text:
    STATE of Louisiana, Appellee, v. Randy C. MARSHALL, Appellant.
    No. 44,121-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Louisiana Appellate Project by Edward K. Bauman, for Appellant.
    Paul J. Carmouche, District Attorney, Dhu Thompson, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before PEATROSS, MOORE & LOLLEY, JJ.
   PEATROSS, J.

| defendant, Randy C. Marshall, was convicted of second degree murder in violation of La. R.S. 14:30.1 and sentenced to a term of life imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence. Defendant now appeals. For the reasons stated herein, the conviction and sentence of Defendant are affirmed.

FACTS

On April 6, 2005, Defendant and his friend and high school classmate at the time, Cordero Campbell, discussed a plan to rob a man who they believed had money. Defendant then contacted another friend, Renando Johnson, and asked him to help with the robbery. Defendant and Campbell skipped school that afternoon and waited at a local supermarket for Johnson to pick them up. Johnson arrived in a Crown Victoria and the trio drove to the man’s house to observe him prior to the intended robbery. While the trio waited in the car, Johnson gave Defendant and Campbell a .38-caliber revolver and a 380 semi-automatic handgun to use during the robbery.

A little while later, the man left his home and went to Moham’s Tire Shop and the trio followed him. Defendant, Campbell and Johnson developed a plan whereby Defendant and Campbell would attempt to enter the tire shop under the ruse of getting an inner tube fixed. Once inside, they would demand that everyone get down on the floor so they could determine where the man they had followed to the shop was hiding the money. The plan failed, however, and Defendant and Campbell were not able to gain entry into the shop. Accordingly, Defendant and Campbell revised their plan and | .¿decided to simply force their way into the shop and rob anyone who happened to be inside.

Meanwhile, inside of the shop, Hoyle Moham, Santanion Dixon, Willie Pryor, Curtis Lewis, Charlie Lewis, Fred Jefferson, Milton Jackson and Benner Washington were playing a game of dominoes. Moham and Jackson, the two men who initially refused to allow Defendant and Campbell to enter the shop, were standing in the garage door of the shop when Defendant and Campbell entered the garage area. Defendant and Campbell held Mo-ham and Jackson at gunpoint and Campbell told them that they were being robbed and demanded to be led into the shop. Once inside the shop, Campbell demanded that the men get down on the floor and place all the money they had on the floor beside them.

While Campbell was recovering the money placed on the floor and Defendant was standing by in the rear area of the building, Charlie Lewis (“Charlie”) stabbed Defendant in his ankle and his side. Defendant then shot Charlie five times with the .38-caliber revolver: once in the chest, shoulder and arm and twice in the back. Defendant and Campbell then exited the shop through the back door of the building. After Defendant and Campbell had left the shop, the men inside called the police and an ambulance. When paramedics arrived at the crime scene, Charlie was nonresponsive and later died at the hospital as the result of multiple gunshot wounds. The police recovered a little over $200 from Charlie’s pocket.

During this time, Johnson drove Defendant and Campbell to a local park where Campbell split the money from the robbery with Defendant, but|sJohnson did not receive a share of the money. Campbell gave his handgun to Johnson, but kept Defendant’s handgun since Johnson refused to take it because the gun had been involved in a murder.

Campbell put Defendant’s handgun in a trash can in the park and then called the police and the paramedics. In order to get medical treatment for Defendant’s stab wounds, Campbell and Defendant told the police and paramedics that Defendant had been robbed in the park and that he was stabbed by the would-be robber after Defendant refused to give up his money. Defendant was transported to the hospital where he was treated. Campbell was not questioned by the officers regarding the fictitious park robbery story and went home. Campbell later returned to the park and retrieved the handgun. He attempted to sell the weapon, but was unsuccessful and hid it inside a shoe box in his home.

While canvassing the neighborhood of Moham’s Tire Shop after the robbery, police officers learned from witnesses that Defendant and Campbell fled the scene of the crime in the Crown Victoria driven by Johnson. Accordingly, the police questioned Johnson, who informed them of Campbell’s involvement. The police then questioned Campbell, who revealed Defendant’s involvement in the crime as well as the location of the handgun hidden in Campbell’s home. When the officers arrested Defendant at his home, Defendant told his father that he was being arrested because he had shot someone. Defendant also told the officers that the handgun was in the park trash can, but the gun was no longer there when the officers went to the park to retrieve it.

14Subsequent to his arrest, Defendant was questioned twice by police officers. During his first interrogation, after being informed of his rights, Defendant told officers that he shot Charlie in self-defense after Charlie had stabbed him for refusing to return Charlie’s money that he had won in a domino game. In his second interrogation, after being informed of his rights again, Defendant admitted that he and Campbell robbed the men in the tire shop while they were playing a game of dominos and that, during the robbery, Charlie stabbed Defendant who then shot Charlie “three or four” times. Police then placed Defendant into custody.

While in jail, Defendant and Campbell discussed a strategy to explain the shooting. Defendant wrote, and Campbell signed, an affidavit which stated that Charlie stabbed Defendant out of anger for winning his money in a dominos game and that Defendant only confessed to the shooting because he was forced to do so by the police. Defendant later revised the affidavit to state that Campbell had shot Charlie in defense of Defendant. None of the victims of the robbery could identify Defendant or Campbell in a photographic lineup.

On May 11, 2005, a bill of indictment was filed charging Defendant with the second degree murder of Charlie Lewis as defined by La. R.S. 14:30.1. During a hearing on the Motion to Suppress filed by then co-defendant Campbell, Defendant’s trial counsel attempted to suppress Defendant’s confession, arguing that there was no evidence in the record to ^explain why Defendant' changed his self-defense story in the first interrogation to a murder confession in the second interrogation. Defense counsel asserted that one or more of the officers must have employed improper interrogation tactics to coerce Defendant into confessing to the murder during the second interrogation. The trial court, however, denied Defendant’s request to suppress the confession, finding that there was no evidence in the record to suggest that anything improper took place during the interrogation of Defendant.

The State offered Defendant a plea agreement whereby he would serve a term of 32 years’ imprisonment if he pled guilty to manslaughter, but Defendant rejected the offer. After a bench trial, the court found Defendant guilty as charged of second degree murder. Defendant’s trial counsel filed a motion for new trial and a post-verdict judgment of acquittal, both of which were denied by the trial judge, who then ordered that Defendant serve the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. This appeal ensued.

DISCUSSION

Assignment of Eiror Number One (verbatim): The evidence introduced at trial was insufficient to find Randy Marshall guilty of second degree murder. Therefore, the trial court erred in denying his Motion for Directed Verdict, Motion of Judgment of Acquittal, Motion for New Trial and Motion for Post Verdict Judgment of Acquittal.

