author: THIBODEAUX, Chief Judge. SAUNDERS, Judge,

text:
    STATE of Louisiana v. Courtney Paul SAVOY.
    No. 10-1140.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.

      James C. Downs, District Attorney, Willard Trichel Armitage, Jr., Assistant District Attorney, Alexandria, LA 71309 for PlaintiffiAppellee-State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant-Courtney Paul Savoy.
    Courtney Paul Savoy, Homer, LA, pro se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   THIBODEAUX, Chief Judge.

| iCourtney Paul Savoy was convicted of simple escape, in violation of La.R.S. 14:110, and sentenced to five years at hard labor, to run consecutively to an earlier sentence. The conviction arose out of Savoy’s actions as a principal in the escape of another inmate, Jacob Shaw. This conviction comes after this court vacated Savoy’s first conviction on the same charge and remanded the matter. See State v. Savoy, 08-1444 (La.App. 3 Cir. 6/3/09), 11 So.3d 1184.

The trial court also found Savoy to be a third felony offender and sentenced Savoy to ten years at hard labor, the longest term possible. The sentence is to run consecutively to Savoy’s other sentences. Savoy now appeals his conviction and sentence.

I.

ISSUES

We shall consider whether:

(1) there was sufficient evidence to convict Savoy of being a principal in escape of another where the witnesses gave conflicting testimony regarding Savoy’s participation in the escape;
(2) Savoy’s maximum sentences were excessive, i.e., whether Savoy is the worst offender where Savoy participated in planning of the escape but did not escape;
(3) the trial court’s denial of Savoy’s motion to suppress statements he and Shaw allegedly gave under duress was a harmless error;
(4) Savoy’s second trial placed Savoy in jeopardy the second time where this court vacated, at Savoy’s request, his first conviction;
(5) the trial judge should have been re-cused from Savoy’s trial because he allegedly coerced the co-defendant’s testimony where the trial judge 1 ⅞explained the potential of perjury prosecution if the co-defendant were to change his previous testimony;
(6) Savoy had full use of his peremptory challenges where the trial court, pursuant to the local rule, had a system of simultaneous exercise of peremptory challenges and where Savoy and the State eliminated the same juror;
(7) the trial court erred by disallowing Savoy to speak to his witness where the trial court allowed Savoy’s counselor to communicate with the witness;
(8) the trial court’s allowance of hearsay evidence in the form of a letter was a harmless error;
(9) the trial court erred by disallowing Savoy to call his previous attorneys as witnesses where Savoy stated he did not want his previous attorneys to testify;
(10) the trial court erroneously excluded Savoy’s testimony based on hearsay objection where Savoy was asked to repeat a statement made by another person when that person was available and did, in fact, testify;
(11) the trial court erred by allowing allegedly previously-suppressed testimony where the trial court did not, in fact, suppress that testimony;
(12) Savoy was selectively prosecuted as a multiple offender where his co-defendant was not so prosecuted;
(18) this court should consider the ineffective assistance of counsel issue where the record does not disclose sufficient evidence to rule on the issue; and,
(14) the State committed a discovery violation by using Savoy’s medical records where Savoy failed to make any objection to their use.

II.

FACTS

In January of 2007, Savoy and Shaw, both inmates at the Winn Correctional Center (Winn), were transported in a van by two prison guards, Parker |sand Morgan, to a hospital. Both inmates had been put in wrist cuffs, leg irons, and waist chains. When the van arrived at the hospital, Morgan opened the door of the van and reached for Shaw’s waist chain. The chain was not in place, and she saw it in Shaw’s hand. At that point, Shaw ran.

Parker fired a total of four shots and pursued him. Shaw disappeared into the woods. Parker returned to the van ten to fifteen minutes later. Savoy was locked inside the van wearing his leg and hand shackles and waist chain. After his Saturday escape, Shaw was captured on Monday. Parker never saw Savoy without his restraints.

After Shaw was captured, he told Lieutenant Bo Edmonds how he had slipped his belt off, undone one leg iron, and run away. In the second interview, after Shaw had returned to Winn, Shaw said Savoy helped him plan the escape.

Edmonds interviewed Savoy as a witness at the hospital right after Shaw’s escape. After Shaw’s second interview which implicated Savoy, Edmonds contacted the warden and requested a second interview with Savoy, this time as a suspect. Lieutenant Edmonds arrested Savoy for assisting in the escape after this interview.

Savoy’s counsel pointed out at trial that both Shaw and Savoy gave two statements, and the second statement of both took place after each had been returned to Winn. Both men’s testimony changed in their second statements. Lieutenant Ed-monds did not recall whether he asked either man why he changed his statement.

Warden Wilkinson and Bobby Tolar, a corrections officer, were present during Shaw’s second statement. Shaw never indicated he would receive additional punishment or that the warden threatened him, and Lieutenant Edmonds saw nothing in the demeanor of the warden or Officer Tolar that would have indicated any sort of intimidation.

|4Both the State and Savoy called Shaw as a witness at trial. Shaw met Savoy at Winn in 2006 and began to talk of escape. Shaw testified Savoy “came up with this plan that we go to the gym, drink a bottle of salt water, bang our heads against the wall until we get a knot on it, and then at the end of gym call, we’re gonna fake a fall down some steps, and then from there go to the infirmary.” When they carried out that plan, a doctor recommended they go to the hospital. On the way, Savoy picked his own and Shaw’s leg irons with a bobby pin Shaw found in the gym. According to Shaw, they planned to “bum rush the guard and get his gun, an’ put them in the van and handcuff them and shackle them, and then drive off.”

After Shaw was captured, he made a plea bargain for a two-year consecutive sentence. His plea agreement did not involve any special favors or an agreement to testify at Savoy’s trial. Shaw testified he was not threatened or intimidated when he gave the statement implicating Savoy. He further stated he lied when he said during the first interview that Savoy had nothing to do with the escape.

After Shaw was arrested after the escape and returned to Winn, he wrote a letter to Savoy and asked “why he played [Shaw] like a fool” and did not follow through with the escape. Shaw wrote the letter out of “curiosity and anger” and was not forced to write it.

About his transfer to the Allen Parish correctional facility after the escape, Shaw testified he requested to be sent to a facility unknown to Savoy. That was because the word got out around that Shaw was a “rat.”

Shaw was placed in the same holding cell with Savoy, Quindell Addison, and Travis Richardson during Savoy’s first trial. Shaw testified he was never intimidated by the warden, despite telling Savoy, Addison, and Richardson “the warden’s kinda pushing me right now” when he was in the cell with them.

|fiRichardson verified that Shaw felt he was in danger from the warden if he did not say Savoy had helped him. While Shaw, Addison, and Richardson were in the holding cell at the earlier trial and also while Shaw and Richardson were at Winn, Shaw told Richardson that Savoy did not pick his shackles. Shaw also told Richardson he gave false statements against Savoy, and Richardson believed Shaw had no reason to lie to him.

Addison testified he shared a cell with Shaw at Winn right after the escape. Defense counsel asked Addison if Shaw ever told him Savoy had nothing to do with the escape. Addison replied, ‘Tes sir. He told me he had nuthin’ to do with the escape” while they were in the cell together. Addison later testified, however, that Shaw said the plan was for Savoy to escape with him.

Addison further testified that Shaw admitted to giving false statements against Savoy in the presence of two attorneys, Richardson, and, possibly, Savoy. Shaw felt he made a mistake because if he testified with the defense, the warden would punish him, and if he testified with the prosecutors, Savoy would be punished. According to Addison, the warden threatened Shaw with an extended lock-down if he did not testify Savoy was the mastermind of the plan.

Addison and Savoy also knew each other from the Winnfield and David Wade facilities. According to Addison, Savoy told him he was supposed to go with Shaw on the night of the escape and that he was part of the escape.

Savoy testified at his trial. He denied planning the escape, assisting Shaw in the escape, or attempting to escape himself. Savoy testified he and Shaw were taken to the hospital after they fell on the stairs in the gym at the correctional center. Probably within an hour of the escape, Savoy gave his first statement to Lieutenant Ed-monds. The next morning, the assistant warden questioned him, and he told her the same story. One or two days later, Savoy talked to the chief of 1 (¡security, along with the assistant warden, and told them the same thing. He next spoke to the assistant warden and Warden Wilkinson and told them the same thing.

