author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Fernundo THORNTON, Appellant.
    No. 44,077-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Louisiana Appellate Project by William Jarred Franklin, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, John W. Montgomery, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   DREW, J.

l iFernundo Thornton was charged with possession of cocaine, a violation of La. R.S. 40:967(C), along with three misdemeanors. In exchange for the defendant pleading guilty as charged on the one felony count, and for testifying against the codefendants in the case, the state agreed:

• to dismiss the defendant’s other pending charges;
• to refrain from filing a multiple offender bill against him; and
• to recommend that the court order a presentence investigation report on the defendant before sentencing.

The defendant, a third felony offender, was sentenced to four years at hard labor. A timely motion to reconsider sentence, alleging the excessiveness of sentence, was denied. The defendant appeals, alleging excessiveness. We affirm.

Our law is well settled as to review of allegedly excessive sentences.

|2On December 14, 2007, the defendant, along with two codefendants, was found in possession of cocaine after a search by officers during a traffic stop. The defendant was apprehended, advised of his rights, and confessed to the possession of cocaine. He also told the officers where he had obtained the cocaine.

Defendant pled guilty to one count of possession of cocaine on April 14, 2008. Several minor charges were dismissed in exchange for the plea.

The crime of possession of cocaine, a violation of La. R.S. 40:967(C), has a penalty range of imprisonment with or without hard labor for not more than five years. The court can also order the defendant to pay a fine not to exceed $5,000, plus the costs of court.

At sentencing, the trial court exhibited minimal, but acceptable compliance with the sentencing factors of La. C. Cr. P. art. 894.1. The court determined that the defendant had a long history of criminal activity and that his criminal conduct was the result of circumstances likely to recur.

Prior to imposing sentence, the court discussed several factors listed in the pre-sentence investigation report. The court stated that:

• the defendant was a third felony offender who had previously been convicted of two distribution of cocaine charges;
• the defendant had previous convictions for misdemeanors and felonies, as well as a criminal adjudication when he was a juvenile; and
la* the defendant failed to provide proof that he attended at least two substance abuse meetings per week, and to provide proof of his attendance when he returned for his sentencing.

Based on the record, we find that the court’s four-year hard labor sentence is measured and appropriate. It is certainly not excessive. Though the defendant’s prior criminal record is atrocious, the most telling factor about this defendant is that, as a condition of his post-conviction bond, the court ordered him to attend substance abuse meetings and to provide at sentencing written evidence of this attendance. The fact that the defendant failed to provide any of the requisite evidence at his sentencing hearing speaks volumes about his attitude toward court orders. He is not eligible for probation, and clearly not a good candidate for parole, considering his revocation of parole on other charges. We do not find the four-year sentence imposed by the trial court to be grossly disproportionate to the severity of the offense, nor is it shocking to our sense of justice.

The defendant’s conviction and sentence are AFFIRMED.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, and 2004-2380 (La. 6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379.

      . Three misdemeanor charges were dismissed: driving under suspension, no license plate light, and possession of drug paraphernalia.

      . Seventy-five days later, on the date of his sentencing, the defendant had no proof of attending the first AA or NA meeting.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    GANNETT RIVER STATES PUBLISHING CORPORATION d/b/a The News-Star and Barbara Leader, Plaintiffs-Appellees v. MONROE CITY SCHOOL BOARD, Vickie Dayton and James Dupree, Defendants-Appellants.
    No. 44,231-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      L. Douglas Lawrence, Bastrop, for Appellants.
    McNew, King, Mills, Burch & Landry, By: Brady D. King, II, William T. McNew, Monroe, for Appellees.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   LOLLEY, J.

_JjThe Monroe City School Board, Vickie Dayton and James Dupree appeal the judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, which was partially in favor of the plaintiffs, Gannett River States Publishing Corporation d/b/a The News-Star and Barbara Leader (collectively, “Gannett”). In response, Gannett answers the appeal. For the following reasons we reverse the judgment of the trial court.

Facts

On Monday, October 6, 2008, Barbara Leader, an employee of Gannett and the education writer for its newspaper, The News-Star, delivered to the administrative offices of the Monroe City School Board (“MCSB”) a document titled “Public Records Request” directed to “Monroe City Schools Superintendent James Dupree” and “Betty Carroll, Human Resources Director.” Leader made the request pursuant to La. R.S. 44:1, et seq., and the specific records requested were:

1.Any written correspondence, electronic or otherwise, regarding the hiring or recommendation to hire Cassandra Shelling in any position with Monroe City Schools;
2. Communications between Mr. Sam Moore or any other administrator with Monroe City Schools and Monroe City Schools, James Dupree or Betty Carroll relating to Cassandra Shelling; and
3. Employee files on Cassandra Shelling a.k.a. Cassandra Green (“Dr. Shelling”).

The record also contains a copy of a letter from Dr. Dupree to Leader dated October 7, 2008, stating, “This letter serves as notice that we have complied with your Public Records Request dated October 6, 2008.” Gannett acknowledges that the MCSB complied with the public records request as to |2items 1 and 2 above. However, it asserts that the MCSB did not fully comply with the entire request in that it did not produce the documents in item 3, namely, Dr. Shelling’s employee files. On Monday, October 13, 2008, counsel for the MCSB responded and explained that the request for Dr. Shelling’s employee file required an examination of records, a determination of Gannett’s eligibility to inspect those records, and a determination of whether redaction of “non-public records material” was warranted.

Gannett filed its Petition for Writ of Mandamus on October 16, 2008, and the matter was set for hearing on October 22. Only then did the MCSB file a supplemental response to the records request, in which it raised several objections to the production of the remaining requested documents based on certain provisions of both state and federal law. After considering the applicable statutory law and jurisprudence, as well as the employment records in dispute, the trial court determined that some of the requested documents were subject to disclosure and some were not.

Those documents it deemed subject to disclosure were placed in envelopes “A” and “C.” Those deemed not subject to disclosure were sealed and placed in envelopes “B” and “D.” The trial court also ordered attorney’s fees to Gannett pursuant to La. R.S. 44:35(D). This appeal by the Monroe City School Board, Vickie Dayton and James Dupree ensued, which Gannett has answered. Additionally, the MCSB filed a motion to seal all envelopes pending the appeal, so that Gannett has not had access to any of the documents, even those in envelopes “A” and “C.”

IsDiscussion

On appeal, the MCSB raises several assignments of error in connection with the trial court’s ruling ordering the disclosure of a portion of Dr. Shelling’s personnel file. We agree that a de novo review is warranted, noting that at issue are two separate statutory laws: the Louisiana Public Records Act, La. R.S. 44:1, et seq., and the School Employee Personnel Files Act, La. R.S. 17:1231, et seq.

The Louisiana Public Records Act, La. R.S. 44:1, et seq., provides for public access to information concerning state government as it is conducted through its many agencies. Fryar v. Guste, 371 So.2d 742 (La.1979). It is a product of La. Const. Art. 12, § 3, which provides that “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” Louisiana R.S. 44:1 (A)(2)(a) of the Louisiana Public Records Act defines “public records” as follows:

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are “public records,” except as otherwise provided in this Chapter or the Constitution of Louisiana.

|4The Louisiana Public Records Act was obviously intended to implement the inherent right of the public to be reasonably informed as to the manner, basis, and reasons upon which governmental affairs are conducted. Laws providing for the examination of public records must be liberally interpreted to extend rather than restrict access to public records. Skamangas v. Stockton, 37,996 (La.App. 2d Cir.03/05/04), 867 So.2d 1009, writs denied, 2004—1099 (La.06/25/04), 876 So.2d 839 and 2004-1125 (La.06/25/04), 876 So.2d 843.

However, La. R.S. 44:4.1 recognizes specific, stated “exceptions, exemptions, and limitations” to the Public Records Act, and states as follows:

A. The legislature recognizes that it is essential to the operation of a democratic government that the people be made aware of all exceptions, exemptions, and limitations to the laws pertaining to public records. In order to foster the people’s awareness, the legislature declares that all exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in this Chapter or the Constitution of Louisiana. Any exception, exemption, and limitation to the laws pertaining to public records not provided for in this Chapter or in the Constitution of Louisiana shall have no effect.
B. The legislature further recognizes that there exist exceptions, exemptions, and limitations to the laws pertaining to public records throughout the revised statutes and codes of this state. Therefore, the following exceptions, exemptions, and limitations are hereby continued in effect by incorporation into this Chapter by citation:
* * *
(8) R.S. 17:7.2, 46, 47, 81.9, 334, 391.4, 500.2, 1175, 1202, 1237, 1252, 1952, 1989.7, 2047, 2048.31, 3099, 3136, 3390, 3773, 3884[.] (Emphasis added).

IsSaid exception to the Public Records Act, La. R.S. 17:1237, states in pertinent part:

A. No school employee shall be denied access to his personnel file. The contents of a school employee’s personnel file shall not be divulged to third parties absent the express written consent of the school employee, except when ordered by a court or by subpoena, and no school system employee other than the personnel file custodian or the superintendent of schools for the system, or the designee of either who shall be a school system employee shall be allowed access to a school employee’s personnel file without the school employee’s express written consent, unless that employee is charged with the duty of supervising that particular school employee’s performance. In the case that a personnel file should be accessed by the superintendent or someone designated by him, the employee whose file was so accessed shall receive written notice of the fact and the name and title of the person who was permitted access. All persons permitted access under this Section shall maintain the confidentiality of those documents in the file which are not matters of public record. (Emphasis added).

