 2008. The Bar deposed Wong and submitted an answer to Wong’s petition. Wong also submitted certificates of completion •for his continuing legal education hours.

ANALYSIS

¶ 13. It is well-established that this Court has “exclusive and inherent jurisdiction of matters pertaining to attorney discipline, reinstatement, and appointment of receivers for suspended and disbarred attorneys.” In re Kelly, 987 So.2d 925, 928 (Miss.2008) (quoting In re Morrison, 819 So.2d 1181, 1183 (Miss.2001)). This Court conducts a de novo review of the evidence in disciplinary matters, acting as triers of fact on a case-by-case basis. In re Kelly, 987 So.2d at 928 (citing In re Morrison, 819 So.2d at 1183). The main inquiry in determining whether or not to grant reinstatement is whether the petitioner has rehabilitated himself. In re Kelly, 987 So.2d at 929 (citing In re Steele, 722 So.2d 662, 664 (Miss.1998)). The petitioner bears the burden of proving by clear and convincing evidence that reinstatement is warranted based on tbe petitioner’s rehabilitation and requisite moral character. In re Kelly, 987 So.2d at 929 (quoting Burgin v. Miss. State Bar, 453 So.2d 689, 691 (Miss.1984)).

¶ 14. Mississippi Rule of Discipline 12 requires that “[r]einstatement to the practice of law following any other discipline shall be only upon proof of compliance with any such sanctions.” Miss. R. Disc. 12. This Court in In re Benson, 890 So.2d 888, 890 (Miss.2004) set out five jurisdictional requirements for Rule 12 reinstatements:

The petitioner must: (1) state the cause or causes for suspension or disbarment; (2) give the name and current address of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct; (3) make full amends and restitution, (4) show that he has the necessary moral character for the practice of law; and (5) demonstrate the requisite legal education to be reinstated to the privilege of practicing law.

Id. at 890 (citation omitted). This Court also stated that the recommendation of the Bar should also be taken into account. In re Kelly, 987 So.2d at 929 (citing In re Holleman, 826 So.2d 1243, 1248 (Miss. 2002)).

1. Cause or Causes for Suspension

¶ 15. In his Petition for Reinstatement of January 22, 2008, Wong set out the bases on which he was found to have violated the Rules of Professional Conduct. During his deposition, he demonstrated his knowledge of the underlying facts of the cases and informed the Bar of the circumstances under which he violated the Rules of Professional Conduct.

2. Names and Current Addresses of All Persons, Parties, Firms, or Legal Entities Who Suffered Pecuniary Loss Due to the Improper Conduct

¶ 16. Wong stated in his Petition for Reinstatement and at the deposition by the Mississippi Bar that no individuals suffered a pecuniary loss as a result of his misconduct and suspension. However, he acknowledged that he caused some of his clients harm because they were forced to find other attorneys to represent them.

3. Making of Full Amends and Restitution

¶ 17. Wong stated that, in addition to notifying his clients of his suspension in writing, he returned all case files, papers, money and unused attorney’s fees, and other property belonging to his clients within fourteen days of the complaint tribunal’s decision. He further notified all courts, agencies, and adverse parties in his cases of his suspension. Wong has paid $1,080.54 in costs and expenses associated with the investigation of his violations.

4. Requisite Moral Character

¶ 18. Wong testified that he has been a member of the Exchange Club, a service organization that advocates against child abuse. Three letters of recommendation were submitted with the Petition for Reinstatement. One of the letters was written by a judge, before whom Wong regularly appeared. The other two letters were written by lawyers. All three letters that were submitted urged that Wong be reinstated.

¶ 19. The letter from the judge stated that he “anxiously awaits Mr. Wong’s return to the practice of law because he was one of three court-appointed attorneys who handled felony criminal cases in Bolivar County. Mr. Wong performed excellently until the time of his infractions which led to his suspension.” One of the letters from the attorneys was unsolicited by Wong. This lawyer stated that Wong “served diligently” on the Mississippi Public Defender’s Association and had always been a competent lawyer. The third letter described Wong as a “valuable and tireless member of our Bolivar County Bar Association” and said that Wong is “always willing to tackle the more difficult criminal cases that many others chose not to handle.” This lawyer also stated that Wong “worked many long hours striving to improve the quality of our Bolivar County Law Library.” At the deposition, Wong appeared to be under the impression that other individuals would submit letters on his behalf by sending letters directly to the Bar, although none of these letters are included in the evidence before this Court.