Pro se Assignment of Eiror Number One (verbatim): Insufficient Evidence. The appellant contends that his conviction should be reversed because the state failed to prove each and every element of the crime charged, specifically arguing that the state failed to prove the corpus delicti of felony-murder as the commission of armed robbery was never established. Appellant contends that, even with his statements, the state failed to establish his guilt beyond a reasonable doubt, as all evidence other than appellant’s 1 ^statements is circumstantial and the state failed to exclude every hypothesis of innocence.

The State supports the conviction, arguing that the evidence is sufficient to sustain the second degree murder conviction because it showed that (1) Charlie was killed during an armed robbery and (2) Defendant had the specific intent to kill or inflict great bodily harm, as evidenced by the fact that he shot Charlie five times. The State also contends that Defendant is precluded from claiming self-defense in this case because he was the aggressor as defined under La. R.S. 14:21.

Defendant asserts that the State did not prove that he committed the armed robbery of Charlie because the evidence does not show that Defendant took or attempted to take anything of value from Charlie. Defendant further asserts that the evidence proves that Defendant was attempting to leave the shop when Charlie stabbed him and that he shot Charlie in a reaction of self-defense to the stabbing.

In his pro se brief, Defendant argues that the evidence is insufficient to support his second degree murder conviction because it shows that Campbell was the one who ordered the victims to the floor during the robbery and to give up their money, and it was Campbell who took them money. Defendant also points out that nothing of value was taken from Charlie.

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03),7 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020. 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, 05-0477 (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 the fact finder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Jackson v. Virginia, supra. 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. Id. When the 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 the 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, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896; State v. Owens, 30,903 (La.App.2d8 Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

An accomplice is a competent witness to testify against his co-perpetrator even if the prosecution offers him inducements to testify. State v. Jetton, 32,-893 (La.App.2d Cir.4/5/00), 756 So.2d 1206, writ denied, 00-1568 (La.3/16/01), 787 So.2d 299. These inducements go to the weight of the witness’s credibility. Id. The assessment of the credibility of an accomplice’s testimony is a determination to be made by the trier of fact and, thus, not within the province of the court of appeal to decide. Id. The fact finder may accept or reject the testimony of any witness in whole or in part and the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

A witness’s failure to identify the suspect at a pretrial lineup does not constitute grounds to bar an in-court identification, but, rather, goes to the weight of that witness’s testimony; evidence may be introduced to explain any discrepancy. State v. Long, 408 So.2d 1221 (La.1982); State v. Ford, 26,422 (La.App.2d Cir.9/21/94), 643 So.2d 293; State v. Chism, 591 So.2d 383 (La.App. 2d Cir. 1991).

Second degree murder is defined as the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1. Evidence that a defendant shot the victim multiple times may be used to show that the defendant had the culpable state of mind to kill or | ¿inflict great bodily harm on the victim. State v. Vance, 544 So.2d 41 (La.App. 2d Cir.1989), writ denied, 551 So.2d 1317 (La.1989). Second degree murder is also defined as the killing of a human being when the offender was engaged in or was attempting to engage in armed robbery, even though he has no intent to kill or inflict great bodily harm. La. R.S. 14:30.1.

Armed robbery is the taking of anything of value belonging to another from the person of another by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64. The State may also prove that a defendant is guilty of armed robbery by showing that the defendant served as a principal to the crime. La. R.S. 14:24; State v. Durden, 36,842 (La.App.2d Cir.4/9/03), 842 So.2d 1244, writ denied, 03-1350 (La.11/26/03), 860 So.2d 1131; State v. Allen, 36,180 (La. App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566; 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004); State v. Smith, 513 So.2d 438 (La.App. 2d Cir.1987). Under this theory, the defendant need not actually take anything or have personally held a weapon to be guilty of armed robbery. State v. Durden, supra; State v. Allen, supra, citing State v. Dominick, 354 So.2d 1316 (La.1978). A person who aids and abets another in a crime by participating in the planning or execution of that crime is liable to the same extent as the person who directly commits the crime, although he may be convicted of a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Durden, supra; State v. Watson, 10397 So.2d 1337 (La.1981), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981).

Self-defense is justification for a killing only if the person who committed the homicide reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm and that his use of deadly force was necessary to save his life. La. R.S. 14:20(1); State v. Dooley, 38,763 (La.App.2d Cir.9/22/04), 882 So.2d 731, writ denied, 04-2645 (La.2/18/05), 896 So.2d 30; State v. Cotton, 25,940 (La.App.2d Cir.3/30/94), 634 So.2d 937.

When self-defense is raised as an issue by a defendant, the State has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State ex rel. D.P.B., 02-1742 (La.5/20/03), 846 So.2d 753; State v. Garner, 39,731 (La.App.2d Cir.9/8/05), 913 So.2d 874, writ denied, 05-2567 (La.5/26/06), 930 So.2d 19; State v. Gaddis, 36,661 (La.App.2d Cir.3/14/03), 839 So.2d 1258, writ denied, 03-1275 (La.5/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005). WOien the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

Evidence of a person’s character is generally inadmissible to prove that he acted in conformity therewith. La. C.E. art. 404(A). One exception to this eviden-tiary rule is where the defendant claims self-defense in a homicide case |nand at issue is the defendant’s state of mind and whether the deceased was the aggressor. In such a case, evidence of the victim’s dangerous character or threats against the accused is relevant because it tends to show that the victim was the aggressor and the defendant’s apprehension of danger was reasonable. State v. Edwards, 420 So.2d 663 (La.1982); State v. Washington, 30,043 (La.App.2d Cir.1/23/98), 706 So.2d 203; State v. Montz, 92-2073, (La. App. 4th Cir.2/11/94), 632 So.2d 822, writ denied, 94-0605 (La.6/3/94), 637 So.2d 499.

As a condition of admissibility, the defendant must produce evidence that, at the time of the incident, the victim made a hostile demonstration or committed an overt act against the defendant. The term “overt act” in this instance means any act of the victim which manifests to the mind of a reasonable person that the victim has the present intent to kill or to do great bodily harm. State v. Edwards, supra; State v. Lee, 331 So.2d 455 (La.1975); State v. Carter, 550 So.2d 805 (La.App. 2d Cir.1989); State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). The overt act must be directed at the accused. State v. Jones, 451 So.2d 1181 (La.App. 1st Cir. 1984).

Once appreciable evidence of an overt act or hostile demonstration is established, evidence of threats and of the victim’s dangerous character are admissible for two purposes: (1) to show the defendant’s reasonable apprehension of danger which would justify his conduct and (2) to help determine who was the aggressor in the conflict. State v. Edwards, supra; State v. Hardeman, supra. Under the “aggressor doctrine” as outlined in La. |12R.S. 14:21, a person who is the aggressor cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knew or should have known of his desire to withdraw and discontinue the conflict.