So considering the statutory dictates, we are called to reconcile the two. Here, the trial court rejected the MCSB’s argument that La. R.S. 17:1237 created a blanket exception to the Public Records Act, noting that the statute must be read in light of the other provisions of Title 17 and the need to balance the public’s right to know with a school employee’s right to privacy. Thus, the trial court effectively gave no force to either La. R.S. 44:4.1 or La. R.S. 17:1237. We believe that such a determination was in error.

| (¡Questions of law, such as the proper interpretation of a statute, are reviewed by this court under the de novo standard of review. Louisiana Municipal Association v. State, 2004-0227 (La.01/19/05), 893 So.2d 809. “Legislation is the solemn expression of legislative will, and therefore, the interpretation of a law involves primarily the search for the legislature’s intent.” La. C.C. art. 2; Detillier v. Kenner Regional Medical Center, 2003-3259 (La.07/06/04), 877 So.2d 100, 103. The interpretation of a statute starts with the language of the statute itself. Louisiana Municipal Association, supra. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9.

The laws of statutory construction require that laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13. The legislature is presumed to have acted with deliberation and to have enacted a statute in light of the preceding statutes involving the same subject matter. Louisiana Municipal Association, supra. “Under our long-standing rules of statutory construction, where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter.” Hollingsworth v. City of Minden, 2001-2658 (La.06/21/02), 828 So.2d 514, 517.

A statute must be “applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the Legislature |7had in enacting it.” Sultana Corp. v. Jewelers Mut. Ins. Co., 2003-0360 (La.12/03/03), 860 So.2d 1112. In addition, “courts are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided.” Hollingsworth, supra at 517.

In the matter at hand, in order to reach a determination we must closely examine the pertinent statutes and give effect to all parts of the statutes at issue. It is not at all ambiguous that the Legislature intended for there to be some “exceptions, exemptions, and limitations” to the Public Records Act, otherwise La. R.S. 44:4.1 would not have been enacted. Notably, that statute lists 35 “exceptions” to the Public Records Act, each of which enumerated “exception” lists several specific section numbers. The Legislature specifically included La. R.S. 17:1237 in that “exceptions” statute. We cannot simply ignore that legislative intent, which we must presume was deliberate. The language of La. R.S. 17:1237 is strong: “The contents of a school employee’s personnel file shall not be divulged to third parties absent the express written consent of the school employee, except when ordered by a court or by subpoena....” (Emphasis added). The trial court’s judgment gave no force to that statute, nor to that portion of the Public Records Act that listed explicit exceptions to it. To affirm the trial court’s judgment would, in effect, ignore the legislative intent to provide stated exceptions to the Public Records Act, and we believe the trial court was incorrect in ignoring that obvious legislative intent. The trial court’s | finding made the explicit exception stated in the Public Records Act utterly meaningless.

We consider the trial court’s reliance on Skamangas, supra, misplaced. First, we note that Skamangas did not address an issue of an exception under La. R.S. 44:4.1, but the special treatment of records of prosecutive, investigative, and law enforcement agencies which is addressed specifically in La. R.S. 44:3. Second, noting that the “blanket exception” sought in Skaman-gas was ultimately determined not to be an exception, we observe the statement made in footnote 6 of the opinion:

We note that the legislature could have included such an exemption in the Public Records Act, but failed to do so. The legislature has enacted specific laws to prohibit disclosure of some records, for example: records in custody of the governor (La. R.S. 44:5), public hospital records (La. R.S. 44:7), and judiciary commission records until filed by the commission with the supreme court (La. R.S. 44:10). See also La. R.S. 44:4.1, which lists a multitude of exceptions. It is within the province of the legislature to enact a wholesale exemption for internal affairs records.

Thus, the Skamangas court actually recognized that certain records might be specifically excepted from disclosure, as is the case here.

If we are to consider, interpret and apply La. R.S. 44:4.1 and La. R.S. 17:1237 in harmony, how does that affect Gannett’s request for Dr. Shelling’s personnel file from the MCSB? There is little “reading between the lines” necessary to interpret either statute—they are clear and unambiguous. We have already noted that La. R.S. 44:4.1 creates certain explicit exceptions to the Public Records Act, and La. R.S. 17:1237 is one of those specific exceptions. Louisiana R.S. 17:1237 provides that a school board employee’s personnel records “shall not be divulged” to any third [¡party unless one of three things happen: (1) the employee gives written consent for the disclosure; (2) a court orders the disclosure; or, (3) the records are subpoenaed. Notably, none of those things happened in this case, because Gan-nett followed the procedures under the Public Records Act, i.e., it filed a writ of mandamus pursuant to La. R.S. 44:35. However, Gannett’s request to the MCSB was procedurally flawed from the start, because a request for school employee personnel files is not a public records request that can be enforced by a writ of mandamus—such records have been carved out of that statute as an exception under La. R.S. 44:4.1. We conclude that the procedure for seeking disclosure of such a record was not via the procedure set out under the Public Records Act, because such records are exceptions to the act.

Therefore, since the proper procedure for seeking such a record was not by writ of mandamus, it was incumbent upon Gannett to proceed against the school board via ordinary process and obtain a court order pursuant to La. R.S. 17:1237. And, as in any other ordinary proceeding, the burden of proof would lie with Gannett to show why it was entitled to this presumably confidential and private record. It would be Garnett’s burden to show what specific records it seeks and why—a general request for the entire record is insufficient to prove entitlement to the presumably confidential contents of the personnel file. Accordingly, the burden of proof for a request to | ^disclose an school employee personnel file is not upon the custodian of the records to show why the records were not public, which is the burden of proof required under the Public Records Act. Thus, in the case at hand the trial court misinterpreted the applicable statutory law by accepting Gannett’s request on its face as a public records request. As a result, the trial court erred in (1) applying the Public Records Act; (2) not considering the “exceptions” statute, i.e., La. R.S. 44:4.1; (3) not looking to La. R.S. 17:1237 for the proper procedure; and, (4) putting the burden of proof on the custodian of records to show why the records should not be disclosed.

Considering the foregoing, a discussion of the assignments of error raised by the MCSB in its appeal and Gannett in its answer to the appeal is pretermitted. Furthermore, considering that the writ of mandamus was not the proper procedure for obtaining the employee files of Dr. Shelling, La. R.S. 44:35(D) was not applicable, and the award of attorney’s fees was in error.

| hConclusion

For the stated reasons, the judgment of the trial court is reversed. All costs of these proceedings are assessed to Gannett River States Publishing Corporation d/b/a The News-Star and Barbara Leader.

REVERSED.

      . After declaring the contents of school employee personnel files "confidential,” the Legislature added § 1238 and expressed that the Section was not to be construed to supersede the provisions of the Public Records Act, "to the extent that those provisions otherwise apply.” That is, if the information contained in the employee personnel file is a public record which is available from another source within the school administration, then the custodian cannot rely on the fact that the document is also a part of the contents of the employee’s personnel file to refuse the requestor access. Admittedly, some portions of a school employee's personnel file might be legitimate public records.

      . "Divulge” means "(1) to make public: proclaim; (2) to make known (as a confidence or secret).’’ Merriam-Webster Online Dictionary.

      . Of those various assignments of error, the issue of whether Gannett, a juridical person, has standing to request public records pursuant to the Public Records Act was raised by the MCSB in the trial court. Notably, as argued by the MCSB, the statutes under the act appear to require a natural person making public records requests. The trial court noted a number of Public Record Act opinions where a juridical entity appeared as plaintiff. Simply because other juridical entities have appeared without objection as parties in some reported opinions is not necessarily reason as to why Gannett might have standing to appear as a plaintiff had this matter been a proper one under the Public Records Act. In fact, none of the cases cited by the trial court addressed that precise issue. However, for the reasons stated in Amoco Production Co. v. Landry, 426 So.2d 220 (La.App. 4th Cir.1982), writ denied 433 So.2d 164 (La.1983), we conclude that a juridical person is entitled to invoke the provisions of the Public Records Act. See also 82 A.L.R. Fed. 248, § 10 Corporations, noting federal court opinions which expressly ruled that various corporations seeking access to records under the federal Freedom of Information Act were members of the public or persons within the meaning of that act.


author: COOKS, Judge. '

text:
    Anna LEVY and Norman Trahan v. ENTERPRISE LEASING COMPANY OF NEW ORLEANS.
    No. 08-650.
    Court of Appeal of Louisiana, Third Circuit.
    April 8, 2009.