¶ 20. Wong stated that he has spent much of his time during his suspension taking care of his elderly parents. His ninety-two-year-old father suffers from dementia, so Wong assisted his eighty-two-year-old mother in taking care of his father. Wong stated that he does not have any mental health problems. Wong has not been charged with any crimes during his suspension.

5. Requisite Legal Education

¶ 21. Wong was not required by the complaint tribunal to take the Multi-State Professional Responsibility Exam. He stated in his Petition for Reinstatement and at his deposition that for the August 2007 period, he had completed more than twelve hours of continuing legal education. Wong submitted certificates of completion for 1) “So Little Time, So Much -Paper: Time Management,” for which he earned six hours toward his continuing legal education requirements; 2) “The Essentials of Law Office Management: Business Skills for Attorneys,” for which he earned seven- and-a-half hours toward his continuing legal education requirements; and 3) the Mississippi Public Defenders Spring 2008 Conference, for which he earned seven hours toward his continuing legal education requirements. The first two courses concerned law office management. Wong stated that he also attended the “2008 Summary of Recent Mississippi Law” on March 21, 2008, for which he earned six hours toward his continuing legal education requirements, but stated that documentation of the credits would be sent to the Mississippi Commission on Continuing Legal Education by the presenters.

¶ 22. Wong stated at his deposition that he stays current on the law by thinking of ways to attack Mississippi Rule of Evidence 803(25), the child hearsay rale, in future cases. In addition, he has been studying Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), as well as keeping up with new United States Supreme Court and Mississippi Supreme Court cases through two briefing services.

Recommendation of Bar

¶ 23. After conducting a deposition of Wong and an investigation into the merits of his Petition for Reinstatement, the Bar recommends that Wong be reinstated to the practice of law, on the condition that he certify to the Court that he completed twelve hours of continuing legal education hours in law office management, twelve hours of continuing legal education hours in professional responsibility, and twelve hours of continuing legal education required by the Bar to maintain his law license. The Bar was, however, concerned that Wong did not provide satisfactory explanations of his failure to communicate with clients, to cooperate with the Bar disciplinary process, and to file appellate briefs for his clients. The Bar was also concerned that Wong was unable to demonstrate more peer or community support for his rehabilitation, character, and fitness to practice law.

¶ 24. It is the opinion of this Court that Wong has learned his lesson and has concrete plans to comply with Bar complaints and to communicate better with his clients in the future. If reinstated, Wong plans to return to being a court-appointed criminal defense attorney and return to his solo practice. He stated at the deposition and in his Petition for Reinstatement that he will be sure to answer all Bar complaints that he may receive in the future and refer his criminal appeals to the Office of Indigent Appeals, which had not been accepting cases at the time of Wong’s violations. He added that in criminal appeals in which he can find no arguable issues, he will file a Lindsey brief with this Court. Lindsey v. State, 939 So.2d 743 (Miss. 2005). He also said that since Hawkins’ appeal was reassigned to the Office of Indigent Appeals, he would stay informed and see what issues are presented to the Court on appeal. He explained that, in the future, if he is assigned to represent someone at a court appearance, he will ensure that he continues to represent them as long as they sign an affidavit of indigency. He also said that he would be more organized in terms of keeping track of all his clients. He emphasized that he learned his lesson and that he completed the complaint tribunal’s requirements of him. He stated that he will respond to any future Bar complaints to avoid being suspended again. Wong said that his suspension has had a great personal effect on him because he is accustomed to being very active in his work, but his suspension has limited him to merely reading and organizing his papers at his office.

¶25. After a de novo review of the papers before this Court, we conclude that Wong should be reinstated. Although he may not have given the impression at his deposition that he has taken his suspension and the underlying reasons for his suspension seriously, he has shown that he put significant thought into improving his conduct in the future. He has also completed the requirements set out by Rule of Discipline 12. Furthermore, the Bar ultimately recommends that he be reinstated. The letters of recommendation submitted strongly urge Wong’s reinstatement. Both the letters of recommendation and the deposition transcript demonstrate that Wong is a competent and knowledgeable attorney and public defender.