We find that the evidence in the case sub judice is sufficient to support Defendant’s second degree murder conviction. Defendant admitted that he shot Charlie and forensic pathologist, Dr. James Tray-lor, Jr., testified that two bullets from a .38-caliber handgun were found in the body of Charlie. Additionally, Richard Beighley, a firearms specialist with the North Louisiana Crime Lab, testified that the bullets found in Charlie and at the crime scene matched the .38-caliber handgun used by Defendant in the robbery. Further, the evidence showing that Defendant shot Charlie five times indicates that Defendant had the specific intent to kill or inflict great bodily harm. See State v. Vance, supra.

Additionally, had the State failed to prove Defendant’s specific intent to commit second degree murder, the evidence was sufficient to support Defendant’s second degree murder conviction under La. R.S. 14:30.1 because Defendant was engaged in an armed robbery at the time Charlie was killed. Moham, Dixon, Pryor and Campbell each testified that Defendant and Campbell entered the tire shop armed with handguns, that Campbell demanded money from the men inside the shop and that, once they were provided with the money, Defendant and Campbell left the shop. Although Campbell and Pryor testified that Defendant never spoke or made a verbal threat during the robbery, the evidence indicates that Defendant participated |13in the planning and execution of the robbery. Defendant, therefore, is considered a principal to the armed robbery and, thus, subject to conviction for the crime. See State v. Durden, supra; State v. Allen, supra.

Defendant argues that an armed robbery was not committed against Charlie because approximately $200 was later recovered from Charlie’s body. We do not agree. Defendant’s own statements and the testimony of Campbell and several witnesses to the incident indicated that Charlie was in the shop at the time of the armed robbery. Furthermore, Campbell explained at trial that he and Defendant decided not to rob Charlie after Defendant shot Charlie. An attempt to commit armed robbery, however, is also an element of second degree murder. La. R.S. 14:30.1. Additionally, although Defendant argues that he was acting in self-defense when he shot Charlie, he is precluded from doing so under the aggressor doctrine because Defendant started the conflict, ie., the armed robbery,' that prompted Charlie to stab him.

This assignment is, therefore, without merit.

Assignment of Error Number Two (verbatim): The trial court erred in admitting the autopsy report into evidence in this case and in allowing the expert opinion of Dr. Traylor, based on this report. In addition, Randy Marshall received ineffective assistance of counsel when his trial counsel failed to object to Dr. Traylor’s testimony and when he also failed to spe-cifícally question the custodian of the record about the evidence of wrongdoings involving the author of the report, Dr. McCormick.

Pro se Assignment of Error Number Two (verbatim): Ineffective assistance of counsel. The appellant argues that his trial counsel’s performance deprived him of the effective assistance of counsel, as mandated by the 6th amendment to the U.S. Constitution.

Defendant argues that the trial court improperly admitted into evidence a draft autopsy report written by Caddo Parish Coroner Dr. George M. McCormick. It is Defendant’s position that, since Dr. McCormick died 114before finalizing the report and before trial began, he was denied his right to cross-examine Dr. McCormick in order to contest the conclusions made in the report. The State argues that the coroner’s report is excepted from the hearsay rule under La. C. Cr. P. art. 105; and, thus, Defendant’s right to cross-examination was not infringed upon. Additionally, the State points out that Defendant has not shown that he was prejudiced by the admission of the coroner’s draft report.

Charlie’s certificate of death was signed by Dr. McCormick on April 28, 2005, and the cause of death listed on the certificate was multiple gunshot wounds. Dr. McCormick died in September 2005 before he had completed a final autopsy report of Charlie. After Dr. McCormick’s death, an unsigned draft autopsy report of Charlie containing markups from unknown persons was located.

At trial, forensic pathologist Dr. Traylor testified as to Charlie’s cause of death. Dr. Traylor was asked to review the draft autopsy report to determine the accuracy of the findings contained therein by comparing the draft report with photos of Charlie taken before the autopsy. Dr. Traylor noticed an inaccuracy in the draft autopsy report with regard to whether certain wounds were entry or exit wounds, but he conceded that any well-trained pathologist would have caught the mistake before the publication of the final autopsy report. Dr. Traylor concluded that Charlie’s cause of death was exsanguination caused by multiple gunshot wounds.

Defendant raised several objections to the admission into evidence of Dr. Tray-lor’s testimony and the draft autopsy report. Defendant argued that | <fithe draft autopsy report was inadmissible because there were no witnesses to testify as to the veracity of the report. The State countered that the draft autopsy report was properly admissible because it was relied upon by Dr. Traylor to determine Charlie’s cause of death. The trial court overruled Defendant’s objection, stating that it would defer to Dr. Traylor’s expertise to determine if the findings contained in the draft autopsy report were reliable.

The coroner’s report and the report of an autopsy are used to prove the death and cause of death. La. C. Cr. P. art. 105. A defendant’s right to confront his witnesses is not violated when a coroner’s report is admitted without the testimony of the coroner as to the authenticity of the report and when the report is cumulative • evidence as to death and cause of death. State v. Russell, 42,479 (La.App.2d Cir.9/26/07), 966 So.2d 154, writ denied, 07-2069 (La.3/7/08), 977 So.2d 897.

La. C.E. art. 703 addresses the facts and data upon which an expert can base his expert testimony. Article 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

In State v. Beaner, 42,532 (La.App.2d Cir.12/5/07), 974 So.2d 667, writ denied, 08-0061 (La.5/30/08), 983 So.2d 896, this court developed an approach in addressing issues involving the practices of the Caddo Parish Coroner’s Office under Dr. McCormick prior to his death. The Beaner court determined that the admissibility of evidence from the coroner’s office would be viewed in light of admissions made by the defendant, testimony of other [ 1(iwitnesses and whether the evidence in the coroner’s report was dispositive of the question of the defendant’s guilt or innocence.

In accordance with La. C.E. art. 703, it is permissible for Dr. Traylor to use as a basis for his expert testimony the facts and data contained in the draft autopsy report to determine Charlie’s cause of death. Given the overwhelming evidence in this case as to Charlie’s cause of death, the admission of the coroner’s draft report would not have changed Defendant’s guilty verdict at a second trial. Defendant admitted that he shot Charlie and all witnesses to Charlie’s murder testified that Defendant shot Charlie.

Additionally, Defendant argues in this pro se assignment of error that, if this court finds that Defendant’s trial counsel did not make the requisite objections at trial to preserve all issues involving the wrongdoings of Dr. McCormick, then his trial counsel rendered ineffective assistance at trial. Defendant argues in his pro se brief that his trial counsel was ineffective because he did not argue Defendant’s allegation that it was Campbell who shot Charlie. The State argues, however, that Defendant’s trial counsel made the requisite objections at trial.

Generally, a claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief (“PCR”) in the trial court. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930; a motion for new trial is also an acceptable vehicle by which to raise such a claim. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325. l^When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffective assistance of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. Strickland v. Washington, supra. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Id,.

The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. Id. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming that he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir. 1991); see also State v. %65 18Tilmon, 38,003 (La.App.2d Cir.4/14/04), 870 So.2d 607, writ denied, 04-2011 (La.12/17/04), 888 So.2d 866.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. Strickland v. Washington, supra. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial, ie., a trial whose result is reliable. Id. The defendant must prove actual prejudice before relief will be granted. Id. He must show that, but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; •general statements and conclusory charges will not suffice. Strickland v. Washington, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.