      L. Clayton Burgess, A.P.L.C., Lafayette, LA, for Plaintiffs/Appellants: Anna Levy and Norman Trahan.
    Katherine M. Loos, Briney & Foret, Lafayette, LA, for Defendant-Appellee: Enterprise Leasing Company of New Orleans.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   COOKS, Judge. '

|, On February 25, 2006, Norman Trahan was driving a 2000 Lincoln in which Anna Levy was riding as a guest passenger. Leon Boutte was driving a 2006 Chevrolet Malibu he rented from Enterprise Leasing Company of New Orleans at its Lafayette, Louisiana location. Boutte pulled his vehicle out in front of Trahan’s vehicle, causing Trahan to swerve and hit a pole. Both Trahan and Levy suffered injuries as a result of the collision. At the time of the accident, Boutte did not have automobile insurance. Boutte also did not purchase supplemental liability protection from Enterprise when he rented the vehicle at issue.

Suit was filed by Trahan and Levy against Boutte and Enterprise for the injuries sustained in the accident. Enterprise filed a Motion for Summary Judgment seeking to dismiss it from the case arguing that Boutte did not buy rental insurance for the vehicle he leased from Enterprise and that, pursuant to Louisiana law at that time, Enterprise’s own insurance carrier is not liable for any judgment rendered against any person it leased a vehicle to, even if that person did not have any insurance when it rented the vehicle. Enterprise cited Paragraph 7 of the Rental Agreement, which stated as follows:

7. Responsibility to Third Parties.

Owner complies with applicable motor vehicle financial responsibility laws as a state certified self-insurer, bondholder, or cash depositor. Except to the extent required by the motor vehicle financial responsibility laws of the applicable state or otherwise by law, Owner does not extend any of its motor vehicle financial responsibility or provide insurance coverage to Renter, Additional Authorized Driver(s), passengers or third parties through this Agreement. If valid automobile liability insurance or self insurance is available on any basis to Renter, Additional Authorized Driver(s) laws or any other driver and such insurance or self insurance satisfies the applicable state motor vehicle financial responsibility law, then Owner extends none of its motor vehicle financial responsibility. However, if Renter and Additional Authorized Driver(s) are in compliance with the terms and conditions of this Agreement and if Owner is obligated to extend its motor vehicle financial ^responsibility to Renter, Additional Authorized Driver(s) or third parties, then Owner’s obligation is limited to the applicable state minimum financial responsibility amounts. Unless required by law, Owner’s financial shall not extend to any claim made by a passenger while riding in or on or getting in or out of Vehicle. Owner’s financial responsibility shall not extend to liability imposed or assumed by anyone under any worker’s compensation act, plan, or contract.

Enterprise argues its policy did not extend its financial responsibility to cover the acts of renters as set forth in the terms and conditions of the Rental Agreement. Enterprise argues Louisiana’s financial responsibility law as a self-insurer. According to its standard rental agreement, Enterprise did not provide supplemental liability protection unless a renter elected such protection by initialing the block requesting same and paid for that service. Mr. Boutte did not initial the block requesting supplemental liability protection nor did he pay for such services.

In opposition to this argument, Plaintiffs noted the newly amended La.R.S. 22:681, which now mandates that all rented vehicles be covered by some form of insurance, is interpretive and should be applied retroactively. Enterprise countered that the amendment made a substantive change in the law and thus could only be applied prospectively. The trial court agreed with Enterprise and granted its Motion for Summary Judgment dismissing it from the plaintiffs’ suit. This appeal followed.

ANALYSIS

Resolution of the issues raised in this matter requires an interpretation of La.R.S. 22:681. An interpretation of a statute is a question of law that may be decided by a motion for summary judgment. State Farm Mutual Automobile Insurance Company v. U.S. Agencies, L.L.C., 05-0728 (La.App. 1 Cir. 3/24/06), 934 So.2d 745, writ denied, 06-933 (La.6/16/06), 929 So.2d 1288.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is ^appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La.Code Civ.P. art. 966(A)(2).

The trial court granted Enterprise’s motion for summary judgment on the grounds that La.R.S. 22:681, prior to the 2007 amendment, did not require rental companies to provide insurance coverage for the leased vehicle. The trial court determined that it was the duty of the lessee to provide insurance coverage for the leased vehicle. Plaintiffs counter this argument by asserting the amendment to R.S. 22:861 was interpretive and should be applied retroactively.

Prior to amendment La.R.S. 22:681, which became effective on August 15, 2007, read in entirety as follows:

Every approved insurance company, reciprocal or exchange, writing automobile liability, physical damage, or collision insurance, shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and rental private passenger automobiles any and all such insurance coverage in effect in the original policy or policies. Where an insured has coverage on multiple vehicles, at least one of which has comprehensive and collision insurance coverage, that comprehensive and collision substitute coverage shall apply to the temporary substitute motor vehicle or rental motor vehicle. Such insurance shall be primary. However, if other automobile insurance coverage is purchased by the insured for the temporary substitute or rental motor vehicle, that coverage shall become primary. The coverage purchased by the insured shall not be considered a collateral source.

We note initially the statute does not speak to vehicle owners, but rather references insurance companies. Every insurance company writing a policy covering the pliability of an owner also was required to extend such coverage to temporary substitute motor vehicles and rental private passenger automobiles. However, if other automobile insurance coverage was purchased by the insured for the temporary substitute motor vehicle or rental private passenger automobile, that coverage became primary and the other became secondary. La.R.S. 22:681 did not exclude, or for that matter, even mention the obligation of rental companies to maintain “compulsory insurance.” There appears to be no serious dispute between the parties that Section A of the amended statute simply recites the former statute without making any material changes. The amendment, however, added Section B.

|r;The added Section B recites that rental companies are required to maintain security on all rental vehicles meeting the requirements of the Motor Vehicle Safety Responsibility Law. The remainder of the section then sets forth essentially a ranking order as to which coverage is primary or secondary between the rental car owner’s insurer and the insurer providing collectible coverage to the driver or renter. It is the language referring to the rental car owner’s obligation to maintain security on all rental vehicle which defendant now insists “substantively changed the law” and is not enforceable retroactively in this case.

The legislature did not express its intent concerning the retroactive or prospective application of the amendment to La.R.S. 22:681. Therefore, we must determine whether the amendment was substantive, procedural or interpretive. Sudwischer v. Estate of Hoffpauir, 97-785 (La.12/12/97), 705 So.2d 724.

Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretative laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws.

Sudwischer, 97-785, p. 9, 705 So.2d at 728 (internal citations omitted) (internal quotations omitted).

Procedural and interpretive laws apply both prospectively and retroactively, unless there is legislative expression to the contrary. La.Civ.Code art. 6. The supreme court in St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809 (La.1992), elaborated on the distinction: substantive laws create and/or change rights, duties and | (¡rules, while procedural laws provide the avenue by which those rights, duties, and rules are enforced. Id.

The legislature has historically required that the owner of every motor vehicle, before it is allowed to be registered for use on the highways, give security for any possible injuries to persons or property caused by the faulty operation of a motor vehicle by taking out a policy of motor vehicle liability insurance, or by depositing cash, bond or other securities, or by becoming certified as a self-insurer. This requirement is found in the Compulsory Motor Vehicle Liability Security Law, La. R.S. 32:861, which existed prior to the amendment of La.R.S. 22:681. It provides in pertinent part as follows:

A. (1) Every self-propelled motor vehicle registered in this state [with the exception of certain classifications of vehicles] ... shall be covered by an automobile liability policy with liability limits as defined by La.R.S. 32:900(B)(2) or 900(M), or a binder for same, or by a motor vehicle liability bond as defined by Subsection B of this Section, or by a certificate of the state treasurer stating that cash or securities have been deposited or securitized with said treasurer as provided by Subsection C of this Section, or by a certificate of self-insurance as provided by R.S. 32:1042.

“At the heart of this statutory scheme is the decision to attach the financial protection to the vehicle rather than to the operator.” Hearty v. Harris, 574 So.2d 1234, 1237 (La.1991). Thus, the owner of the vehicle, who is at all times required to maintain “an automobile liability policy” on any vehicle registered in this state cannot absolve itself of this duty simply by renting the vehicle to a third party. There was no exclusion for leased vehicles set forth in La.R.S. 32:861. Had the legislature intended to exclude rental cars from the Compulsory Insurance Law, it could have expressly provided so when it enacted La.R.S. 32:861. The excepted vehicle classifications were “those motor vehicles used as agricultural or forest vehicles during seasons when they are not used on the highways, those used primarily for 17exhibit or kept primarily for use in parades, exhibits or shows, and lease-bound mobile rig haulers ...” Pertinent to this case, commercial vehicles were not excluded from the Compulsory Motor Vehicle Liability Security Law.

It is well settled in our jurisprudence that in determining the applicability of laws, the more specific governs over the more general. In the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, 730, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995). In short, the added language found in section B reciting that the rental company shall maintain security as required by La.R.S. 32:861 et seq., did nothing more than reference their then existing obligation to do so under the specific Compulsory Insurance Law. The remaining language in section B was procedural in nature and did not materially impose on rental car insurers a greater obligation than they had prior to the amendment.

The amendment to this section did not create or change any vested rights of the respective parties. The owner, here the rental company, had an obligation under the Compulsory Insurance Law to maintain insurance on the vehicle up to the statutory minimum, and the driver, as the tortfeasor, had a legal obligation to pay for the harm he caused.