¶ 26. This Court finds that Wong has proven by clear and convincing evidence that he has rehabilitated himself and is worthy of reinstatement. However, we hope that he is indeed able to communicate better with his clients in the future. This Court understands that although public defenders are often overworked because of their high caseloads, and although they are undercompensated for their work, the law still demands that attorneys keep their clients, indigent or not, informed of the developments in their cases, especially ones as important as the status of their appeals.

CONCLUSION

¶ 27. This Court holds that Wong’s Petition for Reinstatement should be granted on the condition that he certify to this Court and to the Mississippi Bar within thirty days of the hand-down of this opinion that he has completed twelve hours of continuing legal education in professional responsibility.

¶ 28. PETITION OF RAYMOND L. WONG FOR REINSTATEMENT TO THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI IS CONDITIONALLY GRANTED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.

      . It appears that Wong has certified that he completed the twelve hours of continuing legal education to maintain his law license and the twelve hours of continuing legal education in law office management, but has not certified that he completed twelve hours of continuing legal education in professional responsibility.


author: DICKINSON, Justice,

text:
    In the Matter of the ENLARGEMENT AND EXTENSION OF the Corporate Limits and BOUNDARIES OF the CITY OF SOUTHAVEN, Mississippi. City of Horn Lake, Mississippi, City of Olive Branch, Mississippi, City of Hernando, Mississippi, Town of Walls, Mississippi, Summerwood, Whitten Place Homeowners Associations and other individual, Objectors v. City of Southaven, Mississippi.
    No. 2007-AN-00826-SCT.
    Supreme Court of Mississippi.
    Jan. 15, 2009.
    Rehearing Denied April 9, 2009.

      James H. Herring, Canton, attorney for appellants.
    Jerry L. Mills, Ridgeland, Mark Sorrell, attorneys for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. The Chancery Court of DeSoto County found that the City of Southaven’s proposed annexation was reasonable and granted the annexation. We affirm.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. The City of Southaven (“the City”) sought to annex three separate parcels; specifically, property to the northeast (the “Northeast Parcel”), to the south and to the northwest of the city. The Northeast Parcel is bordered on three sides by the City of Southaven and, on the fourth, by the City of Olive Branch.

¶ 3. On March 5, 2004, the City filed its petition to annex in the Chancery Court of DeSoto County. On October 27, 2005, Summerwood Homeowners’ Association, Whitten Place Homeowners’ Association, and individual objectors (collectively, “the Objectors”) filed a motion to dismiss challenging the accuracy of the description of the proposed annexation area (the “PAA”). The chancery court ruled that the description of the PAA was defective, but denied the other relief sought in the motion. On February 10, 2006, the City filed an amended petition in response. Thereafter, a bench trial was scheduled for September 18, 2006.

¶ 4. In its final judgment, the chancellor found that the proposed annexation was reasonable in its entirety and granted the annexation. The Objectors appeal only as to the annexation of the Northeast Parcel.

ANALYSIS

¶ 5. In annexation matters, this Court employs a limited standard of review and will reverse a chancellor’s decision only if it is manifestly wrong and not supported by substantial and credible evidence. Town of Marion v. City of Meridian (In re Enlarging, Extending & Defining the Corporate Limits & Boundaries of the City of Meridian), 992 So.2d 1113, 1116 (Miss.2008) (citing In re Extension of Boundaries of City of Hattiesburg, 840 So.2d 69, 81 (Miss.2003)).