We find that Defendant’s trial counsel properly preserved all issues concerning the practices of Dr. McCormick by contemporaneously objecting at trial prior to the testimony of Dr. Traylor. The evidence further shows that trial counsel’s performance was not deficient. Trial counsel’s decision not to argue Defendant’s allegation that Campbell shot Charlie was a reasonable trial strategy given the evidence produced at trial indicating that it was not Campbell who shot Charlie, including Defendant’s confession, Defendant’s scheme to amend the affidavit and all eyewitness testimony to the murder.

ImThis assignment of error is without merit.

Assignment of Error Number Three (verbatim): The trial court erred in denying Randy Marshall’s Motion to Suppress based on the unexplained lapse of time between the two confessions.

Defendant argues that his confession should have been suppressed because the State had no explanation for the hour-and-a-half time lapse between the Defendant’s first and second interrogations. The State argues that Defendant made no specific factual allegations as to tactics employed during Defendant’s interrogations to convince him to confess to Charlie’s murder during the second interview. The State further argues that, under State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, cert denied, — U.S. -, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007), a lengthy delay in interviewing Defendant does not serve to vitiate his consent.

Before the State may introduce a confession into evidence, it must demonstrate that the statement was free and voluntary and not the product of fear, duress, intimidation, menace, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Simmons, 443 So.2d 512 (La.1983). If a statement is a product of custodial interrogation, the State must also show that the person was advised of his Miranda rights prior to the questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When claims of police misconduct are raised, the State must specifically rebut the allegations. State v. Vessell, 450 So.2d 938 (La.1984).

A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless not supported by the evidence. State v. Benoit, 440 So.2d 129 (La.1983); State v. English, 20582 So.2d 1358 (La.App. 2d Cir.1991), writ denied, 584 So.2d 1172 (La.1991). Credibility determinations lie within the sound discretion of the trial court and its rulings will not be disturbed unless clearly contrary to the evidence. State v. Vessell, supra. When deciding whether a statement is knowing and voluntary, a court should consider the totality of circumstances under which the statement was made. State v. Lavalais, 95-0320 (La.11/25/96), 685 So.2d 1048, cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997); State v. Lewis, 539 So.2d 1199 (La.1989); State v. Thomas, 461 So.2d 1253 (La.App. 1st Cir.1984), writ denied, 464 So.2d 1375 (La.1985). Inducements are to be viewed as merely one factor in the analysis. Id. Defendant has failed to make any specific allegations that his confession was improperly obtained. Although Defendant expressed concerns about the delay between the interviews, he never argued that any improper police conduct occurred. Additionally, the record clearly reflects that Defendant was informed of his rights prior to both police interviews. Since Defendant failed to raise specific allegations that would warrant relief, we find that the trial court did not abuse its discretion in denying Defendant’s request for suppression.

This assignment of error is, therefore, without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Randy C. Marshall, are affirmed.

AFFIRMED.

      . During the police investigation, Defendant referred to the man as "this guy,” and the identity of the man is not revealed in the record.

      . Defendant never filed a formal motion to suppress in this case. Defendant’s trial counsel made his argument for the suppression of Defendant’s confession by adopting the argument at the suppression hearing of then co-defendant Campbell.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    John POULLARD, Plaintiff-Appellant, v. M. PITTMAN, M.D. and LSU Medical Center—E.A. Conway Medical Center, Defendants-Appellees.
    No. 44,110-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      John Poullard, pro se.
    Julie Lafargue, Shreveport, for Appel-lees.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   PEATROSS, J.

Lin this medical malpractice case, the trial court granted summary judgment in favor of Defendants, M. Pittman, M.D. and LSU Medical Center — E.A. Conway Medical Center (collectively referred to as Defendants). The trial court found that Plaintiff, John Poullard, failed to come forward with any evidence establishing the standard of care applicable to Defendants, a breach of that standard or a causal connection between the alleged breach and his injuries. Mr. Poullard then appealed the dismissal of his claims against Defendants. For the reasons stated herein, we affirm.

FACTS

Mr. Poullard, an inmate at David Wade Correctional Center (“DWCC”), was seen by a staff physician after complaints of hemorrhoids, blood in his stools and stomach pain. After a preliminary examination, the DWCC staff physician referred Mr. Poullard to the E.A. Conway Prison Surgery Clinic where Mr. Poullard further complained of abdominal pain, prostate pain, burning in the groin and passing blood and mucus in his bowel movements. On January 24, 2003, Mr. Poullard received a physical examination at the surgery clinic which showed normal results without abnormalities of the abdomen, groin or genitalia.

An esophagogastroduodenoscopy/colo-noscopy (“EGD/colonoscopy”) was scheduled, however, in an effort to diagnose Mr. Poullard’s unexplained complaints of abdominal pain. On January 26, 2003, the EGD/colonoscopy was performed, which rendered normal results with the exception of minor gastritis. Two biopsies were taken of the stomach and submitted to the pathology lab for testing. The colonosco-py revealed no | .¿abnormalities of the colon, with the exception of a small polyp, which was biopsied and sent to the pathology lab for testing as well.

Mr. Poullard’s follow-up appointment for these procedures was held at the prison surgery outpatient clinic on March 19, 2003. The pathology report revealed Heli-cobacter pylori infection of the stomach and a benign polyp of the colon. Mr. Poullard received the standard antacid/antibiotic treatment for his stomach infection which consisted of a prescription of Preva-cid, Amoxicillin and Clarithromycin for a duration of two weeks. It was ordered that Mr. Poullard have a repeat colonosco-py in one year and that he return to E.A. Conway Medical Center as needed should his symptoms persist.

After completing his medication therapy of two weeks for the bacterial infection in his stomach, Mr. Poullard did not return to the medical center with complaints of stomach pain for several months. When he did begin to complain of stomach pain again eight months later, Mr. Poullard was referred by the staff physician at DWCC to the medical center where he was again treated with antibiotics and an antacid. Alter Mr. Poullard finished his antacid/antibiotic medication treatment, a repeat EGD was performed, which indicated no irregularities.

Mr. Poullard continued, however, to complain of stomach pain and returned to the medical center a third time where he was prescribed another course of antacid/antibiotic treatment. Different antibiotics were used this time, however, because Mr. Poullard’s physician suspected the bacteria causing his infection had become resistant to the initial antibiotics | ^prescribed. After being treated with a final course of antacid/antibiotic medication, Mr. Poullard had three additional follow-up visits to the medical center in March, April and May 2004. After May 2004, Mr. Poullard did not return to the medical center for stomach problems or complaints relating to the bacterial infection. Mr. Poullard did, however, return to the medical center after May 2004 for several problems unrelated to his stomach infection such as chest pains, a finger injury and lipoma of the shoulder. As previously stated, Mr. Poullard then filed the instant suit for medical malpractice.