Section B(l) also provides that “security maintained by the rental company shall apply only when there is no other valid or collectible insurance.” Section B(2) further specifies the rental company’s security is primed by a renter or driver’s “valid and collectible insurance, self-insurance, bond, deposit, or other form of security in an amount sufficient to satisfy the minimum financial responsibility requirements of the Motor Vehicle Safety Responsibility Law, [a] claimant’s] ... uninsured or un-derinsured motorist coverage for bodily injury or property damage claims, or when the renter violates the terms or conditions of the rental agreement.”

|8These provisos seek to rank the order in which the responsible insurers must pay. La.R.S. 22:681 prior to the amendment provided “if other automobile insurance coverage is purchased by the insured for the temporary, substitute, or rental motor vehicle, that coverage shall become primary.” The present amended language found in Section B does the same thing. It too is interpretive.

None of the language changes or additions to La.R.S. 22:681 increases or burdens the rental car companies prior obligation to maintain security.

DECREE

For the above reasons, we hereby reverse the trial court’s judgment granting of Enterprise’s motion for summary judgment and dismissing with prejudice all claims of Plaintiffs. We remand the case for a full trial on the merits as to the liability for the alleged negligent acts of Leon Boutte. Costs of this appeal are assessed to appellee, Enterprise Leasing Company of New Orleans.

REVERSED AND REMANDED.

      . The statute now provides, in pertinent part, as follows (changes to Section A are italicized):
      A. Every approved insurance company, reciprocal or exchange, writing automobile liability, physical damage, or collision insur-anee, shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and rental motor vehicles any and all such insurance coverage in effect in the original policy or policies. Where an insured has coverage on a single or multiple vehicles, at least one of which has comprehensive and collision or liability insurance coverage, those coverages shall apply to the temporary substitute motor vehicle, as defined in the applicable insurance policy, or rental motor vehicle. Such insurance shall be primary. However, if other automobile insurance coverage or financial responsibility protection is purchased by the insured for the temporary substitute or rental motor vehicle, that coverage shall become primary. The coverage purchased by the insured shall not be considered a collateral source.
      B. A rental company, as defined in R.S. 22:2102(5), shall maintain security on all rental vehicles meeting the requirements of the Motor Vehicle Safety Responsibility Law, R.S. 32:851 et seq., as follows:
      (1) Such security maintained by the rental company shall apply only when there is no other valid or collectible insurance or other form of security meeting the minimum financial responsibility requirements under the Motor Vehicle Safety Responsibility Law.
      (2) Notwithstanding a rental company’s obligation to provide minimum financial responsibility pursuant to the Motor Vehicle Safety Responsibility Law as the owner of the vehicle for the privilege of registering and titling such vehicle, a rental company shall be relieved of any security obligation under the Motor Vehicle Safety Responsibility Law when the renter or driver has valid and collectible insurance, self-insurance, bond, deposit, or other form of security in an amount sufficient to satisfy the minimum financial responsibility requirements of the Motor Vehicle Safety Responsibility Law, when the claimant maintains uninsured or underin-sured motorist coverage for bodily injury or property damage claims, or when the renter violates the terms or conditions of the rental agreement.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Gregory K. JONES, Appellant.
    No. 44,036-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 15, 2009.

      Kennota L. Pulliam, for Appellant.
    Don M. Burkett, District Attorney, Brian H. Barber, Anna L. Garcie, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ. STEWART, J.
   STEWART, J.

|, The defendant, Gregory Jones, was charged with aggravated rape, found guilty as charged, and given the statutorily mandated sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. The defendant now appeals, urging three assignments of error. For the reasons stated herein, we affirm the defendant’s conviction and sentence.

Facts

The defendant and the victim began dating in 2003, when the victim was 16 years old. The relationship ended shortly before the victim’s 18th birthday. The victim later testified that the defendant had raped her on her 18th birthday, but she did not press charges at that time. The defendant’s parents convinced her not to press charges by imploring that they had lost one son already and that they were going to get help for the defendant.

The victim remained in a relationship with the defendant for a short time, later testifying that she had hoped he would “get better.” Neither the defendant nor his parents sought help for the defendant. After the relationship ended, the defendant continued to contact the victim. He broke into the victim’s home on several occasions and went to the victim’s workplace. The victim told the defendant not to contact her and eventually obtained a restraining order against the defendant. The defendant refused to follow it.

The victim had two daughters at the time of trial. The older daughter was 4 years old. The younger daughter had been born prematurely on January 25, 2007, and was still in LSU’s Neonatal Intensive Care Unit six | {¡weeks later, at the time the instant offense occurred. The victim had obtained the restraining order against the defendant prior to the second daughter’s birth.

At approximately 9:00 p.m. on March 7, 2007, the victim was lying on the sofa watching television with her 4-year-old daughter when she heard her back door open. The defendant came in yelling and cursing, angrily asking why the victim refused to speak to him. The victim instructed her little girl to “put her head down in the couch.”

The defendant pulled the victim by her hair and began punching her, while pulling her into the bedroom. The defendant then inserted his fingers into the victim’s vagina and began scraping her insides with his fingernails. The victim screamed at him to stop and tried to fight back. The defendant raped the victim repeatedly, intermittently punching her face and upper body and scraping her insides with his fingernails. Afterward, the defendant pulled the victim into the bathroom and pushed her into the tub. He proceeded to clean himself with a towel and washed her with soap. The defendant instructed her not to tell anybody and not to call the police.

After the defendant left, the victim called her mother, who then called the police. The police transported the victim to the DeSoto Regional Hospital’s emergency room.

| ¡¡Detective Ronnie Shane Adams of the Mansfield Police Department received the call on March 7, 2007, regarding the defendant’s rape of the victim. Detective Adams had dealt with the victim and defendant on a regular basis, and had taken the earlier complaint of rape when the victim was 18. Detective Adams responded to DeSoto Regional Hospital to make contact with the victim. Detective Adams immediately noticed that the left side of the victim’s face was swollen, her left eye was swollen shut, and her eyelid was bleeding. Sergeant Johnny Zamarripa, who had responded to the scene, later testified that the victim’s clothes were torn, that she was distraught and crying, and that she had been beaten.

Tabitha Ward (“Ward”), a Registered Nurse (RN) and certified Sexual Assault Nurse Examiner (SANE), performed a sex crime examination on the victim when the victim arrived at the emergency room. Ward testified that 17 to 19 samples were taken from the victim, including hair, saliva, and pubic hair samples. The examination also included pictures of any marks that did not appear to be consistent with a regular skin tone, including bruising or tears. Ward testified that she was unable to complete the full examination of the victim because of the victim’s injuries. The victim’s most noticeable injury, in Ward’s estimation, was the avulsion, or digging out of the skin, that had occurred on the victim’s “vestibule,” or the area between the vaginal opening and the labia. The area at the site of the avulsion was bright red and swollen, to the extent that Ward was unable to insert the speculum in order to complete the examination.

|4The examination also included the application of Touline blue dye, which is a dye specially designed to uptake areas of friction. Ward testified that the uptake of the dye indicated friction and tears that were inconsistent with consensual sexual intercourse. Ward also testified that the injuries noted during the examination were not consistent with having given birth, because of the length of time between the birth, which occurred on January 25, 2007, and the examination, which occurred on March 8, 2007.

Other injuries to the victim included facial abrasions and bruises, as well as multiple abrasions, scratches, and bruises on the victim’s body. The victim also had a circular area on the back of her left calf which resembled a bite mark. Throughout the exam, the victim was tearful, quiet, and avoided eye contact. Ward stated that the victim was in such great pain that four people were needed to restrain her in order to apply local anesthetic.

Ward testified that the DNA samples taken from the victim’s vagina and from a bite mark/breast swab were consistent with the defendant’s DNA. Ward testified that the probability of the DNA being consistent with a random person pulled from the population was 1 in 75.1 trillion.

The defendant was charged with aggravated rape by bill of indictment on July 9, 2007. On April 9, 2008, after a jury trial, the defendant was found guilty as charged. On June 19, 2008, the defendant was sentenced to life in prison without possibility of parole, probation, or suspension of sentence. The defendant now appeals, urging three assignments of error.

|,LAW & DISCUSSION

In the defendant’s first assignment of error, he argues that the evidence is insufficient to support the verdict of guilty of aggravated rape. More specifically, the defendant argues that the no evidence was presented at trial which proved that he forced the victim to have sex with him.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). This standard, now legislatively embodied in La. C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, unit denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When 16the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497; State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App. 2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. This rule is applicable to the testimony of victims of sexual assault. State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. See also State v. Simpson, 39,268 (La.App. 2d Cir.1/26/05), 892 So.2d 694. Indeed, such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra. See also State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So.2d 468, writ denied, 1998-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999).

The defendant argues that the ease rested on circumstantial evidence and that the State did not exclude every reasonable hypothesis of innocence. He asserts that the victim fabricated this rape allegation and that the sex that occurred on March 7, 2007, was consensual. The jury reasonably rejected these hypotheses of innocence.