Savoy’s second statement, given after Shaw was apprehended and after Shaw’s second interview, was totally contradictory to these previous conversations. Savoy explained that the warden threatened him with an extended lock-down for as long as he was the warden. According to Savoy, the assistant warden read off a list of things Savoy needed to say.

Officer Tolar and the warden transported Savoy to the Pineville Police Department, and “on the way there he [the warden] went back over everything.” By the time recording of the statement began, Savoy agreed to say what the warden told him to say. He admitted that he denied, both at the beginning and at the end of that statement, that any threats or promises had been made or that any coercion had been used to get him to make the statement. Savoy explained that denial by the warden’s presence in the room and his threatening looks.

Officer Tolar testified about Savoy’s transport from Winn to the Pineville Police Department prior to the second statement. He heard no conversation about following a story, and he heard no threats. He did hear a conversation between the warden and Savoy about what happened. The warden would ask a question, and Savoy would voluntarily talk. Tolar denied that he, the warden, or Edmonds forced, threatened, or coerced Savoy into giving his second statement.

Warden Wilkinson testified Savoy was placed in pre-hearing detention, an isolated lock-up, when he was returned to Winn from the hospital on the night of the escape. He denied telling Savoy that he would either keep Savoy on extended lock-down or transfer him to another facility. Savoy was transferred at the warden’s request because of inmate safety issues.

| yShaw’s second statement came about because, according to the warden, he did not want to “take the fall” by himself. Shaw made a written statement saying Savoy had set him up, was supposed to go with him, helped him get out of the restraints, and helped him come up with a plan.

The warden was present during Savoy’s second statement. The warden denied that he or the assistant warden told Savoy what he was supposed to say. The atmosphere during the ride from Winn to the police station and during the statement was casual, without threats or duress.

III.

LAW AND DISCUSSION

(1) Sufficiency of Evidence

Savoy argues the evidence was insufficient to convict him of being a principal to simple escape. In his pro se brief, Savoy further argues the State failed to prove an essential element of simple escape; because the State did not prove human life was not endangered, he should be acquitted.

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984)). The Jackson standard of review is now in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521; See also State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. |sThe appellate court’s function is not to assess the credibility of witnesses or re-weigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, “the appellate court should not second-guess the credibility determination of the trier of fact.” Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27); see also State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084. “[A]n appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses ‘only to the extent necessary to guarantee the fundamental due process of law.’” State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378 (quoting State v. Mussall, 523 So.2d 1305, 1310 (La.1988)).

Simple escape is:

[t]he intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, or detained from a place where such person is legally confined, from a designated area of a place where such person is legally confined, or from the lawful custody of any law enforcement officer or officer of the Department of Public Safety and Corrections.

La.R.S. 14:110. “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La.R.S. 14:24.

At trial, Shaw testified he and Savoy formed an escape plan. He said he lied when he first said Savoy was not involved in his escape. He endangered himself by becoming “a rat,” and he told Addison and Richardson he would not testify against Savoy in order to protect himself. Shaw said he was never intimidated by the warden.

| sAddison and Richardson, on the other hand, stated that Shaw felt threatened by the warden and had given false' statements against Savoy. Addison testified the warden told Shaw what to say and threatened him with extended lock-down if he refused to say it. Yet, Addison also testified Savoy told him he was part of the escape.

Savoy further complains the State did not prove an element of simple escape, specifically, that human life was not endangered. The State did put on evidence that Parker fired four shots at Shaw. This does not, however, indicate the State’s failure to prove an element of simple escape. Rather, it shows the possibility that Savoy could have been charged as a principal to an aggravated escape, a more serious offense. Thus, this argument has no merit.

This trial involved testimony from several witnesses who contradicted themselves at one point or another. Nevertheless, the jury could have reasonably found, based on its credibility determinations, that Savoy aided and abetted in Shaw’s escape or directly or indirectly counseled with him to commit simple escape. Thus, the evidence at trial, accepting the jury’s credibility determinations, was sufficient to convict Savoy.

(2) Excessive Sentence

Savoy argues his initial maximum sentence of five years at hard labor for simple escape and his subsequent maximum sentence of ten years at hard labor as a third felony offender are constitutionally excessive. Savoy argues that he is not the worst offender and, therefore, should not receive the maximum sentence. In his pro se brief, Savoy argues he was erroneously given a harsher sentence on retrial (five and ten years) without the trial court’s showing of justification for a more severe sentence than was imposed at the first trial (five years).

|lfl“No law shall subject any person ... to cruel, excessive, or unusual punishment.” La. Const. art. 1, § 20.

To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted). The following factors help to decide whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals: “the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment,] and a comparison of the sentences imposed for similar crimes.” State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citing State v. Smith, 99-606, 99-2015, 99-2019, 99-2094 (La.7/6/00), 766 So.2d 501).

Although a comparison of sentences, imposed for similar crimes can be helpful, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Id. (quoting State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir.1991)). Because the trial court is in the best position to evaluate the aggravating and mitigating factors of a particular case, “it is within the purview of the trial court to particularize the sentence.” Id. Finally, “[a]s a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169 (citing State v. Grissom, 29,718 (La.App. 2 Cir. 8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2 Cir.1991)).

InThe statutory sentence for simple escape by a person already imprisoned is additional imprisonment with or without hard labor for two to five years; the sentence “shall not run concurrently with any other sentence.” La.R.S. 14:110(B)(3). The sentence of a third felony offender who has not been convicted of a crime of violence or a sex offense may be enhanced by a sentence of imprisonment “not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.” La.R.S. 15:529.1(A)(1)(b)(i). Thus, Savoy could have been sentenced as a third felony offender for a term ranging from forty months to ten years.

The following jurisprudence guides our reasoning. In State v. Williams, 538 So.2d 743 (La.App. 3 Cir.), writ denied, 544 So.2d 397 (La.1989), the trial court found the defendant was unlikely to be a favorable probationary risk, that the probability of recidivism was high, and that she represented a threat to society. The court also noted the defendant’s history of violent and criminal behavior and affirmed her three-year sentence for simple escape.

In State v. Townley, 94-1002 (La.App. 3 Cir. 5/3/95), 657 So.2d 129, writ denied, 95-2371 (La.1/26/96), 666 So.2d 669, the defendant was convicted of simple escape and then adjudicated a third felony offender. He was sentenced to five years at hard labor. His possible sentence was two-and-a-half to ten years.

The defendant in State v. Texada, 98-1647 (La.App. 3 Cir. 5/5/99), 734 So.2d 854, was one of three inmates who overtook unarmed jail guards. Two inmates threatened and hit the guards with metal rods while the defendant searched for keys to the cells. The trio locked the guards in a cell, where they remained for more than three hours, and escaped. After his capture, approximately two months later, the defendant was convicted of aggravated battery and aggravated escape. Treated as a Lafirst offender because he had no prior felony convictions, the defendant received the maximum sentence for aggravated escape, ten years.

When Savoy was sentenced for the simple escape, the trial judge imposed the maximum five-year sentence based on the reasons the judge articulated during Savoy’s previous trial. At that time, the court found an undue risk that Savoy would commit another crime during the period of suspended sentence or probation. Further, Savoy was in need of correctional treatment or a custodial environment that would be most effectively provided by commitment to an institution. The judge noted Savoy had been convicted of thirteen prior felony offenses and was serving more than twenty years of imprisonment.

The trial judge also found a lesser sentence would deprecate the seriousness of Savoy’s crime. The trial judge considered Savoy’s failure to tell the truth at trial to be an aggravating factor. Evidence at the habitual offender hearing showed that none of Savoy’s convictions involved crimes of violence.

This court concludes that one of the Smith factors does not support the trial court’s finding. Savoy was convicted as a principal to simple escape; he did not escape himself, but he aided someone else’s escape. Shaw, whose escape Savoy aided, was serving a twenty-year sentence for forcible rape at the time of his escape. He pled guilty to simple escape and received two years as his sentence. Thus, as one who was imprisoned for the commission of a crime of violence, a sex offense, Shaw received the minimum sentence for his completed escape, while Savoy received the maximum sentence for his role as a principal, enhanced to the maximum extent by the third offender adjudication.

This court finds Savoy is not a “worst offender” on whom a maximum sentence should be imposed. Further, the jurisprudence shows that the maximum sentence is, indeed, reserved for more egregious offenders than Savoy and that his 11soffense warrants a shorter sentence. Thus, this court vacates his sentence and remands the matter for re-sentencing.