Defendants filed a motion for summary judgment pursuant to La. C.C.P. art. 966, which was granted by the trial court. The trial court noted in its ruling that Mr. Poullard failed to present any competent evidence showing the standard of care applicable to his physicians, a breach of that standard of care or a causal connection between a breach and his injuries. The trial court further observed that, in addition to his failure to provide legal and factual support for his medical malpractice allegations, Mr. Poullard submitted absolutely nothing to overcome Defendants’ well pleaded motion for summary judgment.

Mr. Poullard now appeals.

DISCUSSION

The appellate court’s review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Hinson v. Glen 4Oak Retirement Home, 34,281 (La.App.2d Cir.12/15/00), 774 So.2d 1134. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. See La. C.C.P. art. 966(A)(2); Hinson v. Glen Oak Retirement Home, supra; Lee v. Wall, 31,468, 31,469 (La.App.2d Cir.1/20/99), 726 So.2d 1044; Gardner v. Louisiana State University Medical Center in Shreveport, 29,946 (La.App.2d Cir.10/29/97), 702 So.2d 53. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(B).

The burden of proof on a motion for summary judgment remains with the movant. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. When the mov-ant, however, will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant is not required to negate all the essential elements of the adverse party’s claim, action or defense. Id.; Hin-son v. Glen Oak Retirement Home, supra. Rather, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Samaha v. Rau, supra; Hinson v. Glen Oak Retirement Home, supra. Then, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and movant is entitled to summary judgment. See La. C.C.P. art. 966(C)(2); Samaha v. Rau, supra; Hinson v. 5Glen Oak Retirement Home, supra; Gardner v. Louisiana State University Medical Center in Shreveport, supra.

The plaintiff bears the burden of proving that a doctor committed malpractice. Wiley v. Lipka, 42,794 (La.App.2d Cir.2/6/08), 975 So.2d 726, writ denied, 08-0541 (La.5/2/08), 979 So.2d 1284. Any medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care, (2) the defendant’s breach of that standard of care, and (3) a causal connection between the breach and the claimant’s injuries. See La. R.S. 9:2794(A); Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228; Wiley v. Lipka, supra.

The Louisiana Supreme Court has found that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Samaha v. Rau, supra; Pfiffner v. Correa, supra; Wiley v. Lipka, supra; Vinson v. Salmon, 34,582 (La.App.2d Cir.5/9/01), 786 So.2d 913. In most cases, however, because of the complex medical and factual issues involved, a plaintiff who does not present medical expert testimony will likely fail to sustain his burden of proving his claim under the requirements of La. R.S. 9:2794. Samaha v. Rau, supra; Pfiffner v. Correa, supra; Wiley v. Lipka, supra; Vinson v. Salmon, supra. Nevertheless, expert testimony is not required where the physician does an obviously careless act from which a lay person can infer negligence, such as fracturing a leg during an examination, amputating the wrong arm, dropping a knife or scalpel on a patient or leaving a sponge in a patient’s body. Id.

| fiMr. Poullard’s primary argument is that Defendants committed medical malpractice when they did not set up a short-term follow-up appointment after prescribing him an initial course of antibiotics to treat the Helicobacter pylori bacterial infection in his stomach. According to Mr. Poullard, a short-term follow-up appointment should have been scheduled to ensure that the bacteria causing the infection in his stomach had not become resistant to the antibiotics. Mr. Poullard points out that Dr. Joann Alley, a witness for the defense, admitted that she understood that his infection may have become resistant to the initially prescribed antibiotics.

Mr. Poullard further argues that, in her affidavit, Dr. Alley intentionally and negligently misrepresented the “real standard of care” applicable to Defendants, i.e., the standard being to schedule a short-term follow-up appointment after prescribing an initial course of antibiotics to ensure that they were effective. Although Mr. Poul-lard never sets forth a cognizable legal standard of care which he claims to be applicable to Defendants, he contends that the true standard of care applicable to Defendants can be found by viewing the medical reports of his other physicians in his medical records.

Mr. Poullard did not present any evidence during the summary judgment proceedings in the form of expert witness medical testimony to support his claims against Defendants. Citing Pfiffner v. Correa, supra, Mr. Poullard argues that he should not have been required to produce expert witness testimony in support of his arguments because Dr. Pittman’s failure |7to schedule a follow-up appointment after prescribing a two-week course of antibiotics was “an obvious careless act in which a lay person [could] infer negligence.” We disagree.

Defendants correctly point out that they do not bear the burden, on summary judgment or at trial, of disproving Mr. Poul-lard’s medical malpractice claims and, further, that they are not required to produce expert witness testimony in support of their motion for summary judgment. Notwithstanding the lack of a requirement to do so, Defendants presented the affidavit opinion of Dr. Alley indicating that there was expert medical testimony as to the standard of care applicable to Defendants and that Defendants did not breach that standard of care during their treatment of Mr. Poullard. More particularly, Dr. Alley indicated that Dr. Pittman followed standard procedure by prescribing Mr. Poul-lard an antacid/antibiotic course of medication and by notifying him to return as needed with a repeat visit 'and colonoscopy scheduled in one year.

In support of their position as to the applicable standard of care, Defendants reference Dr. Alley’s affidavit opinion wherein she explains that, when a patient is in an institutional setting such as a prison, where 24-hour medical treatment is available and the patient has access to a daily sick call, short-term follow-up appointments are not automatically scheduled. This is because the patient is permitted to make a sick call to the prison’s medical facility where he is incarcerated to notify personnel that he needs to return to the medical center if it appears that his condition persists due to continued symptoms. ’

[^Significantly, as Dr. Alley and Defendants point out, even in the absence of scheduling a short-term follow-up appointment, Mr. Poullard continued to return to the medical center for treatment several times after he was initially treated by Dr. Pittman with a course of antacid/antibiotic medication. Each time Mr. Poullard complained of stomach pains relating to the infection after his initial treatment, he was examined and treated again by the physicians at the medical center. The third time Mr. Poullard was treated, he was prescribed different antibiotics because his physicians suspected the bacteria causing his infection had grown resistant to the initially prescribed antibiotics.

Given that Mr. Poullard was told to return as needed after he was initially treated by Dr. Pittman, and since Mr. Poullard did, in fact, return several times for additional treatment by Defendants, we cannot find that Defendants’ failure to schedule a short-term follow-up appointment with Mr. Poullard was a mistake “so obvious that a lay person [could] infer negligence without the guidance of expert testimony.”

In summary, Mr. Poullard submitted no evidence at the summary judgment proceedings, expert or otherwise, to support his allegations of medical malpractice. Thus, Mr. Poullard failed to prove by a preponderance of the evidence which standard of care was applicable to Defendants, whether there was a deviation from such standard and whether there was a causal connection between his injuries and an alleged breach of such standard. We find that Mr. Poullard’s failure to present evidence to support his allegations of medical malpractice against Defendants resulted in the | ^absence of a genuinely contested material fact in the case sub judice. Thus, Defendants were properly entitled to summary judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Defendants’ motion for summary judgment and dismissing John Poullard’s claims of medical malpractice is affirmed. Costs of this appeal are assessed to John Poullard.