The victim testified that the defendant broke into her house, beat her, and raped her. She screamed for him to stop and tried to fight back. After the sexual act occurred, the defendant put the victim in the tub and washed her. He then instructed her not to tell anybody and not to call the police. These facts clearly indicate that this was not consensual sex.

The victim’s testimony that the defendant beat and raped her was consistent with the observations of the police officers and examining nurse. The testimony and evidence presented in this case were sufficient to find the defendant guilty of the crime of aggravated rape. Therefore, this assignment of error has no merit.

The defendant also alleges two additional assignments of error. In the second assignment, the defendant asserts that the trial court erred in | ¡¡denying his motion to dismiss. In his third and final assignment of error, he alleges that the trial court erred in denying his motion for post-verdict judgment of acquittal. However, the defendant only briefed the insufficiency of the evidence argument, noting that “the appellant’s assignments are argued jointly, as they are interrelated.”

URCA Rule 2-12.4 provides in pertinent part:

“All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.”

Thus, these two assignments of error are deemed abandoned.

CONCLUSION

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

AFFIRMED.

      . The defendant is not the father of either of the victim’s children.

      . In addition to the URCA Rule 2-12.4 violation, the defendant's second assignment of error is meritless, as the trial court does not possess the authority to dismiss charges. La. C.Cr.P. art. 691, etseq.


text:
    Melissa DODD, Plaintiff-Appellant v. MERIT ELECTRICAL, INC. and Liberty Mutual Insurance Company, Defendants-Appellees.
    No. 44,035-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 15, 2009.

      Street & Street by Curtis Daniel Street, Monroe, for Appellant.
    Mayer, Smith & Roberts, L.L.P. by Kim Loraine Purdy-Thomas, J. Kris Jackson, Shreveport, for Appellees.
    Before STEWART, PEATROSS and DREW, JJ.
   DREW, J.

|tIn this workers’ compensation case in which the accident occurred in Maryland, the sole issue is whether the claimant’s contract of hire was made in Louisiana so that the Office of Workers’ Compensation (“OWC”) had subject matter jurisdiction over the claim. The WCJ found that the contract of hire was made in Georgia. We conclude that the WCJ was clearly wrong in making this finding, and reverse the judgment sustaining the exception of lack of subject matter jurisdiction and dismissing the claim.

FACTS

Melissa Dodd, an electrician’s helper, and her husband Ernest Dodd, an electrician, were hired in March of 2007 by Merit Electrical, Inc. (“Merit”) to work in Georgia. The Dodds moved their family from Louisiana for the positions. Melissa was subsequently transferred to Maryland to work on another Merit project there.

On October 10, 2007, Melissa was allegedly injured while at work for Merit in Maryland. She injured her back picking up a heavy piece of conduit. Melissa originally received workers’ comp benefits in Maryland, but then decided to pursue benefits in Louisiana.

Melissa filed a disputed claim for compensation form with the OWC against Merit and its insurer, Liberty Mutual Insurance Company. Merit filed the exception of lack of subject matter jurisdiction. Merit claimed the OWC lacked subject jurisdiction over Melissa’s workers’ compensation claim because the accident occurred outside of Louisiana, Melissa’s employment was not principally localized in Louisiana, Melissa’s contract 12of hire was executed in Georgia, and Melissa did not elect the provisions of Louisiana’s workers’ compensation law as her exclusive state workers’ compensation remedy. Melissa asserted that extraterritorial jurisdiction applied because she was hired in Louisiana. The WCJ sustained Merit’s exception and dismissed Melissa’s claim. Melissa now appeals.

DISCUSSION

Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2.

La. R.S. 23:1035.1 provides extraterritorial coverage of the provisions of the Louisiana workers’ compensation laws. It states, in part:

(1) If an employee, while working out: side the territorial limits of this state, suffers an injury on account of which he, or in the event of his death, his dependents, would have been entitled to the benefits provided by this Chapter had such injury occurred within this state, such employee, or in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by this Chapter, provided that at the time of such injury
(a) his employment is principally localized in this state, or
(b) he is working under a contract of hire made in this state.
(4) Notwithstanding the above, an employee may elect as his exclusive state workers’ compensation remedy the provisions of Louisiana’s workers’ compensation law....

Melissa contends neither that her employment was principally located in Louisiana, nor that she elected to have Louisiana’s workers’ compensation law serve as her exclusive state workers’ compensation | ¿remedy. That leaves only “working under a contract of hire made in this state” as the basis for the exercise of extraterritorial coverage of Louisiana’s workers’ compensation law in this instance.

In determining whether a contract of hire is a Louisiana contract in a workers’ compensation case, the parties’ intent should be paramount. Haney v. B E & K Const., 30,825 (La.App. 2d Cir.8/19/98), 716 So.2d 514. Some factors to consider in determining the intent of the parties include domicile of the parties, the nature of the work to be done, and the place where the employment was initiated. Id.

Ernest, who was at home in Farmerville, Louisiana, at the time, called Donnie Thornton, a Merit job superintendent in Georgia, to inquire about the availability of jobs for himself and Melissa. Thornton replied that jobs were available and for them to send their resumés.

According to Ernest, after they sent their resumés to Thornton as instructed, Thornton called them to say that they were hired and he was sending paperwork to them to be filled out and returned. Patrick Borden, Merit’s safety manager at the time, testified that Thornton called Ernest and asked if he was interested in a job. The Dodds filled out the paperwork, faxed it to Thornton, and brought it with them to Georgia.

Merit entered four one-page documents into the record at the hearing on the exception. These documents were an “Agreement by Applicant,” a page from Merit’s safety manual, the custody and control form for a drug screen, and an “Employee’s Record.”

|4The agreement by applicant, which is part of the hiring application, was signed by Melissa and dated March 19, 2007. The agreement stated that as a condition to hire, Melissa agreed to submit to physical exams, including blood and urine tests, and that her initial employment may be contingent upon the results of those exams. It also stated that no person except the president of Merit had the authority to bind Merit to enter into any agreement with Melissa regarding the duration or any of the terms or conditions of her employment, and that no such agreement was enforceable unless in writing and signed by the president.

The page from Merit’s safety manual states that “employees are required as a prerequisite to employment ... to cooperate with alcohol and drug testing procedures.” It further states, “Any offer of employment that may be extended to an applicant is conditioned upon the applicant’s successful completion of a pre-em-ployment alcohol and drug screen.” The custody and control form for the drug screen stated that the sample was taken and tested on March 19, 2007.

The “employee’s record” contains Melissa’s personal information. It reports an effective date of March 19, 2007. Georgia was filled in as the state for tax purposes. This document is part of Merit’s hiring package.

Melissa testified that part of the hiring package, including the employee’s record, was filled out in Farmerville after it was sent to the Dodds by Thornton. They then faxed the completed forms to Thornton and brought the forms with them to Georgia. Melissa denied receiving any of the safety manual in Louisiana. Melissa explained that the reason the | ^documents were dated March 19 even if they had been completed earlier was that they were instructed to date the documents with the date they were supposed to start working. Melissa was placed on Merit’s payroll on March 19, 2007.

Borden stated that the agreement by applicant and employee’s record would have been filled out at the same time when the drug screen was performed. Borden did not believe that any of Melissa’s hiring package documents were prepared in Louisiana; however, he did not know if Thornton had sent any papers to the Dodds to fill out before they left Louisiana.

Borden insisted that before anyone becomes a Merit employee, she or he must first undergo a drug screen and fill out an application onsite. Borden recalled that Melissa’s application was filled out in Savannah, Georgia.

Melissa does not dispute that she was not hired until March 19, when she took and passed the drug screen. She was aware that any offer of employment was contingent upon passing the drug test. Ernest knew from Thornton that they would have to take the drug test when they arrived in Georgia, and that passing the drug test was a condition to being hired. Ernest believed that he was hired once he finished the drug test.

Uprooting their family and moving to Georgia was not easy for the Dodds. They had to take their children out of elementary and middle schools in Farmerville. They drove over 800 miles in two trucks and while hauling a fifth-wheel trailer. Ernest and Melissa both said they would not | (¡have done this if they did not believe they had jobs waiting for them in Georgia. Melissa knew they would pass the drug screens because they did not use drugs.

Ernest wanted to make certain that he and his wife had the jobs before they left for Georgia. He recalled that when Thornton told him over the phone that he had the job if he wanted it, he told Thornton that he wanted to have the paperwork sent to him before he moved his family. Thornton faxed the paperwork. The Dodds asserted that they filled it out, then faxed it back to Thornton.

The case of Harvey v. B E & K, supra, is factually similar to this matter. In Harvey, the claimant, a boilermaker, had worked for B E & K since 1991. He was injured in 1994 while working in Hopewell, Virginia. Prior to that, Harvey had been working in Mobile, Alabama. He spoke to his foreman about the Hopewell job before leaving Alabama but did not get any job details. When Harvey returned to his home in Louisiana, he called B E & K’s personnel manager about the Hopewell job. After learning some of the job details, he accepted it. Harvey testified that he would not have left his home and driven to Virginia if he was not certain that he had a definite job upon arrival.