(3) Motion to Suppress

Savoy filed a motion to suppress the statement he gave to Lieutenant Ed-monds at the Pineville Police Department and the statements Shaw gave implicating him. Savoy maintains these statements were made involuntarily and under duress.

This court finds that the evidence at trial, independent of the testimony sought to be suppressed, was sufficient to convict Savoy. Shaw’s testimony alone, if believed by the jury, would have been sufficient to support Savoy’s conviction. The jury unanimously found Savoy guilty; it obviously accepted Shaw’s testimony and rejected the testimony suggesting he testified under duress or threats. Even if Savoy’s motion to suppress had been granted and Lieutenant Edmonds would not have been allowed to testify about the statements Savoy and Shaw gave, the evidence would still have been sufficient. Thus, the trial court’s error in denying the motion to suppress was, if any at all, harmless.

Savoy further argues Rule 30(v) of the “Disciplinary Rules and Procedures for Offenders” promulgated by the Louisiana Department of Public Safety and Corrections “accomplish[ed] the threat made by Warden Wilkinson” to subject Savoy to indefinite lock-down if he did not say what the warden wanted him to say. The warden indicated at trial that an inmate could receive punishment for failure to cooperate with an investigation, and he referred to a “catchall” provision of Rule 30. Nevertheless, the rules were not admitted into evidence. Thus, this court may not consider the rule book attached to both defense counsel’s brief and Savoy’s pro se | 14 brief. See Uniform Rules — Courts of Appeal, Rule 1-3; Harris v. Aetna Ins. Co., 509 So.2d 486 (La.App. 3 Cir.1987). Therefore, this argument is without merit.

(4) Double Jeopardy

Savoy argues he was unconstitutionally subjected to double jeopardy because, had this court ruled on his assignment of error in his previous appeal concerning insufficient evidence for conviction, the ruling would have barred a retrial. This court vacated Savoy’s conviction and granted him a new trial because of the finding that he was prejudiced when the trial court erroneously disallowed the testimony of Addison and Richardson. Savoy, 11 So.3d 1184.

Louisiana Constitution Article 1, § 15 states: “[n]o person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained.” This language negates Savoy’s argument.

(5) Recusal

Savoy contends Judge Yeager should have been recused from presiding over his new trial because of his bias. Savoy argues Judge Yeager showed his prejudice by coercing Shaw into testifying against him at the first trial. Additionally, Savoy claims the judge’s bias prevented his attorney from effectively performing his defense.

A judge in a criminal case must be recused when he “[i]s biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial.” La.Code Crim.P. art. 671(A)(1). “[A] trial judge is presumed to be impartial.... Accordingly, for an accused to be entitled to the recusation on the grounds of bias, prejudice, and personal interest, such bias, prejudice and personal interest must be of a substantial nature based on more than | ismere conclusory allegations.” State v. Mayeux, 06-944, p. 22 (La.App. 3 Cir. 1/10/07), 949 So.2d 520, 534-35 (citations omitted). After a hearing, the trial judge appointed to hear the motion found no bias or prejudice.

When Shaw testified at the first trial, Judge Yeager advised him:

I’ve had your lawyer talk to you yesterday because there’s different things that are going here. Ah, as you recall, you, you gave a statement to the police saying that [Savoy] was involved as a principal, and was involved in, ah, your escape. And I’ve been told that, ah ... I’ve been told different things. Number one, that you were gonna testify and say that; number two, that you were not gonna testify, and ah, you were gonna have the Judge hold you in contempt; and number three, I’ve been told that you were going to testify saying that, ah, [Savoy] had nothing to do with your escape. If you testify saying that he did interfere [sic] with your escape, ah, then that’s okay. If you don’t wanta testify, that’s okay, too, and ah, I’mma order that you testify. And I’mma sentence you to contempt if you don’t. If you testify saying that he didn’t have anything to do, that’s gonna be contradictory to your prior statement, and the State could prosecute you for por [sic], perjury, sir. So, I don’t know exactly what you want do [sic]. I know your lawyer Ms. Tiffany Sanders discussed it with you yesterday, and it dun’t matter to me. I just can’t talk to you about that in the presence of the Jury, because there would be an adverse presumption that, ah, because, ah, you don’t wanta testify that it would be unfavorable to the Defendant, and I don’t want there to be an unfavorable inference in the presence of the Jury, sir. Tell me what it is you would like to do, sir.
BY MR. SHAW: I’m here to tell the truth.
BY THE COURT: All right. All right, sir. That’s fine then. You understand that if you, if, ah, Mr. Davenport who represents the Defendant asks you questions and you testify, you have to tell the truth. [The State’s attorney] will be allowed to ask you questions on cross-examination and you have to answer his questions. You can’t pick and choose what answers [sic] you want to answer, you understand?

When Shaw had asked if his attorney was going to appear, the trial judge indicated his understanding was that Shaw had already spoken with her, and she did not need to appear. The trial judge further explained to Shaw:

[ 1fi[Y]ou’ve given two inconsistent statements and there, so there’s possibly, ah, some perjury that could, could arise if you don’t testify truthfully today. You understand?
BY MR. SHAW: So you’re saying that either way I go, if I tell the truth or if I don’t want tell anything ... either way I go, I’m gonna get perjury?
BY THE COURT: No, if you don’t want do anything, you get, ah ... I’mma order that you testify and sentence you to serve six months on top of what you’re doing. Six months consecutive. If you come to court today and you tell the truth, based upon, based upon what really happened on January the 20th of 2007, you don’t have to worry about perjury. If you don’t tell the truth, you do have to worry about perjury.
The different options that we have is that you can come to court today and you can testify. That is your right. You have a right to testify if you wish. The Defendant has called you to testify, and so, ah, he’s going to ask you some questions about what happened on January the 20th. If you testify truthfully about what happened on January the 20th, 2007, then you don’t have anything to worry about, sir. Okay?
BY MR. SHAW: Okay.
BY THE COURT: If you don’t testify about what happened truthfully, then you can be prosecuted for perjury, because you’re under oath now. And while you’re under oath, it’s important that you tell the truth.
BY MR. SHAW: So according to my first statement and my second statement, regardless of which one is true— which the second statement is the truth — if you tell you [sic] exactly what was on the second statement, then you’ll get me for perjury for what was on the first statement, (interrupted)
BY THE COURT: No.
BY MR. SHAW: ... am I correct?
BY THE COURT: No. If the second statement is what you say is the truth, and you, you were not under oath when you testified on ... in the statements, and if you come to court and you testify and say, what I said in my second 117statement is, is the truth, and if that is what the truth is, then you’re not gonna be prosecuted for perjury, sir.
BY MR. SHAW: Okay. Let’s go.

This exchange indicates that Judge Yeager was not telling Shaw how to testify or was threatening him with perjury. Rather, Shaw had questions about the possibility of prosecution for perjury, and he said his second statement was the truth. Judge Yeager simply referred to the second statement as the truth as an example.

Based on the considerations above, Savoy has not shown bias or prejudice of a substantial nature on the part of Judge Yeager, and, thus, the trial court did not err in denying Savoy’s motion to recuse.

(6) Peremptory Challenges

Savoy contends he did not have a full use of his peremptory challenges during jury selection, and, therefore, his rights to a fair trial and due process were violated.

While the Louisiana Constitution grants a defendant the right to peremptory challenges, it does not guarantee him a certain number of strikes. State v. Lockhart, 629 So.2d 1195 (La.App. 1 Cir.1993), writ denied, 94-50 (La.4/7/94), 635 So.2d 1132. A defendant has six peremptory challenges by statute. La.Code Crim.P. art. 799. A district court may either tender a prospective juror to the State and then tender State-accepted jurors to the defendant, or it may “by local rule provide for a system of simultaneous exercise of challenges.” La.Code Crim.P. art. 788(B).

Here, the trial judge provided a form to both Savoy and to the State and asked each party to indicate its peremptory challenges. Savoy and the State both excluded Juror No. 104. Savoy argues his challenge was unnecessary because the State also struck the juror. Thus, his challenge could have been used to strike another | ^unacceptable juror. He claims this error denied his rights to a fair trial and due process.

At the hearing on Savoy’s motion for judgment of acquittal and/or new trial, the trial judge indicated that the court allows for the simultaneous exercise of challenges. As the trial court explained, “if the State turns in a sheet, and the Defendant turns in a sheet, and there’s six persons that can be picked on the jury, then the first six are that jury.” That is exactly what happened at Savoy’s trial. Therefore, this argument has no merit.