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Eddie ANDERSON, Appellant.
    No. 44,093-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Eddie Anderson, pro se.

      Charles B. Brown, Mansfield, for Appellant.
    William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny W. Douci-ere, Assistant District Attorney, for Appel-lee.
    Before BROWN, DREW and LOLLEY, JJ.
   LOLLEY, J.

_JjThe defendant, Eddie Anderson, pled guilty to indecent behavior with a Juvenile in violation of La. R.S. 14:81. He was sentenced to seven years’ imprisonment at hard labor. The defendant now appeals, arguing that the sentence was excessive and that the trial court failed to notify him of his requirement to register as a sex offender under La. R.S. 15:542. For the reasons set forth below, we affirm the defendant’s conviction and sentence and remand for further proceedings.

Facts

The defendant was indicted on March 24, 2006, for aggravated rape, a violation of La. R.S. 14:42. The indictment was orally amended in open court on April 1, 2008, to a charge of indecent behavior with a juvenile who was 13 years old at the time, in violation of La. R.S. 14:81. The defendant entered an Alford “best interest” plea of guilty to the amended charge. During the guilty plea colloquy, the trial court discussed with the defendant the rights he was waiving as a result of pleading guilty as well as discussing with the defendant his age and education level. The trial court then explained to the defendant the sentencing range he would face as a result of pleading guilty. During the acceptance of the guilty plea, the trial court made no mention to the defendant that he would be required to register as a sex offender under La. R.S. 15:542.

The trial court explained the circumstances of the defendant’s arrest and the fact that he was indicted by a grand jury for aggravated rape. The trial court pointed out that the victim had given vivid descriptions of the alleged acts engaged in by the defendant and that, after his arrest, the | .¿defendant asked if it would make any difference if the child came on to him. The utterance of this ludicrous question led officers to believe that defendant had made some admission of guilt. The trial court pointed out that the victim has suffered from severe emotional distress since the incident and has been treated for depression. The trial court stated that he received many letters from friends of the defendant seeking leniency as well as a signed petition asking for the same.

The trial court sentenced the defendant to a period of seven years’ imprisonment at hard labor under the supervision of the Louisiana Department of Corrections. The trial court then notified the defendant of his right to appeal as well as the time periods in which to seek post-conviction relief. The defendant now appeals his sentence and the validity of his plea agreement.

Discussion

Registration Requirement

The defendant argues that the trial court erred in failing to notify him of his requirement to register as a sex offender under La. R.S. 15:542, and that this error made his guilty plea involuntary.

This court has held that the lack of notice can render a plea agreement involuntary when combined with other circumstances like defense counsel’s unpreparedness and inconsistency of the victim’s statements. State v. Burnett, 33,739 (La.App.2d Cir.10/04/00), 768 So.2d 783, writ denied, 2000-3079 (La.11/02/01), 800 So.2d 864. However, in the present case, the defendant’s retained counsel appeared in court with the defendant on |sApril 18, 2006, and represented the defendant continuously through sentencing. Further, defendant did not plead guilty until April 1, 2008, giving defense counsel time to prepare for trial and to inform defendant of the consequences of pleading guilty. There was no indication from the testimony elicited at sentencing that the victim’s statements were inconsistent. The only deficiency is the failure of the court to notify the defendant of the registration requirements of La. R.S. 15:542. Further, the defendant testified that he was aware of those requirements during the sentencing hearing. Accordingly, we find no merit in the argument that the trial court’s failure to give such notice to the defendant should result in the involuntariness of the guilty plea absent other circumstances indicating that the plea was not knowing and voluntary.

However, the defendant must be notified of his responsibilities in writing. Indecent behavior with a juvenile is defined as a “sex offense” under La. R.S. 15:541(24). Louisiana R.S. 15:542 provides registration requirements for sex offenders. In addition, La. R.S. 15:543 requires that the trial court notify a defendant charged with a sex offense in writing of the registration requirements, and that such notice be included on any guilty plea forms and judgment and sentence forms provided to defendant. Thus, we remand this matter to the trial court solely for the purpose of providing the appropriate written notice to defendant of the sex offender registration requirements in open court within 10 days of the rendition of the opinion and for the filing of written proof that defendant received notice in the |4record of the proceedings. See, e.g., State v. Scott, 42,997 (La.App.2d Cir.02/13/08), 975 So.2d 782.

Excessive Sentence

The defendant was sentenced to seven years’ imprisonment at hard labor, the maximum sentence permissible under La. R.S. 14:81. The defendant argues that this sentence is excessive because the defendant is a first felony offender and that there have been no prior allegations of sexual misconduct in his criminal history. Further, the defense argues that the defendant had been gainfully employed in the same position for 28 years and many members of the community, as well as family members, made statements or mailed letters to the court in support of the defendant.

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.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. 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. Swayzer, 543,350 (La.App.2d Cir.08/13/08), 989 So.2d 267. 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. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259. 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.09/28/07), 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.01/14/03), 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.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.04/09/03), 842 So.2d 330; State v. Hardy, 639,233 (La.App.2d Cir.01/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 1995-2784 (La.05/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

The first prong of the test above is clearly met here. The trial court enumerated several factors that it considered in sentencing the defendant. The trial court considered the important factors enumerated in State v. Jones and others, discussing with the defendant during the guilty plea colloquy his age and education level, as well as considering those same matters during sentencing. The trial court considered the fact that employment awaited the defendant when he was released, and it considered the testimony of the friends and family of the defendant who testified about his relationship with his family members. The trial court discussed with the defendant his criminal history and whether he had been charged with certain crimes or only arrested (and even went so far as to refuse to consider one of the crimes contained in the presentence report because the court could not determine its veracity). The nature of the criminal acts was discussed, as were the statements made by the victim about her life subsequent to the crimes. The trial court considered the original charge as well as the present state of the victim’s life, pointing out that she had gone from being a good student to nearly failing and suffering from depression after these incidents occurred. |7The court has clearly met the requirements of the first prong of the ex-cessiveness test.

The only remaining question is: did the trial court abuse its discretion by sentencing this defendant to a grossly disproportionate sentence? No. The defendant was originally indicted for aggravated rape, a crime which carries a mandatory life sentence. The defendant was allowed to plea guilty to indecent behavior with a juvenile which carries a maximum sentence of seven years. The court found that due to the seriousness of the circumstances of the offense and the seriousness of the damage done to the victim of this crime, the defendant should be sentenced to the seven-year maximum under the applicable statute. The defendant has not shown that such a sentence is constitutionally excessive or, taking into account the circumstances of the offense, that the trial court abused its discretion in sentencing the defendant to the statutory maximum.