¶ 6. Summarily, the appellate review is limited to the question of whether the annexation is reasonable, under the totality of the circumstances. See Lamar County v. City of Hattiesburg (In re Extension of the Boundaries of Hattiesburg), 840 So.2d 69, 73 (Miss.2003). To determine the reasonableness of the annexation, this Court has laid out twelve indicia of reasonableness which are not separate, independent tests, but rather need to be considered under the totality of circumstances. Mun. Boundaries v. City of Madison, 650 So.2d 490, 494-95 (Miss. 1995). These indicia of reasonableness are:

(1) the municipality’s need to expand, (2) whether the area sought to be annexed is reasonably within a path of growth of the city, (3) potential health hazards from sewage and waste disposal in the annexed areas, (4) the municipality’s financial ability to make the improvements and furnish municipal services promised, (5) need for zoning and overall planning in the area, (6) need for municipal services in the area sought to be annexed, (7) whether there are natural barriers between the city and the proposed annexation area, (8) past performance and time element involved in the city’s provision of services to its present residents, (9) economic or other impact of the annexation upon those who live in or own property in the proposed annexation area, (10) impact of the annexation upon the voting strength of protected minority groups, (11) whether the property owners and other inhabitants of the areas sought to be annexed have in the past, and in the foreseeable future unless annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy economic and social benefits of the municipality without paying their fair share of taxes, and (12) any other factors that may suggest reasonableness.

Madison, 650 So.2d at 494.

(1) Need to expand

¶ 7. When determining a city’s need for expansion, this Court has considered many factors, including:

(1) spillover development into the proposed annexation area; (2) the City’s internal growth; (3) the City’s population growth; (4) the City’s need for development land; (5) the need for planning in the annexation area; (6) increased traffic counts; (7) the need to maintain and expand the City’s tax base; (8) limitations due to geography and surrounding cities; (9) remaining vacant land within the municipality; (10) environmental influences; (11) the city’s need to exercise control over the proposed annexation area; and (12) increased new building permit activity.

In re Extension of Boundaries of City of Winona, 879 So.2d 966, 974 (Miss.2004) (citing In the Matter of the Enlargement and Extension of the Boundaries of the City of Macon, 854 So.2d 1029, 1034 (Miss. 2003)).

¶ 8. The City is a rapidly developing city with a population increase of twenty-five percent in the four years that followed the 2000 census. Chris Watson, the City’s Urban Regional Planner, testified that the City is also growing in the commercial, residential, industrial and public sectors, as evidenced by the increased building permit activity in both commercial and residential structures. Moreover, with the rate of population increase and commercial and industrial development, the land in Southaven is quickly being absorbed, thereby accelerating the City’s need for vacant, developable land. The City’s path for potential growth is also limited in places by the Tennessee state line and the borders of other cities in DeSoto County.

¶ 9. However, the trial court specifically stated in its “Findings of Facts and Conclusions of Law” that the City has no “need for developable land” in the Northeast Parcel because the parcel “is essentially built out.” Even though we adopt the chancellor’s finding of the fact that the Northeast parcel is “built out,” we do not agree with his analysis of this indicium. Under this indicium, we assess the municipality’s need to expand, which is independent of the character of the land sought to be annexed. Therefore, we find that the City properly demonstrated its need to expand. Consequently, the indicium favors annexation.

(2) Path of growth

¶ 10. In determining the indicia of reasonableness for the path of growth, this Court has said that a “city need only show that the areas desired to be annexed are in ‘a’ path of growth [sic] this does not mean that the area is ‘the most urgent or even the city’s primary path of growth.’ ” City of Winona, 879 So.2d at 977 (citations omitted). Moreover, this Court has set out a number of factors to be considered, such as: (1) spillover development in annexation area; (2) annexation area immediately adjacent to City; (3) limited area available for expansion; (4) interconnection by transportation corridors; (5) increased urban development in annexation area; (6) geography; and (7) subdivision development. Id.

¶ 11. This Court, in Enlargement and Extension of Municipal Boundaries of City of Meridian v. City of Meridian, 662 So.2d 597, 612-13 (Miss.1995), also held that the most important factors when determining the path of growth are the adjacency of the proposed annexation area to the city, accessibility of the proposed annexation area by city streets, and spillover of urban development into the proposed annexation area. Here, the chancellor found that, irrespective of the fact that the Northeast parcel “was platted and being developed many years prior to Southaven’s extension of its boundaries,” spillover growth occurred in that parcel from the State of Tennessee and the cities of Sou-thaven and Olive Branch. Furthermore, he found that the Northeast parcel is immediately adjacent to the City, that the City’s subdivision development was “occurring in the direction of each of the [PAA],” and that the Northeast parcel of land is in the path of growth of the City. The substantial credible evidence at the hearing supports the chancellor’s finding of reasonableness for this indicum.