(7) Communication With Witnesses

Savoy complains that he was not allowed to speak to his own witness, Addison, prior to Addison’s testimony. Only Savoy’s counsel was allowed to speak to Addison. Savoy contends this limitation violated his right to a fair trial, prevented him from assisting in his own defense, and resulted in Addison’s giving of damaging testimony against him.

When the issue arose at trial, the trial judge stated he would allow the defense counsel and not Savoy to speak with the witness. The counsel stated he already spoke with Addison. When questioned whether he thought his client should be able to speak with Addison, the counsel abandoned his objection by his agreement that the ruling was “fair enough.” Thus, Savoy may not now raise the issue on appeal. La.Code Crim.P. art. 841.

Even if the counsel maintained his objection, the trial court may exclude witnesses from the courtroom and prevent them “from discussing the facts of the case with anyone other than counsel in the case.” La.Code Evid. art. 615(A). The trial judge properly enforced La.Code Evid. art. 615(A) by limiting Addison’s contact with Savoy.

\w(8) Hearsay Evidence

Savoy argues the trial court erred by allowing hearsay evidence in the form of a letter Shaw wrote to him after the escape. In the letter, Shaw referred to the plans they made regarding the escape.

Even if the trial court committed an error by allowing the letter into evidence, the error was harmless. The jury could have reasonably convicted Savoy on the grounds previously discussed. The letter only reinforced the other testimony that Shaw gave — that Savoy had helped him plan the escape and had planned to join him in it.

Savoy argues any error regarding the introduction of the letter into evidence was not harmless because the jury in the first trial rendered a guilty verdict only after requesting and receiving a copy of the letter. While Savoy’s contention may support the argument that admitting the letter in the first trial was not a harmless error, it has no bearing on the trial proceedings that are the subject of this appeal.

(9) Calling Previous Attorneys as Witnesses

Savoy argues he is entitled to a new trial because he was not allowed to call Thomas Davenport and Jonathan Goins as witnesses without waiving his attorney/client privilege. Because he could not call these witnesses, he contends Shaw’s perjury was allowed to go unchallenged.

Davenport and Goins represented Savoy at the first trial. The possibility of them testifying at this trial brought on a lengthy exchange about attorney/client privilege and the attorneys’ ethical responsibilities to Savoy. During the discussion, outside the presence of the jury, Savoy’s counsel said he wanted to ask Davenport about a question he asked Shaw at the earlier trial: “Did you not say yesterday in the presence of myself, Associate Goins and [Savoy] that you did not wanta [sic] testify ^^inconsistent [sic] with your second statement to Detective Edmonds because you were afraid to go back to Winn Facility?”

The trial court allowed Savoy and his attorney to speak to Davenport in chambers. The trial court placed Savoy under oath, and he testified that he wished to waive his attorney/client privilege for the purpose of having Davenport speak to his trial counsel. Savoy then commented, “we could just skip all this, ‘cause it seems like it’s gonna be a whole lotta [sic], a whole lotta [sic], a whole lotta [sic] stuff, when we already have two witnesses that have testified that they heard the same exact comment.’ ” The trial judge then asked Savoy, “[s]o you don’t want Mr. Davenport to testify at your trial now?” Savoy answered, “No sir.” The State’s attorney asked whether the decision applied to Goins as well, and Savoy replied, “Yes sir.” The trial judge then verified that the decision was that of Savoy, and not of his attorney. Savoy’s decision prohibits him from now raising this issue on appeal. See La.Code Crim.P. art. 841.

(10) Challenge to Credibility

Savoy argues the trial court erroneously sustained an objection by the State on the grounds of hearsay and, thereby, denied his right to testify on his own behalf. He contends testimony given for impeachment purposes is not hearsay, and the trial court’s ruling on the objection limited his ability to attack his co-defendant’s credibility.

“Hearsay is not admissible except as otherwise provided by this Code or other legislation.” La.Code Evid. art. 802. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La.Code Evid. art. 801(C).

|21“Extrinsic evidence ... is admissible to attack the credibility of the witness.” La.Code Evid. art. 607(D)(1). Extrinsic evidence, including the “evidence contradicting the -witness’ testimony, is admissible when offered solely to attack the credibility of a witness” unless the trial court performs a balancing test and the undue consumption of time, confusion of the issues, or unfair prejudice substantially outweigh the probative value of the evidence on the credibility issue. La.Code Evid. art. 607(D)(2).

The exchange between Savoy and his attorney at trial began with his attorney’s question:

Q. Do you, do you have a ... why do you believe [Shaw] would implicate you?
A. I can tell you what he told me.
Q. What did he tell you?
BY [STATE’S ATTORNEY]: Hearsay.
BY THE COURT: Sustained.

The response Savoy wanted to give was offered for the purpose of proving the matter asserted. Further, he was asked to repeat a statement made by someone else, Shaw, who was available to and did, in fact, testify. Nevertheless, this line of questioning should have been allowed to contradict Shaw’s testimony for the limited purpose of attacking Shaw’s credibility. Thus, the trial court committed an error by excluding this evidence without performing the balancing test as directed by La.Code Evid. art. 607(D)(2). Nevertheless, as previously discussed, the strength of the prosecution’s other evidence makes the error harmless.

(11) Previously-Suppressed Testimony

Savoy complains the testimony that had been suppressed prior to his first trial was erroneously allowed in this trial. Specifically, he complains about the 122testimony of Officer Tolar and Warden Wilkinson. The trial court suppressed the statements Savoy gave to the warden on January 24 and 25 of 2007 because the warden questioned Savoy at Winn (custodial interrogation) about Savoy’s involvement in criminal activity without giving him Miranda warnings. Savoy now asserts that his statements to the warden during the trip in the van to Pineville Police Department on January 29, 2007, should not have been allowed.

As the trial court correctly observed, Savoy’s statements in the van were not part of the suppressed testimony. Furthermore, while Savoy’s counsel asked whether the testimony had been addressed in a motion to suppress during questioning of Officer Tolar, he did not object to its admission into evidence, particularly after the testimony was identified. Thus, Savoy may not raise the issue for the first time on appeal. See La.Code Crim.P. art. 841.

Defense counsel objected to the warden’s testimony because, according to counsel, it was previously decided on a Motion to Suppress. The trial court overruled the objection. The warden’s testimony, like Tolar’s, was dealing with what was said during the ride from Winn to Pineville and during the statement taken at the Pineville Police Department. That testimony was not suppressed by the prior ruling. Thus, this assignment of error is without merit.

(12)Selective Prosecution

Savoy contends he was vindictively and selectively prosecuted when the State filed a habitual offender charge against him after the first trial, especially when Shaw was not charged as a multiple offender after his escape.

Anyone who has been convicted of a felony “shall be punished” as a multiple offender when he commits a subsequent felony in Louisiana. La.R.S. 15:529.1. The State proved a long list of Savoy’s prior felony convictions at his ^multiple offender hearing. Thus, it was justified by statute in charging Savoy. What the State did or did not decide with regard to Shaw is immaterial to its legal prosecution of Savoy as a habitual offender.

(13)Ineffective Assistance of Counsel

Savoy argues his counsel was ineffective “for not objecting to and preserving for appellate review any issues appellant has already [sic] raised in this appeal or any issues appellant could not raise in this appeal due to issues not being preserved for review.” Yet, he fails to identify any such issues.

The issue of ineffective counsel is more appropriately addressed in an application for post-conviction relief where an eviden-tiary hearing can be conducted at the trial court. State in the Interest of A.B., 09-870 (La.App. 8 Cir. 12/9/09), 25 So.3d 1012. Where an ineffective assistance claim is raised on appeal, this court may address the merits of the claim if the record discloses sufficient evidence to rule on it. Id.

This record does not contain sufficient evidence to determine whether counsel was ineffective, and Savoy provides no instances of the ineffectiveness. Thus, this issue is appropriately relegated to post-conviction relief.

(14)Medical Records

Savoy complains the State committed an open file discovery violation by using his protected medical reports. Savoy was questioned about these records at trial, and he failed to make any objection to their use. Savoy may not raise this issue for the first time on appeal. See La.Code Crim.P. art. 841.

Jaiv.

CONCLUSION

Based on the considerations above, this court affirms Savoy’s conviction for being a principal to simple escape and his adjudication as a third felony offender. Nevertheless, Savoy’s maximum sentences are excessive. Therefore, Savoy’s sentences are vacated, and the matter is remanded to the trial court for re-sentencing.