When Harvey arrived in Virginia, he completed his paperwork, drug test and physical. Nevertheless, the court concluded that the evidence supported the WCJ’s finding that an employment agreement had been reached in the phone conversation with Harvey at his Louisiana home.

|7The determination as to whether a claimant was working under a contract of hire made in Louisiana is a factual one. See Baldwin v. North American Energy Services, 2007-667 (La.App. 3d Cir.10/31/07), 970 So.2d 101, writ denied, 2007-2810 (La.2/1/08), 976 So.2d 717. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

The record established that there were discussions concerning the job positions between Ernest and Thornton while the Dodds were still in Louisiana. Merit disputes that hiring documents were completed in Louisiana; however, Thornton did not testify, so his version of events is unavailable.

[RThe provisions in the documents in the record that employment was conditioned upon passing an alcohol and drug screen may have been an attempt to circumvent the effect of Harvey, supra. It does not state in Harvey that Harvey knew the job was his if he passed the drug test and physical, but certainly it would not be unreasonable to assume that despite whatever Harvey was told in Louisiana, he knew that he would not have gotten the job if he had flunked the drug test or physical.

Another attempt to circumvent Harvey has been the provision in the agreement by applicant that no person except Merit’s president had the authority to bind Merit to enter into any agreement with Melissa regarding the duration or any of the terms or conditions of her employment, and that no such agreement was enforceable unless in -writing and signed by the president. This agreement was part of the application. If, as testified by Borden, a prospective employee must fill out an application onsite, then Melissa would not have been privy to this provision when Ernest and Thornton engaged in conversation about the job. In addition, Melissa began working for Merit, yet the record does not contain a written agreement signed by the president regarding the terms and conditions of Melissa’s employment.

Melissa had a reasonable expectation that she had the job before she left Louisiana for Georgia. Although she knew that a condition of her being hired was a negative drug screen, this was a mere formality as she did not |ause drugs. Of course, Melissa passed the drug test and began working for Merit.

Based upon our review of this record, we conclude that the WCJ was clearly wrong in finding that the contract of Melissa’s hire was not made in Louisiana. The exception of lack of subject matter jurisdiction should have been denied. The judgment dismissing Melissa’s claim is reversed, and the matter is remanded to the WCJ for further proceedings.

DECREE

At appellees’ cost, the judgment is REVERSED and the matter REMANDED.

      . Merit’s corporate office is located in Baton Rouge.

      . Borden testified that Melissa filled out her application in Georgia. Merit states in its brief that Melissa signed the agreement of applicant in Louisiana.

      . The employee’s record has a signature for the line "Authorized By:” but it does not indicate exactly whose signature it is.


author: SMITH, Chief Justice, for the Court.

text:
    William G. SCOTT a/k/a William Scott v. STATE of Mississippi.
    No. 2005-CT-00915-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2008.
    Rehearing Denied May 14, 2009.

      J. Christopher Klotz, Joshua Aaron Turner, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorneys for appellee.
   SMITH, Chief Justice, for the Court.

¶ 1. William Scott was convicted of capital murder for the slaying of Paula Kay Dinkins during an armed robbery at Cash Depot, where Dinkins worked. Dinkins had been shot in the head. The jury found Scott guilty of capital murder and sentenced Scott to life in prison without the possibility of parole. Scott appealed on the following grounds: (1) whether the trial judge erred in failing to recuse herself after an ex parte conference with Scott’s attorney; (2) whether the trial judge erred in denying Scott’s motion to suppress his written confession; (3) whether the trial court erred in denying a motion to dismiss for failure to grant a speedy trial; (4) whether the State’s closing argument constituted reversible error; and (5) whether Scott received ineffective assistance of counsel under the Sixth Amendment.

¶ 2. The Court of Appeals reversed the jury verdict and remanded the case for a new trial and a new evidentiary hearing and found as follows: The trial judge abused her discretion by failing to recuse herself after an ex parte hearing with Scott’s counsel; the trial court abused its discretion by admitting Scott’s confession into evidence; and the trial court’s denial of a motion to dismiss for failure to provide a speedy trial was not supported by sufficient evidence on either side and required a new evidentiary hearing to determine if Scott was prejudiced by the State’s failure to provide a speedy trial.

¶ 3. Having remanded the case for a new trial and a new evidentiary hearing, the Court of Appeals held it unnecessary to reach the issue of whether the closing argument resulted in reversible error. Lastly, the Court of Appeals held that Scott’s claim of ineffective assistance of counsel would be better brought by motion for post-conviction relief and declined to reach the issue. Scott v. State, 8 So.3d 871 (Miss.Ct.App. Mar.18, 2008).

¶ 4. We disagree. We reverse the Court of Appeals’ decision and hold that the trial court: (1) did not commit manifest error or abuse its discretion when the trial court judge did not recuse herself after an ex parte meeting with Scott’s counsel while acting in her role as gatekeeper in a jury trial; (2) did not commit manifest error or abuse its discretion when it denied Scott’s motion to suppress his written confession; (3) did not commit manifest error or abuse its discretion when it denied Scott’s motion to dismiss for failure to provide him a speedy trial; (4) did not commit manifest error or abuse its discretion in failing to grant a mistrial based on allowing the State’s closing argument; and (5) Scott did not receive ineffective assistance of counsel in violation of his Sixth Amendment rights.

¶ 5. We reverse and vacate the Court of Appeals’ judgment. We affirm and reinstate the jury verdict and the sentence of life imprisonment without parole.

STATEMENT OF FACTS

¶ 6. On July 9, 2002, while working at the Cash Depot in Jackson, Dinkins was shot in the head during an armed robbery; she was found dead, kneeling in front of an empty safe that previously had contained $2,200. After an investigation which revealed Scott to be a possible suspect, an ex-girlfriend of Scott’s told the Jackson Police Department Scott was in Marietta, Georgia. The JPD notified the Marietta police of an outstanding warrant, and the Marietta police took Scott into custody.

¶ 7. When the JPD arrived, Scott was given his Miranda warnings, and allegedly signed a waiver, which he later denied at trial. Scott confessed to the armed robbery and murder in the presence of two officers, then signed and initialed the typed confession. At trial, Scott, who testified in his own defense, admitted he had signed a confession. Scott admitted he had signed some portions of the confession presented in court, but he alleged that he did not sign some of the confession. Both officers who took his confession testified at trial and were subject to cross-examination.

¶ 8. At the heart of this appeal is an ex parte conference (which was sealed under the court’s order) in which Scott’s counsel revealed a serious conflict brought about by his client’s confession to the murder, insistence on taking the stand to offer perjured testimony, and insistence on attempting to find alibi witnesses who would likewise commit perjury. The record reveals that Scott’s counsel tried to reason with Scott to prevent him from providing perjured testimony, to no avail. Scott attempted to have new counsel appointed on several occasions as well.

¶ 9. At that point, Scott’s counsel attempted to withdraw from the case, which the trial court did not allow. Then, Scott’s counsel, without initially revealing the content of the conflict, explained to the judge in an ex parte hearing that he found himself in an ethical dilemma that could cost him his license to practice law. The trial judge inquired further in order to make her ruling. At that time, Scott’s counsel revealed to the trial judge that Scott had confessed to him that he had committed the crime and was intent on falsely testifying. Scott’s attorney explained he had not been able to dissuade Scott from offering perjured testimony.

¶ 10. The trial judge held that Scott would be allowed to provide narrative testimony and would be subject to cross-examination, consistent with Mississippi Rule of Professional Conduct 3.3 and its comments. The comment to Rule 3.3 states, “an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence.” See Rule 1.2(d). Miss. Rule of Profl Conduct 3.3 cmt. (as amended 2000).

¶ 11. Scott was tried and convicted of the capital murder of Dinkins by a jury and sentenced to life imprisonment without the possibility of parole.

¶ 12. The facts are set forth in detail in the Court of Appeals’ opinion, and under the standards of review required in this case, it is unnecessary to revisit every detail. However, in order to reach the issues, we will reiterate pertinent facts.

DISCUSSION

I. Whether the Trial Judge Erred in Failing to Recuse Herself after an Ex Parte Conference with Scott’s Attorney.

¶ 13. The standard of review to which this Court is bound on the issue of recusal is manifest error. Davis v. Neshoba County Gen. Hosp., 611 So.2d 904, 905 (Miss.1992) (e.g., Turner v. State, 573 So.2d 657, 677 (Miss.1990), Ruffin v. State, 481 So.2d 312, 317 (Miss.1985)). Further, impartiality is presumed, and the presumption must be overcome by the appellant in order for this Court to find manifest error. Jones v. State, 740 So.2d 904, 912 (Miss.1999). The question is whether or not “a reasonable person, with knowledge of all the circumstances, would harbor doubts about the judge’s impartiality.” Id. (citing Davis, 611 So.2d at 905, accord Miss. Const, art. VI, § 165 (1890)).