¶ 12. The Northeast parcel is surrounded on three sides by the City and therefore is clearly adjacent to the City. The area is also interconnected to the City by Getwell Rd. on the west, Malone Rd. on the east and Stateline Rd. on the north. Moreover, Watson testified that portions of the annexation areas are accessible only from within the City, specifically Threat Rd. The chancellor also noted that, a drive-through assessment of the area showed evidence of massive subdivision development in Southaven in various stages. All these factors show that the Northeast parcel is in the City’s path of growth and thus favor its annexation.

¶ 13. This Court finds that the chancellor’s findings for this indicium were supported by substantial credible evidence and were reasonable. Thus, this factor favors annexation of the Northeast parcel.

(3) Potential health hazards

¶ 14. This Court has set out the following factors in determining whether any potential health hazards are reasonable: (1) potential health hazards from sewage and waste disposal; (2) a large number of septic tanks in the area; (3) soil conditions which are not conducive to onsite septic systems; (4) open dumping of garbage; and (5) standing water and sewage. City of Winona, 879 So.2d at 979 (citing In re Enlargement and Extension of the Bound aries of the City of Macon, 854 So.2d 1029, 1038 (Miss.2003)).

¶ 15. The Objectors contend that the City does not offer centralized sewer service to the residents of the Northeast parcel, but only offers “pressurized” sewer service on a voluntary basis (i.e., if the residents are willing to pay for it). This implies that, as long as State Department of Health regulations are complied with, the citizens who have septic tanks or individual treatment plants at their homes will be allowed to retain those facilities. Accordingly, they argue that the Court should not consider this indicum in its analysis because, after annexation, there will be no change from the health requirements or conditions that already exist.

¶ 16. Based on the experts’ reports and the residents’ testimonies, the chancellor concluded that there was a definite need for central sewer service in the PAA, given the potential health hazards created by poor maintenance of on site disposal systems by the property owners, odor problems from septic tanks, and the topography, which facilitates backflow of sewage to the City’s central sewer system. He further opined that a pressure system would be available to the residents of the PAA if they were in the City. After considering the experts’ testimonies, the chancellor found that such a system was favorable because: 1) it is cheaper; 2) the installation would be less disruptive than a gravity system; 3) installation would be faster; 4) it would eliminate potential health hazards; and 5) it would allow connections only where needed.

¶ 17. This Court finds that the chancellor’s findings for this indicium were supported by substantial credible evidence and were reasonable. Thus, this factor favors annexation of the Northeast parcel. (4) Financial ability to provide municipal services

¶ 18. This Court has considered the .following factors in determining whether there is reasonable financial ability to provide municipal services to the PAA: (1) present financial condition of the municipality; (2) sales tax revenue history; (3) recent equipment purchases; (4) financial plan and department reports proposed for implementing and fiscally carrying out the annexation; (5) fund balances; (6) the City’s bonding capacity; and (7) expected amount of revenue to be received from taxes in the annexed area. City of Winona, 879 So.2d at 981-82.

¶ 19. The chancellor found that “the evidence clearly establishes that the City of Southaven has the financial ability to provide the services and make the improvements set out in its ordinance of annexation.” He stated several reasons for his conclusions. First, the chancellor gave weight to the testimony of Demery Grubbs, an expert in municipal finance, who found that the City is “more than capable of providing the services” outlined in the financial plan.

¶ 20. With regard to fund balances, the chancellor stated:

Grubbs testified that his firm recommended to municipalities that fund balances be maintained in the 10 to 12 percent range. The most current audit reflects that Southaven had over a 20% fund balance in the general fund. The fund balances maintained by Southaven is indicative of the financial ability to provide the services and make the improvements promised.

¶ 21. Moreover, the chancellor gave deference to Grubbs’s positive review of the City’s sales tax history as well as to Mayor Greg Davis’s testimony attesting to the increase in the City’s sales tax revenues from $3.5 million to $10 million for the current year. Additionally, retail development in Southaven continues to be strong, evidencing continued sales tax growth.