SENTENCE VACATED. REMANDED FOR RE-SENTENCING.

SAUNDERS, Judge,

agrees in part, and dissents in part and assigns written reasons.

hi agree with the majority opinion affirming all aspects of Defendant’s conviction. However, I disagree with the majority’s decision to vacate Defendant’s sentences.

I would affirm the trial judge in all respects. I do not agree that the trial judge exceeded his discretion in rendering sentences of 5 and 10 years respectively. The record before us suggests that Defendant has been guilty of no less than 13 different felony convictions. His versatility is remarkable. He has been convicted of simple burglary, burglary of an inhabited dwelling, forgery, possession of stolen things, bank fraud, illegal possession of firearms and a myriad of other serious crimes.

Heretofore, his crimes have not been of a violent nature. In this case however, he concocted a plan to overpower the guards and effectuate a multiple escape. The trial court was then faced with a man who continued to show contempt for law and order and who has now crossed the line from non-violent to violent felonious conduct. The trial judge is allowed great discretion in these matters. I do not feel that he has exceeded his discretion. Accordingly, I would affirm each sentence and respectfully dissent.


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Barry GREGG v. NATCHEZ TRACE ELECTRIC POWER ASSOCIATION and Electric Power Associations of Mississippi Workers’ Compensation Group, Inc.
    No. 2009-CT-00699-SCT.
    Supreme Court of Mississippi.
    June 9, 2011.

      Angela Turner Lairy, Bennie L. Turner, West Point, attorneys for appellant.
    Amy K. Taylor, attorney for appellees.
   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court.

¶ 1. Barry Gregg filed a petition to controvert concerning a work-related injury to his back that he sustained at his job as a serviceman with Natchez Trace Electric Power Association (Natchez). Gregg claimed that the injury had rendered him permanently partially disabled because, due to a pole-climbing restriction imposed after the injury, he was no longer able earn on-call compensation. After a hearing, an administrative law judge found Gregg had sustained no permanent disability. The Workers’ Compensation Commission (Commission) adopted the findings of the administrative law judge. Gregg appealed to the Circuit Court of Webster County, which affirmed the order of the Commission. Then, Gregg appealed to the Court of Appeals, which affirmed the decision of the circuit court. Gregg v. Natchez Trace Electric Power Ass’n, 64 So.3d 489, 494-95 (Miss.Ct.App.2010).

¶ 2. This Court granted Gregg’s petition for certiorari to consider whether the Commission erred by denying permanent partial disability benefits. We reverse and remand to the Commission for a hearing on the issue of lost wage-earning capacity.

FACTS

¶ 3. Gregg worked as a serviceman for Natchez. On July 21, 2004, he sustained an admittedly compensable injury to his lower back while lifting a tool belt. Gregg had surgery on his back, and his treating physician determined that he had reached maximum medical improvement on May 2, 2006. He returned to work on December 15, 2006, with a ten percent anatomical disability rating and a permanent climbing restriction.

¶ 4. At a hearing before an administrative law judge, Gregg testified that his preinjury job duties had consisted of restoring power, turning power on and off, climbing poles, and climbing ladders and hooking up service. He stated that his preinjury duties had required climbing and some heavy lifting. Gregg and his supervisor testified that he also had performed on-call service calls. Gregg was on call every other week for a seven-day period. He received a flat rate of one hour of time- and-a-half pay for each day he was on call, whether or not he actually performed any service calls that day. Gregg also automatically received two hours of time-and-a-half pay for each on-call service call that he performed, plus additional hourly pay if the time exceeded two hours.

¶ 5. After the injury, Gregg returned to work as a serviceman; his supervisor testified that other members of Gregg’s crew performed any climbing that was required on the job. Both Gregg and his supervisor testified that, because Gregg could no longer climb, he was taken off the on-call list. Gregg claimed that he was permanently partially disabled because, due to the climbing restriction, he was no longer able to earn on-call compensation after the injury as he did before the injury.

¶ 6. Gregg’s preinjury average weekly wage was $840.21, including on-call compensation, and his post-injury average weekly wage was $891.21, without on-call compensation. Gregg testified that the reason his post-injury earnings exceeded his preinjury earnings was that his base pay as a serviceman had increased due to cost-of-living raises. He testified that, because he was taken off the on-call list, he was no longer eligible to earn on-call compensation in addition to his base pay. Gregg argued that, but for the injury, he would receive compensation for on-call duties in addition to his base pay, as he did preinjury. Therefore, Gregg argued, his wage-earning capacity had decreased due to the injury.

¶ 7. The administrative law judge found that Gregg had failed show any permanent disability as a result of the injury. The full Commission, with one commissioner dissenting, adopted the decision of the administrative law judge. Gregg appealed to the circuit court, which affirmed the order of the Commission. The Court of Appeals affirmed the decision of the circuit court.

STANDARD OF REVIEW

¶ 8. This Court’s review of a decision of the Workers’ Compensation Commission is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated one’s constitutional or statutory rights. Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1250 (Miss.2010) (quoting Public Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (Miss.2003)). The concept of substantial evidence overlaps with the arbitrary-and-capricious standard, such that a decision that is unsupported by substantial evidence is necessarily arbitrary and capricious. Id. at 1251. Because the Commission is the ultimate fact-finder and judge of the credibility of the witnesses, this Court may not reweigh the evidence before the Commission. Id. (quoting Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (Miss.2005)).

¶ 9. This Court affords de novo review to the Commission’s application of the law. Natchez Equip. Co., Inc. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). “The legal effect of the evidence, and the ultimate conclusions drawn by [the Commission] from the facts ... are questions of law, especially where the facts are undisputed or the overwhelming evidence reflects them.” Cent. Elec. Power Ass’n v. Hides, 236 Miss. 378, 388-89, 110 So.2d 351, 356 (1959). “[W]hen the agency has misapprehended a controlling legal principle, no deference is due, and our review is de novo.” ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999).

DISCUSSION

¶ 10. Under the Workers’ Compensation Law, “compensation shall be payable for disability ... of an employee from injury ... arising out of and in the course of employment, without regard to fault....” Miss.Code Ann. § 71-3-7 (Rev.2000). “ ‘Disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § 71-3-3© (Rev.2000). “Disability” comprises (1) an actual physical injury; and (2) loss of wage-earning capacity. I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So.2d 44, 46 (1963).

¶ 11. The claimant bears the burden of proof of disability and its extent. Am. Potash & Chem. Corp. v. Rea, 228 So.2d 867, 868 (Miss.1969). This is not a simple comparison of the preinjury wage with the post-injury wage. Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 137, 61 So.2d 789, 792 (1953). “The benefits are figured on a percentage of applicant’s average weekly wages at the time of the injury as compared to ‘his wage-earning capacity thereafter in the same employment or otherwise.’ ” Id.

¶ 12. A rebuttable presumption of no loss of wage-earning capacity arises when the claimant’s post-injury wages are equal to or exceed his preinjury wage. Gen. Elec. Co. v. McKinnon, 507 So.2d 363, 365 (Miss.1987). This presumption is rebutted by

evidence on the part of the claimant that the post-injury earnings are unreliable due to: increase in general wage levels since the time of accident, claimant’s own greater maturity and training, longer hours worked by claimant after the accident, payment of wages disproportionate to capacity out of sympathy to claimant, and the temporary and unpredictable character of post-injury earnings.

Id. (emphasis added). “[A]ny factor or condition which causes the actual post-injury wages to become a less reliable indicator of earning capacity will be considered.” Id.

¶ 13. In the decision adopted by the Commission, the administrative law judge observed that Gregg makes more money after the injury than he earned before the injury. The administrative law judge found that Gregg had shown that he was permanently restricted from climbing. In her decision, the administrative law judge stated:

The claimant suffered an admittedly compensable injury in the form a[sic] back injury and was temporarily and totally disabled from the date of July 21, 2004 to and through the date designated and stipulated to be the date of maximum medical improvement, namely May 2, 2006.
Lay and medical testimony indicate that the claimant was ultimately returned to full duty with singular description and/or restriction of “no climbing” later specified to be “no pole climbing” which could indeed have been a part of serviceman work for the power company. However, lay testimony was replete with references that such “pole climbing” is not required for the discharging of all pertinent duties relative to the claimant’s current employment. He is in no danger of losing his job because of this permanent restriction and, further, it has no impact on his wage earning potential. Ergo, all factors considered, the claimant has suffered no [loss of] wage earning capacity and none is found.