Conclusion

For the foregoing reasons, the defendant’s conviction and sentence are affirmed; however, the case is to be remanded to the trial court for the sole purpose of ordering the trial court to give the defendant written notice of the registration requirements of La. R.S. 15:542 as required by La. R.S. 15:543 in open court within 10 days of the issuance of this court’s opinion.

AFFIRMED AND REMAND FOR FURTHER PROCEEDINGS.


author: GRAVES, Presiding Justice,

text:
    Scott Oliver CALDWELL v. STATE of Mississippi.
    No. 2007-KA-00970-SCT.
    Supreme Court of Mississippi.
    Feb. 19, 2009.
    Rehearing Denied April 30, 2009.

      Phillip Broadhead, Oxford, Leslie S. Lee, Jackson, William C. Bristow, Tupelo, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   GRAVES, Presiding Justice,

for the Court.

¶ 1. Scott Oliver Caldwell was convicted of sexual battery in the Circuit Court of Lee County, Mississippi, and sentenced to thirty-five years to be served in the custody of the Mississippi Department of Corrections, with five years suspended and five years post-release supervision. Thereafter, Caldwell’s post-trial motions were denied and he perfected this appeal.

FACTS

¶ 2. On July 19, 2005, a Lee County grand jury handed down an indictment against Scott Oliver Caldwell for two counts of sexual battery against his then-seven-year-old stepdaughter, J.D. During Caldwell’s trial in February 2007, the State presented testimony from J.D., J.D.’s aunt to whom she first reported the assault, counselors who examined J.D., and others. This testimony established that Caldwell had performed acts of fellatio, digital penetration, and cunnilingus on J.D.; that Caldwell had allowed J.D. to smoke cigarettes with him; that Caldwell had watched a pornographic movie with J.D.; and that she had eventually reported to her aunt that Caldwell was “sexing” her.

¶ 3. Evidence was also presented that Caldwell’s sons (J.D.’s stepbrothers) had molested J.D. by “humping” her. The defense theorized that these incidents formed the basis of the victim’s knowledge of sexual matters, and that her accusations against Caldwell amounted to an act of revenge for not protecting her from her stepbrothers. Caldwell was not permitted to question J.D. about the attacks by her stepbrothers, but was allowed to question other witnesses about the incidents.

¶ 4. During the course of the trial, evidence emerged to show indisputably that the indictment’s second count of sexual battery referred to an incident that had occurred not in Lee County but in neighboring Itawamba County-and therefore was outside the jurisdiction of the Lee County Circuit Court. The trial court initially ruled that the jury would be required to disregard all references to any activity that took place outside Lee County, but later ruled that evidence regarding such activity would be admissible under Mississippi Rule of Evidence 404(b), which governs evidence of prior bad acts. The trial court also granted a directed verdict for Caldwell on this count in the indictment. On February 28, 2007, a Lee County Circuit Court jury convicted Caldwell of the remaining count of sexual battery. Caldwell was sentenced to serve thirty-five years in the custody of the Mississippi Department of Corrections, with five years suspended and five years post-release supervision. Caldwell appeals from that conviction.

ANALYSIS

I. Whether the trial court erred in failing to dismiss both counts of the indictment after the testimony disclosed that the facts alleged in count II occurred in Itawamba County rather than in Lee County.

¶ 5. Caldwell contends that the Lee County Circuit Court committed reversible error by allowing evidence of an alleged sexual battery that had occurred in Itawamba County, even after the trial court realized that it did not have jurisdiction. This Court reverses a trial court’s admission of evidence only when the trial court abuses its discretion. Cox v. State, 849 So.2d 1257, 1268 (Miss.2003). See also Mitchell v. State, 792 So.2d 192, 217 (Miss.2001) (“However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence.... Reversal is proper only where such discretion has been abused and a substantial right of a party has been affected.”)

¶ 6. Mississippi Rule of Evidence 404(b) governs whether evidence of prior bad acts is admissible. Although evidence of prior bad acts ordinarily is not admissible to show conformity therewith, “[i]t may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Miss. R. Evid. 404(b). This list of available uses of evidence showing prior bad acts is not exclusive. Id. cmt. This Court has repeatedly held that “evidence of prior sexual acts between the accused and the victim is admissible to show the accused’s lustful, lascivious disposition toward the particular victim, especially in circumstances where the victim is under the age of consent.” Walker v. State, 878 So.2d 913, 915 (Miss.2004) (citations omitted). The trial court clearly admitted the evidence regarding the Itawamba County battery for that limited purpose.

¶ 7. The particular problem in the case at ba& though, is the intertwined manner in which the Rule 404(b) evidence was presented alongside the evidence of substantive guilt. Even if evidence is admissible under Rule 404(b), it still must pass through the “ultimate filter” of Mississippi Rule of Evidence 403. Jasper v. State, 759 So.2d 1136, 1141 (Miss.1999) (citations omitted). Rule 403 commands that evidence should be excluded, even if relevant, “if its probative value is substantially outweighed by the danger of ... confusion of the issues.... ” Miss. R. Evid. 403 (emphasis added). This is a determination on which this Court grants great deference to the trial judge, and even when the probative value of evidence is slightly outweighed by Rule 403 concerns, it must be admitted. Brown v. State, 749 So.2d 204, 210 (Miss.Ct.App.1999). However, it is axiomatic that when the probative value of evidence, notwithstanding its relevance, not only is substantially outweighed by the danger of issue confusion but does in fact result in issue confusion, Rule 403 is violated. Gaines v. K-Mart Corp., 860 So.2d 1214, 1219 (Miss.2003) (“... Rule 403 prohibits the use of any evidence that substantially confuses the issues.”).

¶ 8. In the instant case, evidence of both counts in the indictment was presented side by side, leaving no opportunity for a reasonable jury to distinguish between evidence presented for substantive guilt and evidence presented to show lustful disposition. For example, during the State’s direct examination of Dr. Margaret Kora-nek, a child therapist who examined the victim, evidence of battery was presented despite Dr. Koranek’s admission that she did not know whether the battery took place in Lee County or Itawamba County. Even the trial judge became confused by the State’s intertwined evidence. Under Rule 404(b), evidence of prior bad acts must be clearly distinguished from evidence of substantive guilt so as to make clear the limited purpose for which it is offered. The trial erred by failing to make that distinction.

¶ 9. However, when Rule 404(b) evidence is presented and the trial court fails to distinguish it from evidence of substantive guilt, harmless error will not warrant reversal. Baldwin v. State, 732 So.2d 236, 245 (Miss.1999). See also Carter v. State, 722 So.2d 1258, 1262 (Miss.1998). In the instant case, whatever error the trial court committed in failing to distinguish the Rule 404(b) evidence clearly was harmless. Erroneously admitted evidence is harmless when “the same result would have been reached had [error] not existed.” Tate v. State, 912 So.2d 919, 926 (Miss.2005) (quoting Burnside v. State, 882 So.2d 212, 216 (Miss.2004)). The State produced overwhelming evidence of Caldwell’s guilt that went undiscredited. Whatever evidence was admitted by Rule 404(b) was merely superfluous, notwithstanding the trial court’s failure to properly distinguish its limited purpose.