¶ 22. As to recent equipment purchases, the chancellor found that “the proactive nature of the City of Southaven is dynamic evidence of its financial ability to serve the area.” This evidence includes the staffing and equipping of a fire station to serve the Northeast parcel and pumps to provide sewer service for the Northeast parcel.

¶ 23. Grubbs also testified that the City has “an excellent bonding capacity” with other non-bond financing options available to it as well. He also maintained that the City’s A-plus rating with Standard and Poor’s Rating Agency was an excellent indicator of its financial ability.

¶24. It is within the prerogative of the chancellor to accept or reject the testimony of any witness, to consider all facts not in dispute, and to make his decision accordingly. In re Extension & Enlarging of Boundaries of the City of Laurel, 922 So.2d 791, 798 (Miss.2006). This Court finds that the chancellor’s findings for this indicium were supported by substantial credible evidence and were reasonable. Thus, this factor favors annexation of the Northeast parcel.

(5) Zoning and planning

¶ 25. This Court previously has upheld an annexation even when a town had no zoning ordinance and presented no evidence of any urban planning. City of Winona, 879 So.2d at 982 (citing In re Extension of Corporate Boundaries of the Town of Mantachie, 685 So.2d 724, 728 (Miss. 1996)). Conversely, this Court has upheld an annexation even though a county already had a zoning ordinance. Id. (citing In re Extension of the Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 559 (Miss.1995)).

¶ 26. The chancellor found that this in-dicium did not favor the annexation of the Northeast parcel because it “is a platted area and also has restrictive or protective covenants which lessens the need for zoning and planning by the City of Southa-ven.”

¶27. In this case, the record clearly demonstrates that DeSoto County has “an excellent zoning ordinance and well organized county planning department.” Chris Watson also testified that DeSoto County has had a comprehensive plan since 1958. Therefore, this Court finds that the chancellor’s findings for this indicium were supported by substantial credible evidence and were reasonable. Thus, this factor does not favor annexation. This factor alone, however, does not determine whether or not the annexation is reasonable. In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d 270, 276 (Miss.1999) (twelve factors “are only indicia of reasonableness, not separate and distinct tests in and of themselves.”).

(6) Municipal services

¶ 28. In City of Winona, this Court said that the factors to be considered in determining whether the need for municipal services is reasonable may include: (1) requests for water and sewage services; (2) plan of the City to provide first response fire protection; (3) adequacy of existing fire protection; (4) plan of the City to provide police protection; (5) plan of the City to provide increased solid waste collection; (6) use of septic tanks in the proposed annexation area; and (7) population density. City of Winona, 879 So.2d at 984. This Court has found that sparsely populated areas have less need for immediate municipal services than densely populated areas. Id. (citing In re Enlargement and Extension of the Boundaries of the City of Macon, 854 So.2d 1029, 1041-42 (Miss.2003)).

¶29. The chancellor determined that the indicium of reasonableness for municipal services favored annexation. He based his conclusion on the fact that “ [a]ll the parcels sought to annexed are primarily urban or urbanizing,” and consequently, “in need of municipal services or will be in foreseeable future.” Substantial credible evidence in the record supports the chancellor’s finding of reasonableness for this indicium.

¶ 30. The Objectors contend that “while it arguably could be stated that Southaven could provide a higher level of such services, the evidence establishes beyond dispute that such services are adequately provided to the Northeast parcel and that most citizens in that area are adequately satisfied.”

¶ 31. Mayor Davis testified at the hearing that the fire station had been relocated to serve- the Northeast annexation area. As to the ambulance services, the City of Southaven has been providing that service to the PAA even without an interlocal agreement to do so. Moreover, Police Chief Tom Long elucidated Southaven’s plan to provide municipal-level police services to the PAA so as to provide “more police presence” in the area. With regard to septic-tank usage in the Northeast area, the Objectors’ engineer Danny Rutherford admitted that a need exists in the PAA for a central sewer. With regard to the population density, the Northeast parcel exceeds that of many municipalities around the state, thereby increasing the need for municipal services.

¶ 32. Therefore, this Court adopts the chancellor’s findings as supported by substantial and credible evidence. As the Northeast parcel develops and grows in population, the need for municipal services will grow, and the City of Southaven is well-equipped to provide them. Thus, this indicium favors the reasonableness of annexation.