The Court of Appeals affirmed the Commission’s decision on the basis of the presumption that, because Gregg earns more after his injury than he earned before the injury, Gregg had failed to prove that the climbing restriction had caused a loss of wage-earning capacity. Gregg, 64 So.3d at 493-94.

¶ 14. The Court of Appeals found that Gregg had failed to rebut the presumption of no loss of wage-earning capacity that arose, because his post-injury wages exceeded his preinjury wages, including on-call compensation, by approximately $50 per week. Id. The Court of Appeals affirmed the finding of no loss of wage-earning capacity, reasoning that, because Gregg earned more money post-injury without on-call compensation than he had earned preinjury with on-call compensation, he had incurred no loss of wage-earning capacity. This reasoning ignored the fact that Gregg had proven he was no longer eligible to earn on-call compensation because of the climbing restriction imposed due to the injury.

¶ 15. The Court of Appeals held that Gregg’s own testimony was the only evidence before the Commission that showed that Gregg was no longer eligible to earn on-call compensation due to the injury. Gregg, 64 So.3d at 494. The Court of Appeals stated: “[Gregg’s] weekly wage increased, and Gregg’s testimony failed to show both that he could not earn [on-call compensation] and also that he could not perform the duties of a serviceman with his climbing restriction.” Id. Contrary to this finding of the Court of Appeals, the record reflects undisputed evidence that Gregg’s post-injury wages at Natchez would have been higher but for the climbing restriction, because he could not earn on-call compensation post-injury. The following testimony is taken from Gregg’s cross-examination of the employer’s representative:

Q. Now Mr. Gregg has testified this morning that when he was working as a service man, he sometimes was on call for approximately seven days per week at a time; is that correct?
A. That’s correct.
Q. And he told us that when he was on call, if he received a call, he was compensated two hours overtime for the call assuming that it required two hours or less time to service it; is that correct?
A. That’s correct.
Q. And if it took six hours, he got six hours overtime?
A. That’s correct.
Q. Now he has told the Court that since he has been on this climbing restriction by his doctor, he’s not on call any longer; is that correct?
A. That’s correct.
Q. So whatever overtime he was generating from being on call, he’s not eligible for that now; is that correct?
A. He’s not eligible for that time, but there is — sometimes if he’s not on call a week at a time like he was, but there are some times I might call him for special things.
Q. That might be a certain occurrence or emergency where he may be called out and get some overtime, is that what you’re telling me?
A. That’s right.
Q. He has, I believe, testified that he estimated he probably got two calls during this seven-day period that he was on call, which would result in, approximately, four hours of overtime during that period. Would you disagree with that?
A. No, not really....

Thus, Natchez admitted that Gregg was no longer eligible to earn on-call compensation due to his work-related injury.

¶ 16. But for the climbing restriction imposed by his work-related injury, Gregg now could earn an amount over and above his regular wages through steady on-call compensation by being on-call every other week, as he had been preinjury. Because he had earned one hour of on-call compensation for every day he was on call, and he had been on call at least fourteen days per month, Gregg would have earned at least fourteen hours of on-call compensation in addition to his base pay but for the injury. Therefore, although Gregg’s regular wages increased post-injury, his post-injury income would have been higher but for the climbing restriction, because he could no longer augment his regular wages with steady on-call compensation. The record evidence supporting this conclusion is undisputed. Therefore, the Commission erred by finding that the injury “ha[d] no impact on his wage-earning potential.”

¶ 17. The Commission erred by considering Gregg’s higher wage post-injury as determinative of no lost wage-earning capacity. All of the evidence before the administrative law judge showed that Gregg had rebutted the presumption of no lost wage-earning capacity. We reverse and remand this case to the Commission for further development of the evidence concerning Gregg’s wage-earning capacity.

¶ 18. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS AND PIERCE, JJ., CONCUR. LAMAR, J., CONCUR IN RESULTS ONLY. KING, J., NOT PARTICIPATING.


author: RANDOLPH, Justice,

text:
    Gerald JONES v. STATE of Mississippi.
    No. 2009-CT-01890-SCT.
    Supreme Court of Mississippi.
    June 9, 2011.

      Gerald Jones, Jackson, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorneys for appel-lee.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court:

¶ 1. The Court of Appeals did not address the State’s claim that jurisdiction was lacking for Jones’s petition, as he had not filed an Application for Permission to Proceed as required by Mississippi Code Section 99-39-7 (Rev.2007). See Jones v. State, 64 So.3d 495, 498-99 (Miss.Ct.App.2010). We find that the trial court lacked jurisdiction to hear Jones’s petition and consequently that the Court of Appeals erred in addressing the merits vel non of the case. Thus, we vacate the judgments of the Court of Appeals and the trial court.

FACTS AND PROCEDURAL HISTORY

¶2. Regarding the Court of Appeals’ earlier dismissal of Jones’s direct appeal, the Court of Appeals stated:

On July 17, 2006, [the Court of Appeals] on its own motion dismissed Jones’s appeal as untimely filed. We determined that Jones’s post-trial motion was denied on January 24, 2003, and the notice of appeal was not filed until June 2, 2006. Therefore, the notice was not timely filed. We also stated that the docket faded to indicate that a motion for permission to file an out-of-time appeal was filed or granted. As a result, Jones’s appeal was dismissed.

Id. at 496-97. On June 24, 2008, without first requesting leave of this Court, Jones filed in the trial court a motion for post-conviction collateral relief. The motion was denied, and Jones appealed from that judgment. See id. After the Court of Appeals reversed the trial-court judgment, we granted the State’s petition for writ of certiorari. See id. at 498-99.

ANALYSIS

¶ 3. The issue is whether the trial court had jurisdiction to hear Jones’s petition, and whether the Court of Appeals had jurisdiction to hear the appeal. Mississippi’s Uniform Post-Conviction Collateral Relief Act (“PCR Act”) provides the following:

The motion under this article shall be filed as an original civil action in the trial court, except in cases in which the petitioner’s conviction and sentence have been appealed to the Supreme Court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi....

Miss.Code Ann. § 99-39-7 (Rev.2007). This Court has held that the dismissal of an appeal “because it was not perfected in the time and manner required by law” has “the effect of affirming [the appellant's conviction and sentence.” Johnson v. State, 394 So.2d 319, 320 (Miss.1981). Here, Jones’s direct appeal was dismissed, as it was not timely filed.

¶ 4. Regarding postconviction relief, Jones was required first to present his motion to this Court. There is no evidence that Jones ever requested from this Court leave to proceed in the trial court. See Evans v. State, 485 So.2d 276, 283 (Miss.1986); Meshell v. State, 832 So.2d 1244, 1245 (Miss.Ct.App.2002); Perry v. State, 759 So.2d 1269, 1270 (Miss.Ct.App.2000). Being without jurisdiction, the trial court should have dismissed the petition. The Court of Appeals erred in failing to address jurisdiction. See Thornhill v. State, 240 Miss. 131, 134, 126 So.2d 527, 528 (1961); Cortez v. State, 9 So.3d 445, 446 (Miss.Ct.App.2009).

¶ 5. As was Johnson, Jones “is not without remedy, however, and may avail [himself] of the modes of relief set out in the [PCR Act] by properly filing a petition in compliance with the requirements therein set forth.” Johnson, 394 So.2d at 320.

CONCLUSION

¶ 6. Both the trial court and the Court of Appeals erred in failing to dismiss the case for lack of jurisdiction. We vacate both judgments. We render judgment here, dismissing Jones’s PCR motion for failure to obtain leave to file as provided in Mississippi Code Section 99-39-7 (Rev.2007).

¶ 7. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT COURT OF LAFAYETTE COUNTY ARE VACATED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.


author: DICKINSON, Presiding Justice,

text:
    REBUILD AMERICA, INC. v. Tim A. NORRIS.
    No. 2009-CT-01191-SCT.
    Supreme Court of Mississippi.
    June 16, 2011.

      Kimberly Pine Turner, attorney for appellant.
    Steve Younger, attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. Tim Norris failed to pay the 2005 property taxes on his Jackson restaurant, so in August 2006, Sass Muni purchased the property in a tax sale. After Norris did not redeem the property within the two-year period provided by statute, a tax deed was issued to Sass Muni, which then deeded the property to Rebuild America.