¶ 14. With regard to this case, Scott and the Court of Appeals misplace their focus on what Scott’s counsel told the judge in the ex parte hearing. The confession that Scott’s counsel revealed to the trial judge, after every other remedy had been exhausted, was entirely consistent with the corroborating evidence, including the written confession that had been obtained when Scott was arrested in Marietta, the proposed testimony of the two officers who had obtained an earlier written confession, and all of the other evidence collected in this case.

¶ 15. In support of its holding, the Court of Appeals cites cases involving bench trials. In addition, the Court of Appeals’ majority has bolstered its ruling with authority that carries no precedent in this jurisdiction. (E.g., Lowery v. Cardwell, 575 F.2d 727 (9th Cir.1978), Butler v. United States, 414 A.2d 844 (D.C.1980)). Not a single case cited by the Court of Appeals in support of its ruling involved a jury trial. As such, the facts herein are inapposite to those upon which the Court of Appeals seeks to rest its holding. This was not a bench trial; it was a jury trial. The trial judge applied the proper legal standard to admit the written confession and allowed the jury to weigh the evidence before it. The judge did not need to re-cuse herself and made no determination as to the truth or falsity of the confession, merely that it met the standard required for admission, that of being voluntary, intelligent, and knowing. Martin v. State, 854 So.2d 1004, 1007 (Miss.2003).

¶ 16. The Court of Appeals suggests that the trial judge was so persuaded by the attorney’s revelation as to make the trial judge certain that Scott was guilty, which resulted in unfair prejudice at trial. If this contention was valid, the existence of a written confession would likewise be prone to persuade any trial judge that a defendant was guilty. This Court entrusts our judges with great discretion. Our trial judges are confronted daily with evidence that would tend to make defendants appear more culpable than not. We presume that our trial judges are aptly equipped to handle these issues and apply the law without fear of undue prejudice. See, e.g., Turner, 573 So.2d at 678 (Miss.1990). We have stated repeatedly that we will not overrule a trial judge’s denial to recuse herself unless we find manifest error.

¶ 17. Our holding in Farmer v. State is illustrative. In Farmer, this Court held that a trial judge need not recuse himself because he had been the trial judge when a defendant previously had pleaded guilty. Farmer v. State, 770 So.2d 953, 956-57 (Miss.2000). “It is not unusual for a judge to sit on successive trials following mistrials or to hear on remand a case where he previously has heard and ruled on the evidence....” Id. at 957 (quoting Garrison v. State, 726 So.2d 1144, 1151 (Miss.1998)).

¶ 18. Additionally, Scott places great emphasis on the alleged violation of the attorney-client privilege. Our law states that an attempt to utilize an attorney’s service in furtherance of a crime, such as perjury, “forfeits the protection of this rule.” In Re Rules of Prof'l Conduct, 2005 Miss. LEXIS 723, *21 (Miss. Nov. 3, 2005). Scott’s attorney did inform the trial judge that his client had confessed to the crime and intended to perjure himself. However, this revelation was unknown to the jury, and the trial transcript is devoid of anything that would indicate that either the judge or Scott, through his counsel, was prejudiced by this event.

¶ 19. The judge, while properly acting as gatekeeper, was the trier of fact as to admissibility of the evidence; however, the trial judge was not the ultimate trier of fact. The jury rendered the verdict based on substantial evidence, including Scott’s testimony. The presumption of impartiality remains with nothing to rebut it. The standard of manifest error is not met, and there is no showing that the trial judge’s failure to recuse herself had any effect on the jury’s deliberations or verdict, as the jury was completely unaware of Scott’s verbal confession and the ex parte hearing.

¶ 20. As the Court of Appeals’ dissent cogently points out, had the trial judge recused herself, any judge who would have presided over the case would have read the record, discovered the ex parte hearing proceedings, and thus would have been placed in exactly the same position as the original trial judge. Scott, 8 So.3d at 898 (Roberts, J., dissenting).

¶ 21. Nothing in the trial transcript indicates that anything was ever said or even intimated about the alleged confession to Scott’s own attorney or about Scott’s attorney’s misgivings about suborning perjury. Neither was there any showing that the judge in any way treated Scott in a prejudicial manner. Scott took the stand on his own behalf, and the jury had an opportunity to determine for itself whether or not Scott’s written confession and testimony were genuine and credible. The jury never heard about the verbal confession to Scott’s attorney. Therefore, the claim of manifest error by the trial judge for failing to recuse herself must fail. This Court reverses the Court of Appeals’ judgment and reinstates the trial judge’s refusal to recuse herself as within her just discretion.

II. Whether the Trial Judge Erred in Denying Scptt’s Motion to Suppress His Written Confession.

¶ 22. This Court can reverse a trial court’s denial of a motion to suppress only: if the incorrect legal principle was applied; if there was no substantial evidence to support a voluntary, knowing, and intelligent waiver of Miranda rights; and if the denial was a result of manifest error. Chim v. State, 972 So.2d 601, 604-05 (Miss.2008). The standard of manifest error is high, and this Court cannot reverse unless the trial judge’s ruling has gone against the substantial weight of the evidence. Id. at 605.

¶ 23. The trial judge must determine beyond a reasonable doubt that a confession was voluntary and knowing and that the defendant was given his Miranda rights prior to any custodial interrogation. Armstead v. State, 978 So.2d 642, 646 (Miss.2008). Here, a signed Miranda waiver and a signed and initialed confession were admitted into evidence. In addition, the officers who Mirandized Scott and took his confession were available to (and ultimately did) testify.

¶ 24. The burden lies with the State to prove that a confession is voluntary. Agee v. State, 185 So.2d 671, 673 (Miss.1966). However, this Court has held that the “burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward.” Bell v. State, 963 So.2d 1124, 1134 (Miss.2007) (citing Morgan v. State, 681 So.2d 82, 89 (Miss.1996) (further citing Agee, 185 So.2d at 673)). “This makes out a prima facie case for the State on the question of volun-tariness.” Id. The accused is entitled to offer testimony to the contrary, at which point the State must offer the testimony of the officers who witnessed the confession. Id.

¶ 25. The record shows that the officers were available to testify, which left the decision of whether the confession was voluntary to the trial judge’s discretion. This Court consistently has held that it “will not reverse [the] trial court on conflicting testimony as to whether coercion [was] used to obtain [a] confession.” Bell, 963 So.2d at 1134 (citing Veal v. State, 585 So.2d 693, 697 (Miss.1991)).

¶ 26. The trial judge allowed the written confession into evidence, which we hold to be within her discretion and substantiated by sufficient evidence in the record. The signed Miranda waiver is evidence of a knowing and voluntary confession. See Martin, 854 So.2d at 1007 (Miss. 2003). The judge must consider the totality of the circumstances to determine if a defendant intelligently, knowingly, and voluntarily waived his Miranda rights. Id.

¶ 27. Here, the trial judge inquired as to whether Scott had been aware of his Miranda rights when he was taken into custody. Scott acknowledged that he was aware of them. The judge further inquired as to Scott’s intelligence, his ability to read and write, his education, his mental state at the time of the waiver and confession, whether he had slept prior to the confession, and whether he was under the influence of alcohol or drugs. Scott’s answers to the judge’s questions support the trial judge’s finding that the confession was knowing, intelligent, and voluntary.

¶ 28. The record indicates that Scott had attended at least one year of college, which reflects at least an average level of intellect, and that Scott had been convicted of conspiracy to embezzle, which resulted in some familiarity with the criminal justice system. Scott said he was not under the influence of drugs or alcohol; he was not physically threatened or coerced; he knew his Miranda rights; and he was aware he had the right to remain silent or have counsel appointed prior to his confession. All of these factors indicate a person who was aware of his rights and the nature of the charges against him. Martin v. State, 871 So.2d 693, 701 (Miss.2004) (citing Neal v. State, 451 So.2d 743, 755 (Miss.1984)).

f 29. Scott has alleged that the officers showed him a photograph of a lethal-injection gurney in an effort to get him to cooperate. The police officers deny this allegation. However, even if this allegation is true, the totality of the circumstances weighs heavily against Scott and toward admission of the confession for the jury to weigh.

¶ 30. All of this evidence indicates that the trial judge undertook a thorough examination of the totality of the circumstances to determine whether the confession was voluntary, intelligent, and knowing. Scott was free to attempt to impeach the confession to the satisfaction of the jury.

¶ 31. This Court has held that, even if a confession is in violation of a defendant’s Fifth or Sixth Amendment rights, (which we do not so hold herein) that confession may be used for impeachment purposes. Sipp v. State, 936 So.2d 326, 331 (Miss.2006). Further, this Court has stated that “when a defendant takes the stand and testifies, he may be impeached by his own statements — even if those statements were taken in violation of his Miranda rights.” Id. (citing Bogard v. State, 624 So.2d 1313, 1318-19 (Miss.1993)).

¶ 32. In order for this Court to reverse the trial court’s denial of the motion to suppress, there must be a lack of credible or substantial evidence to support the denial. Because we find the admission to be based on the appropriate principles of law and to be well-supported in the record, we cannot reverse. Armstead, 978 So.2d at 646 citing Chim, 972 at 604 (further citing Holland v. State, 587 So.2d 848, 860 (Miss.1991)).