(7) Natural Barriers

¶ 33. One of the indicia of reasonableness of a proposed annexation is whether there are any natural barriers between the municipality and the PAA. The chancellor ruled that there are “no natural barriers that would prohibit Southaven from providing the full range of municipal services and facilities to all the areas sought to be annexed.” This Court finds that the chancellor’s findings for this indicium were supported by substantial credible evidence and were reasonable.

(8) Past perfamanee

¶ 34. The Objectors proffered evidence alleging that the City of Southaven has a record of inadequate past performance in providing services. They gave an example of annexation in 1997 when centralized sewer service was not provided by the City for six to eight years after the annexation. They also pointed out that the City failed to maintain some roads which were overgrown, impassable or unpaved.

¶ 35. When comparing what the City promised and what it delivered, the chancellor concluded that Southaven had a record of good past performance. The chancellor considered the commitments in the services and facilities plan adopted as a part of the 1997 annexation and found that the City’s failure to provide sewer service, etc. “could be attributed to the vast amount of work that has to be done in a city with a growth rate of Southaven.” He further said that “there must be a line of priority,” concluding the City kept most of the promises it made in the 1997 annexation plan.

¶ 36. This Court has upheld an annexation as reasonable even when the City was unable to provide all services to its present residents. See In re Extension of the Boundaries of Hattiesburg, 840 So.2d 69, 89-91 (Miss.2003). Therefore, the chancellor was correct in concluding that the City’s past performance in providing services to the residents and landowners within its existing boundaries supports the reasonableness of the proposed annexation and favors annexation of the Northeast parcel. This Court finds that the chancellor’s findings for this indicium were supported by substantial credible evidence and were reasonable.

(9) Economic or other impact on residents and property owners

¶ 87. The Objectors argue that the proposed services they will receive if the PAA is annexed, are already furnished to them by DeSoto County. In addition, the Objectors claim that they will be forced to pay higher ad valorem taxes and that the annexation will cost each homeowner from $1,062 to $1,819 per year. They describe the annexation as nothing more than a “tax grab” or “tax crutch” for the City. Moreover, they contend that the mailing addresses in the Northeast Parcel will change, and this will result in a huge inconvenience to the citizens for several years.

¶ 38. The other economic argument the Objectors present concerns the reduction of property values in the Northeast Parcel. First, because property values are higher in Olive Branch than Southaven, the Objectors argue that losing association with Olive Branch will adversely affect property values in the Northeast parcel. Second, they presented the testimony of Jamie Edward Coker, a realtor and real estate broker, stating that the value of the homes in the Northeast parcel will be driven down because, in her opinion, customers prefer gravity centralized sewer system over the pressure sewer system that Southaven is offering.

¶ 39. This Court previously has found that “[t]he mere fact that residents in the PAA will have to pay more taxes is insufficient to defeat annexation.” City of Winona, 879 So.2d at 988 (citations omitted). Under this indicium, in Matter of the Extension of Boundaries of City of Columbus, 644 So.2d 1168, 1172 (Miss.1994), this Court clarified that the reviewing court is required to balance the equities by comparing the City’s need to expand and any benefits accruing to residents from the annexation with any adverse impact, economic or otherwise, which probably will be experienced by those who live in and own property in the annexation area. (Citing Matter of Boundaries of City of Jackson, 551 So.2d 861, 867-68 (Miss.1989)). The mere fact that residents and landowners will have to start paying city property taxes is not sufficient to show unreasonableness. Id. at 868.

¶40. Similarly, the Objectors’ argument in the case sub judice fails to convince this Court to render the annexation unreasonable. Moreover, this Court finds that the chancellor was correct in ruling that the change in mailing addresses would not be a significant inconvenience.

¶ 41. As to the argument that property values would decrease in the Northeast parcel, the balancing test as prescribed in Columbus is useful here. On one hand, the Northeast parcel will receive fire ratings which will result in lower fire insurance rates, ambulance services, more police protection, central sewer service, as well as other municipal services. On the other hand, the residents may experience increased taxes and a decrease in home values. The chancellor weighed each side and found that this factor weighs in favor of annexation. This Court agrees because the chancellor’s findings for this indicium were supported by substantial credible evidence and were reasonable.