¶ 2. When Rebuild America filed a suit to confirm title, Norris — arguing that he was never personally served with notice of the tax sale, as required by Section 27-43-3 — moved for summary judgment to have the tax sale set aside. The chancellor granted summary judgment and set the tax sale aside, and Rebuild America appealed, arguing to the Court of Appeals that the failure to effect personal service was excusable because the sheriff had made a good-faith attempt to effect service, and because Norris received actual notice by mail. The Court of Appeals rejected this argument and affirmed the chancellor. We agree with the Court of Appeals’ analysis of the issues as reported at Rebuild America, Inc. v. Norris, 64 So.3d 499, 501-02 (Miss.Ct.App.2010). But we granted certiorari to limit the Court of Appeals’ holding to the facts of this case, and to address Rebuild America’s request for reimbursement.

ANALYSIS

¶ 3. Section 27-43-3 generally requires the chancery clerk to provide notice of tax sale to the property’s reputed owner in three forms: (1) by “personal notice as summons issued from the courts are served,” (2) by “mail ... at his usual street address,” and (3) by publication “in a public newspaper of the county in which the land is located.... ” The Court of Appeals, citing our opinion in DeWeese Nelson Realty, Inc. v. Equity Services Co., stated without qualification: “All three requirements must be met for the redemption notice to be complete and in accordance with the statute.” But the requirement of all three methods of notice is not absolute in all cases. Under circumstances where “the clerk and sheriff have complied with the duties herein prescribed for them,” the tax sale may be- confirmed, even though the owner never received actual notice of the tax sale. So, although there may be cases where the lack of personal service will not void a tax sale, this is not one of them. The sheriff did not effect personal service as required, despite knowing Norris’s correct home address.

¶ 4. Rebuild America also argues that it is statutorily entitled to reimbursement of taxes paid for previous years, together with statutory interest and penalty. This issue is not properly before us, and must be decided by a separate claim made pursuant to Section 27-45-27(1).

CONCLUSION

¶ 5. The decisions of the Court of Appeals and the Chancery Court for the First Judicial District of Hinds County are affirmed.

¶ 6. AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. KING, J., NOT PARTICIPATING.

      . See Miss.Code Ann. § 27-45-3 (Rev.2010).

      . Miss.Code Ann. § 27-43-3 (Rev.2010) ("the sheriff shall be required to serve personal notice as summons issued from the courts are served”).

        . DeWeese Nelson Realty, Inc. v. Equity Servs. Co., 502 So.2d 310 (Miss.1986).

      . Miss.Code Ann. § 27-43-3.

      . Miss.Code Ann. § 27-45-27(1) (Rev.2010) ("The purchaser and the holder of the legal title under him by descent or purchase, may enforce the lien by bill in chancery, and may obtain a decree for the sale of the land in default of payment of the amount within some short time to be fixed by the decree.”).


author: PIERCE, Justice,

text:
    Roy Milton PAGE v. STATE of Mississippi.
    No. 2010-KA-01126-SCT.
    Supreme Court of Mississippi.
    June 30, 2011.

      Office of Indigent Appeals by Justin Taylor Cook, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Scott Stuart, Jackson, attorneys for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. On November 5, 2008, Officer Timothy Slade arrived at 301 McSwain Street, Hattiesburg, in response to a 911 call. At the scene, Slade observed a male sitting in the driver’s seat of a Kia Sorento, facing forward. The victim, Ray Spillman, (“Spillman”), was suffering from a gunshot wound to the left side of his head and did not appear to be breathing. Slade also observed that the driver’s side window was shattered in on the victim, indicating that the window had been up when Spillman was shot. After advising dispatch that an ambulance was needed, Slade, along with other officers who had arrived, separated the witnesses into separate vehicles until their statements could be taken. Cassandra Spillman (“Cassandra”), a witness on the scene, identified the man in the car as her husband, Spillman. Another witness on the scene identified the shooter as Roy Page and told Slade that Page had run away from the crime scene. Cassandra is also Page’s sister.

¶ 2. Detective Eric Proulx, while in route to the crime scene, was advised by dispatch that the shooter had been spotted at 1109 Deason Avenue, so he changed his course to help with the apprehension of the suspect. As he pulled up at Deason Avenue, Proulx saw Officer Sybert placing Page in handcuffs. While he was being handcuffed, Proulx heard Page say, “I did it. It was self-defense.” After Page was placed under arrest the officers on the scene of the arrest, recovered a nine-millimeter handgun that was lying on the ground and one round of nine-millimeter ammunition from Page’s left pocket.

¶ 3. Jeff Byrd, an investigator with the Bureau of Forensic Services, was called to the scene of the shooting to investigate. Byrd and his team began to photograph the scene. One of the pictures of the scene shows that the front passenger door was left open. The picture also shows the house located at 301 McSwain Street behind the Kia, with the couch on the front porch. In another photograph, a cigarette lighter is shown in Spillman’s right hand. In addition to taking the photographs, Byrd and his team also found a nine-millimeter shell casing. The shell casing was located on the ground, several feet from the left rear tire. At no point in their investigation did Byrd or his team find a weapon in Spillman’s vehicle or on his person.

¶ 4. Dr. Staci Turner, the State’s forensic pathologist, ruled Spillman’s cause of death to be a gunshot wound to the head. She further testified that the manner of his death was homicide. When cross-examined at trial by Page’s attorney, Dr. Turner testified that, while she was not able to determine how far away the gun was from Spillman’s head when it was fired, she was able to determine that the gun had been either more than three feet away from Spillman’s head or that an object had been interposed between the end of the gun and Spillman’s head when the gun was fired. Dr. Turner also testified that the side glass window of a car could be considered an interposed target.

¶ 5. Lori Beall, a forensic scientist for the Mississippi Crime Laboratory who specializes in firearms and tool-mark identification, confirmed that the bullet that killed Spillman had come from Page’s gun.

¶ 6. Charles Dykes, the owner of Discount Pawn, testified that Page had purchased the nine-millimeter gun from his shop. He identified the receipt from the purchase and matched the serial number of the gun from the receipt to the serial number of the gun recovered by the police. The date on the receipt is October 17, 2008.

¶ 7. At trial, Page testified that friction had existed between Spillman and himself, mostly stemming from Page’s belief that Spillman was abusing Cassandra. He also testified that, three to four weeks before the shooting, he and Spillman had been in a physical altercation. At the time of the altercation, they had been at 301 McSwain Street, Page’s mother’s house. As Page was sitting at the front door, Spillman had come in and pushed him and challenged him. Spillman then had walked close to Page’s car with a razor in his hand. Page, anticipating that Spillman was about to damage his car, had grabbed a stick and chased Spillman for about a block. Page then had put down his stick and two of them had begun to fight. During the fight, Page had been cut with the razor and needed to have thirty stitches. As he was leaving, Page claims that Spillman had told him that he was going to kill him.

¶ 8. Page testified that, several days after the first violent altercation, he had gone to Discount Pawn in Pearl, Mississippi, and had purchased the High Point nine-millimeter pistol that was used to kill Spill-man. He further testified that he had purchased hollow-point bullets for the gun from Wal-Mart.

¶ 9. Page then testified that, on November 5, 2008, he had gone to Leticia Carson’s house to find Spillman so the two of them could talk and make the situation between them better. On cross-examination, Page admitted to having had his gun on his person when he arrived at Carson’s house. Spillman was not at Carson’s house. After leaving Carson’s house, Page drove to his mother’s house, then to a bar down the street. After a few beers, he started to walk to his aunt’s house. In route to his aunt’s house, Page testified that he was attacked by Spillman and a few of Spillman’s friends. Page claimed that the men pushed him down and started kicking him. He further testified that Spillman had kicked him in the stomach. Page testified that, as a result of the attack, he had vomited and had a bloody mouth. After the attack, Page went back to the bar, got in his car and drove to his mother’s house.

¶ 10. Once at his mother’s house, Page sat on the couch that was located on the front porch. However, before leaving, Page went and grabbed his gun from his car and sat back down on the couch. Fifteen or twenty minutes later, Spillman and Cassandra pulled up. Page testified that Cassandra entered the house, closing the door behind her. Once she was inside, Page claimed that Spillman said to him “What’s up, you punk ass bitch.” Then, Page walked toward the car to let him know “that the situation wasn’t about nothing and it would be all right.” As he approached the vehicle he saw Spillman reach over to the right and saw something metallic reflecting in the light. Fearing that Spillman had a gun, Page “backed up and I pulled my gun out of my pocket. And when I pulled it out of my pocket, I cocked it. And when I cocked it, I just shot and started running.” Page claimed that he was merely trying to distract Spill-man so that Spillman would not shoot him. After shooting Spillman, Page went to Fredrick Burns’s house.