¶ 33. Here, this Court finds the signed Miranda waiver, the signed and initialed written confession, and the availability of the police officers who took the confession all support allowing the confession into evidence for the jury to weigh as the ultimate trier of fact. Since the evidence supports the trial judge’s denial to suppress the confession, an appellate court cannot reverse. We, therefore, reverse the Court of Appeals and reinstate the trial judge’s ruling that the confession met the legal standard required of it for admission.

III. Whether the Trial Court Erred in Denying a Motion to Dismiss for Failure to Grant a Speedy Trial.

¶ 34. We review denial of a motion to dismiss for failure to grant a speedy trial under an abuse-of-discretion standard. Hersick v. State, 904 So.2d 116, 126 (Miss.2004).

¶ 35. Our state law provides defendants with a right to a speedy trial under Mississippi Code Annotated Section 99-17-1 (Rev.2007). The statute reads:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictment has been presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

Miss.Code Ann. § 99-17-1 (Rev.2007).

¶ 36. Scott filed three motions for continuance to delay his trial, which is directly contrary to his assertion that he requested, and was denied, a speedy trial. In addition, Scott sought to dismiss his counsel on several occasions and filed several motions pro se. Much like the defendant in Guice v. State, Scott appears to be aggrieved, not because he was denied a speedy trial, but rather because he was denied a dismissal for lack of a speedy trial. Guice v. State, 952 So.2d 129, 139 (Miss.2007). Just as this Court found in Guice, defendant’s requests for continuance and his filing of motions must be considered when applying the balancing test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

¶ 37. Under Barker, four factors must be considered to determine whether or not a violation of a defendant’s Sixth Amendment rights has occurred and whether a defendant has been denied a speedy trial as guaranteed under the United States Constitution. This Court must consider the length of the delay, the reason for the delay, the defendant’s assertion of his rights, and whether the defendant has been prejudiced by the delay. Barker, 407 U.S. at 530, 92 S.Ct. 2182.

¶ 38. Applying the law to the facts in this case, the length of the delay does exceed the 270-day benchmark set forth by the Mississippi Legislature. Miss.Code Ann. § 99-17-1 (Rev.2007). However, the delay is largely attributable to Scott and somewhat attributable to a crowded docket. See Manix v. State, 895 So.2d 167 (Miss.2005) (holding that a speedy trial had not been denied due to a backlog in the crime lab and the failure of the defendant to provide an address for an exculpatory witness).

¶ 39. Scott cannot be considered to have asserted his right to a speedy trial when he was asking for continuances to delay his trial on the same day he was requesting a dismissal for failure to provide a speedy trial. Additionally, there is no evidence that Scott was in any way prejudiced by any delay. As we set forth in Guice, a delay is not per se evidence of prejudice to the defendant. Guice, 952 So.2d at 139 (citing Barker, 407 U.S. at 521, 92 S.Ct. 2182).

¶ 40. Contrary to the Court of Appeals’ ruling that not enough evidence is present to determine whether Scott was afforded a speedy trial, we find sufficient evidence to meet the standard set forth in Barker to weigh in the State’s favor. We reverse the Court of Appeals and vacate its judgment granting a new evidentiary hearing.

IV. Whether the State’s Closing Argument Constituted Reversible Error.

¶ 41. This Court reviews denials of a motion for mistrial based on prosecutorial misconduct during closing arguments under an abuse-of-discretion standard. Flora v. State, 925 So.2d 797, 804 (Miss.2006) (citing Spann v. State, 771 So.2d 883, 889 (Miss.2000)). The defense failed to object to the closing argument, which bars this issue. See Ross v. State, 954 So.2d 968, 987 (Miss.2007).

¶42. In spite of the procedural bar, the comments made by the prosecutor that Scott was a shyster and a con artist are substantiated by Scott’s own testimony. Scott testified that he had been convicted of theft and conspiracy to embezzle; Scott admitted he had used a stolen ATM card, had altered a social security card to change the numbers, and had a stolen license plate on his car to avoid being arrested. Scott, 8 So.3d at 900. We agree with the Court of Appeals. This issue is without merit. The prosecutor’s comments were reasonable inferences drawn from the defendant’s own testimony. The closing arguments were within the standards set forth by this Court, and we find no error that would afford Scott a mistrial for prosecutorial misconduct during its closing argument.

V. Whether Scott Received Ineffective Assistance of Counsel under the Sixth Amendment.

¶43. The Court of Appeals held that this issue would be better brought by motion for post-conviction relief. We have held that it is “unusual for this Court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal.” Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). This Court previously has held that when an ineffective-assistance-of-counsel claim cannot be supported, this Court will refrain from granting relief and preserve the issue for post-conviction relief. Id. (citing Read v. State, 436 So.2d 832, 837 (Miss.1987)).

¶44. However, in Hodges, this Court has clarified when an issue may be brought on direct appeal, referring to our revision to Rule 22 of the Mississippi Rules of Appellate Procedure. Hodges v. State, 949 So.2d 706, 713 (Miss.2006) (citing Miss. R.App. P. 22). “‘[I]ssues which may be raised in post-conviction proceedings may also be raised on direct appeal’ if such issues are based on facts fully apparent from the record. M.R.A.P. 22[ (b) ].” Id. (emphasis in original). Id. Because this issue has been brought to us by Scott on grounds that could have been decided by the trial court, this Court has the power to determine whether or not Scott received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 45. While we have held it to be a rare case in which this Court will rule on ineffective-assistance-of-counsel claims on direct appeal, here we see no evidence in the record to support a viable claim for ineffective assistance of counsel that would meet the two-prong test set forth in Strickland, 466 U.S. at 668, 104 S.Ct. 2052.

¶ 46. Under Strickland in order to find ineffective assistance of counsel, this Court must find that “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. In other words, counsel’s performance must have been so deficient that there would have been a different verdict were it not for that deficiency. Givens v. State, 967 So.2d 1, 9-10 (Miss.2007).

¶ 47. Scott claims ineffective assistance of counsel based on false arrest, failure to interview alibi witnesses, failure to view alleged evidence, and failure to object to the prosecutor’s closing argument. Each of these issues can be addressed on direct appeal, because each of these claims of error could have been decided by the trial court.

There is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will we find that counsel’s performance was deficient.

Id. at 5 citing Walker v. State, 863 So.2d 1, 22 (Miss.2003) (further citing Russell v. State, 849 So.2d 95, 122 (Miss.2003) (quoting Holly v. State, 716 So.2d 979, 989 (Miss.1998))).

¶ 48. The record indicates that Scott was arrested in Marietta, Georgia, under an outstanding warrant for his arrest, which warrant was never disputed. Scott’s counsel delineated the effort made to locate the purported alibi witnesses provided by Scott, witnesses who never could be located. In addition, Scott’s roommate did not corroborate Scott’s contention that he was asleep at home. Whether or not Scott’s counsel viewed a videotape of an individual purchasing cigarettes from a convenience store after the murder and armed robbery is a question of strategy left to Scott’s counsel. Cole v. State, 666 So.2d 767, 777 (Miss.1995) (citing Murray v. Maggio, 736 F.2d 279 (5th Cir.1984) (holding that counsel may choose whether or not to file motions, interview witnesses, or make objections as a part of their trial strategy)).

¶ 49. Finally, Scott claims error for his counsel’s failure to object to the prosecutor’s comments that Scott was a con man and a shyster. All of these issues fall squarely within the purview of trial strategy and unless clearly deficient, the burden is not met. Id.

¶ 50. We hold that the prosecutor’s comments were entirely acceptable given Scott’s testimony that confirmed he had been convicted of theft and conspiracy to embezzle, among other crimes. Therefore, we find nothing in the record to support a claim for ineffective assistance of counsel on any ground brought by Scott.

¶ 51. Although we need not address whether the outcome would have been different, since the first prong of Strickland has not been met, this Court notes ample evidence was available to the jury to supports its guilty verdict. This Court reverses and vacates the Court of Appeals’ judgment and affirms and reinstates the jury verdict.

CONCLUSION

¶ 52. Having considered all of the issues addressed by the Court of Appeals, this Court reverses and vacates the Court of Appeals’ opinion. We reinstate the guilty verdict rendered by the jury in the Hinds County Circuit Court and the sentence of life in prison without the possibility of parole.

¶ 53. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REINSTATED AND 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.

WALLER, P.J., EASLEY, CARLSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES AND DICKINSON, JJ., CONCUR IN RESULT ONLY. DIAZ, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969).


author: ANN H. LAMAR, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE, Appellant, v. County Court Judge William AGIN, Appellee.
    No. 2009-JP-00082-SCT.
    Supreme Court of Mississippi.
    May 1, 2009.
   ORDER

ANN H. LAMAR, Justice,

for the Court.

¶ 1. This matter came before the Court, en banc, on the Commission’s Supplementation for the Record and Recommendation to Dismiss the Commission’s Petition for Interim Suspension. After due consideration, the Court finds the recommendation to dismiss Petition is well taken and should be granted.

■ ¶2. IT IS THEREFORE ORDERED that the Petition for Interim Suspension of County Court Judge William Agin is hereby dismissed.

¶ S. SO ORDERED.