(10) Impact on minority voting

¶42. The impact on minority voting strength was found to be de minimis, as 90.3 percent of the City of Southaven before annexation is white, 6.7 percent is African-American and 3 percent is described as “other.” After annexation, those numbers will shift slightly to the City of Southaven being 90.1 percent white, 7.1 percent African-American and 2.9 percent other, which is a 0.4 percent change. This Court finds that the chancellor’s findings for this indicium were supported by substantial credible evidence and were reasonable. This factor supports the annexation of the Northeast Parcel.

(11) Enjoyment of economic and social benefits of the municipality without paying a fair share of taxes

¶ 43. Based on the residents’ testimony, the chancellor found that “without a doubt .... the residents would be in fact enjoying the benefits of proximity of Southaven” in fire ratings, ambulance service, park and recreation service and road access.

¶ 44. The Objectors assert that they do not enjoy any benefits from the City without paying for them. Furthermore, the Summerwood neighborhood has its own park, obviating the need to depend solely on the Southaven park system. Consequently, the objectors state that they are not “freeloaders.”

¶45. Under our limited standard of review, this Court cannot say that the chancellor abused his discretion correct in finding that this indicium supports the annexation.

(12)Any other factors that may suggest reasonableness

¶46. Under this indicium, the Objectors contend that “based upon the telephone conversation between Mayor Davis and Mrs. Stephanie Russell [Vice-President of the Summerwood Neighborhood Association] ... this annexation was pursued because of the animus that the Sou-thaven Board of Aldermen had against Mr. Sparkman, one of the objectors, and others who were very vocal at City Board Meetings in opposition to this annexation.” Therefore, they argue, the annexation is for spite or for an improper or arbitrary reason.

¶ 47. The chancellor did not address this issue. This evidence, however, is insufficient to prove that the annexation was arbitrary or for an improper purpose. At most, it reflects one of the Board’s considerations in deciding which areas to annex. Moreover, the objectors themselves argue that if they must be annexed, they would prefer to be annexed by Olive Branch. However, this consideration does not cause the annexation by Southaven to be unreasonable.

CONCLUSION

¶48. Considering a city’s burden of proving the reasonableness of a proposed annexation, and because, absent an abuse of discretion, we leave undisturbed a chancellor’s finding of reasonableness, this Court affirms the chancellor’s judgment approving the petition for annexation.

¶ 49. AFFIRMED.

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

      . The median home value in Olive Branch is $125,800, while the median home value in Southaven is $91,400.

      . These numbers are obtained from the 2000 census.

      . This Court does not have before it the racial makeup of the Northeast Parcel. The entire PAA is 86.2 percent white, 13.1 percent African-American, and .084 percent other. However, for the purposes of analysis under this indicium, we consider the prior and resultant racial makeup of the City that seeks to annex, not the specific proposed annexation area. See In re Enlarging City of Brookhaven, 957 So.2d 382, 386 (Miss.2007).

      .The pertinent excerpt from the recorded telephone conversation is as follows:
      [Mayor Davis]: I just thought I would call you back. Mr. Sparkman has successfully over the last three of four weeks, agitated enough of my aldermen to where I can't keep Summerwood out of it. So, I was informed after he agitated the last one after this past Tuesday that Summerwood would be part of annexation no matter what. So, I felt like I needed to let you know, since I told you different.

        [Mayor Davis]: Sorry. And I had no idea, it’s different issues with different aldermen [sic], so I — ranging from sewer and water accusations to other stuff. But they just there isn’t no way in the world with him out there running his mouth that they aren’t going to go after him, and prove him wrong. So, anyway, I felt like I owed you a call.
      [Stephanie Russell]: Who did he hack off? [Mayor Davis]: The last one was Greg Guh. [Stephanie Russell]: Uh, oh.
      [Mayor Davis]: So, that made number five, I gave up, I can hold three or four down. [Stephanie Russell]: He got six, right? [Mayor Davis]: I can’t hold five. Five out of seven is even too much for me to even fight.