¶ 11. At trial, Burns testified that on November 5, 2008, he was at home around 8:00 p.m. when Page knocked on his door. When Burns opened the door, Page immediately started talking to him. Burns stated that Page had told him that he had come to Burns’s house to kill him, but that he had changed his mind. He then went on to say that he had shot someone and that the person was dead. Once Burns was able to get the gun away from Page, he called the police.

¶ 12. Cassandra’s testimony at trial varies from that of her brother. In describing the fight that had happened several weeks prior to Spillman’s death, Cassandra stated that Page had grabbed something that looked like either an ax or shovel and then had chased Spillman down the street. She then stated that “when he swung, if my husband wouldn’t have ducked, it would have cut his head off.” The fight had ended when Page fell to the ground and Spillman cut Page somewhere on his hand.

¶ 13. Cassandra’s testimony again varies from that of her brother’s when describing the events on the night of November 5, 2008. Cassandra testified that as she was approaching her mother’s front door, Page had already gotten off of the couch and had grinned at his sister as he walked past her. She told him “Don’t go messing with my husband.” She further testified that, as she was walking past him, it looked like he was fixing his shirt inside of his pants. By the time Cassandra had reached the front door, she saw Page going back on the driver’s side of the Kia. As Cassandra stood in the doorway talking to her mother, she heard a gunshot. Cassandra ran out to the car and said to Page, ‘You done shot my husband.” Page then took off running. Cassandra testified that she did not hear any conversation between the two men and explained that the driver’s window was up and that Spillman was still on the phone.

¶ 14. After both the State and the Page rested their cases, the jury members were given their instructions. Included in their instructions were an instruction for manslaughter and an instruction for self-defense. The jury found Page guilty of murder, and the judge sentenced him to life in prison. Page now appeals.

STATEMENT OF THE ISSUES

I. Whether the evidence is sufficient to support the verdict.

II. Whether the verdict is against the overwhelming weight of the evidence.

III. Whether the overwhelming weight of the evidence supports a conviction of manslaughter.

IV. Whether the Weathersby rule applies.

¶ 15. Due to the similarities of issues II and III, they will be discussed together.

ANALYSIS

I. Whether the evidence is sufficient to support the verdict.

¶ 16. When a challenge arises with regard to the sufficiency of the evidence, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under circumstances that every element of the offense existed; and where the evidence 'fails to meet this test it is insufficient to meet a conviction.’ ” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). In determining if the evidence is sufficient to support the verdict, the critical query before the Court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jones v. State, 39 So.3d 860, 867 (Miss.2010) (citing Morris v. State, 927 So.2d 744, 748 (Miss.2006)).

¶ 17. It is important to note that this review does not require the Court to

ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Bush, 895 So.2d at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (citations omitted) (emphasis in original). If the Court should determine that the facts are not sufficient to support the verdict, then the “proper remedy is for the appellate court to reverse and render.” Bush, 895 So.2d at 843.

¶ 18. In reviewing the evidence in the light most favorable to the prosecution, we find sufficient evidence to convict Page of murder. Mississippi Code Section 97-3-19(1)(a) states: “the killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (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(1)(a) (Rev. 2006).

¶ 19. The physical evidence presented by the State indicated that Spillman was sitting in his car, with his window up, facing forward, when he was shot. Page testified that he shot Spillman in self-defense after he believed that Spillman was reaching for a weapon. Cassandra testified that, several weeks prior to the shooting, Page and Spillman had been involved in a violent fight in which Page had grabbed something like a shovel or an ax and had chased Spillman down the street. Cassandra further testified that, on the night of the murder, as she had approached the door of her mother’s house, as Page had walked passed her, it had looked like Page was fixing his shirt inside of his pants. Cassandra then saw Page go to the driver’s side of the Kia. Experts testified that the gun used to kill Spillman was the gun recovered from Page when he was arrested.

¶ 20. It was the duty of the jury to reconcile the testimony with the physical evidence presented in deliberation.

¶ 21. Therefore, in considering the evidence in the light most favorable to the prosecution, this Court finds that the evidence was sufficient to support a verdict of murder.

II. and III. Whether the verdict is against the overwhelming weight of the evidence.

¶ 22. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844. In determining if the weight of the evidence supports the verdict, the Court weighs the evidence in the light most favorable to the verdict. Bush, 895 So.2d at 844. “The motion is addressed to the sound discretion of the court; a new trial should be granted only-in exceptional cases when the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)).

¶ 23. Page argues that the murder conviction was against the overwhelming weight of the evidence. Page further argues that “the overwhelming weight of the evidence established that Page shot Spill-man in necessary self-defense” or, in the alternative, that the “overwhelming weight of the evidence supports Page’s conviction for manslaughter rather than murder.” Page’s arguments lack merit.

¶ 24. “In order for a homicide to be justified as self-defense, the actor’s apprehension of danger must appear objectively real to a reasonable person of average prudence.” Jones v. State, 39 So.3d 860, 865 (Miss.2010) (citing Hart v. State, 637 So.2d 1329, 1339 (Miss.1994)). Further, “the issue of justifiable self-defense presents a question of the weight and credibility of the evidence, rather than sufficiency, and is to be determined by the jury.” Jones, 39 So.3d at 865 (quoting Wade v. State, 748 So.2d 771, 775 (Miss.1999)). In the alternative, for a killing to be considered manslaughter, it must be “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. The State sought to prove that Page had murdered Spillman, and it produced evidence to support its claim. In addition to the evidence previously discussed, the State also presented the testimony of Byrd, an investigator for the Bureau of Forensic Services. Byrd testified that Spillman was unarmed and that there had been no weapons in his vehicle. He further testified that Spillman was holding a lighter in his right hand. The State’s evidence proved that, at the time of the killing, there was no physical altercation between the two and that Spillman’s window was up.

¶ 26. Page testified that he and Spill-man had a history of friction and that he saw Spillman reaching for something metallic as he was approaching the vehicle on the night of the killing. Fearing for his life, Page then shot Spillman.

¶27. The jury members were given instructions on self-defense and manslaughter. During deliberations, the jury weighed the evidence presented and found that the State had proven the elements of murder. Due to the physical evidence and the testimony of the witnesses, we find that the verdict was not against the overwhelming weight of the evidence.

IV. Whether the Weathersby rule applies.

¶ 28. Under the Weathersby rule,

where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

McQuarters v. State, 45 So.3d 643, 650 (Miss.2010) (citing Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933)). In situations where conflicting eyewitness testimony is presented or physical evidence is presented in opposition to the defendant’s claim, “the case then becomes an issue for the jury. The jury is to determine if the defendant’s testimony is the more credible version of events and to decide either to convict or to acquit.” Jones v. State, 39 So.3d 860, 864 (Miss.2010) (citing Johnson v. State, 987 So.2d 420, 425 (Miss.2008)).

¶ 29. In Collins v. State, this Court held that “if an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for new trial.” Collins v. State, 594 So.2d 29, 36 (Miss.1992) (citing Jackson v. State, 423 So.2d 129, 131 (Miss.1982)). The rationale behind this rule is to allow the trial judge the opportunity to consider the alleged error before the issue is on appellate review. Collins, 594 So.2d at 29 (citing Cooper v. Lawson, 264 So.2d 890, 891 (Miss.1972)). The record reflects that Page did not bring up the Weathersby rule as a defense at trial or in his motion for judgment notwithstanding the verdict. For these reasons, Page is procedurally barred from raising this issue on appeal.

CONCLUSION

1130. The evidence presented to the jury was sufficient to support a verdict of murder. The overwhelming weight of the evidence also supports the verdict. Therefore, we affirm the judgment and sentence of the Circuit Court of Forrest County.

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

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

      . The Bureau of Forensic Services ("BFS”) was created through a $2 million grant to the University of Southern Mississippi. The BFS was a collaboration between Forrest, Lamar and Perry county sheriff's offices, the Forrest General Hospital police, the Southern Miss police, and the Hattiesburg and Petal police departments to investigate crime scenes. Jessie Bass, Forensic Services Group to Disband, The Hattiesburg American (May 31, 2011).