¶ 10. Because the trial court’s failure to distinguish the evidence of prior bad acts under Rule 404(b) was harmless error, the trial court’s refusal to grant Caldwell’s request for a mistrial on the entire indictment was not error. We find that this issue is without merit.

II. Whether the trial court erred in excluding testimony about prior sexual abuse of the child under Mississippi Rule of Evidence 412 and in admitting evidence under Mississippi Rule of Evidence 803(25), the “tender-years” doctrine.

¶ 11. Caldwell alleges that the trial court erred when it denied him, pursuant to Rule 412, the opportunity to call the victim’s stepbrothers to discuss their attacks against the victim. As with this appeal’s first issue, this is a question regarding the trial court’s decision on the admissibility of evidence. The decision is reviewed for abuse of discretion. Cox v. State, 849 So.2d 1257, 1268 (Miss.2003).

¶ 12. Generally, in prosecutions of sexual offenses, reputation or opinion evidence regarding a victim’s past sexual behavior is irrelevant and inadmissible. Miss. R. Evid. 412(a). However, Rule 412(b) permits evidence of “[p]ast sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of injury.... ” Miss. R. Evid. 412(b)(2)(A).

¶ 13. Caldwell contends that the trial court erred by not permitting him to procure the testimony of his stepsons who molested the victim. Caldwell hoped to show that their batteries, and not any acts on his part, gave the then-seven-year-old victim her unusually detailed knowledge of sexual matters. This argument hinges on whether the victim’s premature knowledge of sexual matters is an “injury” for purposes of Rule 412.

¶ 14. However, this Court has not held that a child’s knowledge of sexual matters is an “injury.” The closest that the Court has come to such a holding came in a 1996 case in which the justices rejected Rule 412 evidence of the cause of a sex-crime victim’s emotional trauma, not because emotional trauma did not qualify as an “injury,” but because the evidence offered by the defense to address that trauma was not reliable. Peterson v. State, 671 So.2d 647, 668-59 (Miss.1996) (superseded on other grounds by statute as discussed in Caston v. State, 949 So.2d 852, 856 (Miss.Ct.App.2007)).

¶ 15. Still, Caldwell did not seek to introduce this testimony because it showed the source of emotional trauma or psychological injury, but rather the victim’s knowledge of sexual matters. This Court has not addressed the question of whether such testimony is admissible to show the victim’s knowledge of sexual matters, and ultimately, it need not reach that determination in this case. Although the trial court denied Caldwell his preferred avenue for producing evidence of his sons’ attacks, he was allowed to produce this evidence through other means. The Sixth Amendment’s guarantee of a fair trial does not permit the Court to construe Rule 412 so strictly as to deprive Caldwell of “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). But in the instant case, the trial court permitted Caldwell to produce evidence of his sons’ assaults upon the victim through cross-examination of several other witnesses.

¶ 16. The trial court’s decision not to allow Caldwell to call the victim’s stepbrothers did not deprive the defendant of an ample opportunity to present his theory of the case. Therefore, we find that this assignment of error is without merit.

¶ 17. Caldwell also asserts that the trial court deprived him of his Sixth Amendment right to confront his accuser by permitting the State to produce evidence of the victim’s other attacks through the hearsay testimony of a rebuttal witness, rather than by requiring the State to recall the victim to the witness stand.

¶ 18. Among Mississippi’s numerous exceptions to the hearsay rule is Rule 803(25), commonly known as the “tender-years exception.” This rule allows hearsay testimony regarding a child’s statement regarding sexual contact by another if “the court finds ... that the time, content, and circumstances of the statement provide substantial indicia of reliability; and ... the child ... testifies at the proceedings. ...” Miss. R. Evid. 803(25)(a)-(b)(l).

¶ 19. It is beyond dispute that the trial court held a preliminary hearing on the permissibility of this hearsay evidence, but Caldwell contends that J.D. did not, for purposes of Rule 803(25), “testif[y] at the proceedings.” Miss. R. Evid. 803(25)(b)(l). Because the Rule 803(25) testimony was produced long after J.D. had left the stand, Caldwell argues that he was deprived of an opportunity to cross-examine J.D. on the substance of the rebuttal witness’ hearsay testimony.

¶ 20. Caldwell had every opportunity to recall J.D. to the stand as a rebuttal witness-a fact admitted in his brief to this Court. Caldwell contends that his hands were tied because recalling J.D. would have made his attorneys — and, ultimately, him — look like a bully in front of the jury. The question of whether to put J.D. back on the stand was a matter of strategy, and an appellate court will not reverse for matters within the ambit of trial strategy. See Spicer v. State, 973 So.2d 184, 203 (Miss.2007) (quoting Powell v. State, 806 So.2d 1069, 1077 (Miss.2001)).

¶ 21. Because Caldwell could have recalled the victim after the admission of the Rule 803(25) testimony but chose not to do so, the admission of this hearsay evidence did not violate his Sixth Amendment right to confront his accuser. We find that this assertion is also without merit.

III. Whether the trial court erred in denying Caldwell’s motion for a new trial because the verdict was contrary to the overwhelming weight of the evidence.

¶ 22. Finally, Caldwell asserts that the trial judge erred by declining to grant his motion for a new trial because the jury reached its verdict against the great weight of the evidence. Denial of such a motion is reviewed for an abuse of discretion. Dudley v. State, 719 So.2d 180, 182 (Miss.1998). “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Id. (quoting Herring v. State, 691 So.2d 948, 957 (Miss.1997)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Id. (quoting Pleasant v. State, 701 So.2d 799, 802 (Miss.1997)).

¶ 23. The evidence presented in this case fully proves the elements of sexual battery. J.D.’s testimony regarding the incidents of sexual battery was never discredited, and all other witness testimony was consistent with J.D.’s account. Matters regarding the credibility and weight to be accorded the evidence are to be resolved by the jury. Meshell v. State, 506 So.2d 989, 992 (Miss.1987). The fact that the jury did not believe Caldwell’s theory of the case does not render the verdict untenable.

¶ 24. The jury’s verdict was not against the overwhelming weight of the evidence, and the trial court did not err when it denied Caldwell’s motion for a new trial. Therefore, we find that this issue is without merit.

CONCLUSION

¶ 25. For the reasons stated herein, we affirm Caldwell’s judgment of conviction and sentence.

¶ 26. CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY-FIVE (35) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE (5) YEARS SUSPENDED AND POST-RELEASE SUPERVISION FOR A PERIOD OF FIVE (5) YEARS, WITH CONDITIONS, AFFIRMED.

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

      . This use of past sexual behavior is subject to a fifteen-day notice requirement. Miss. R. Evid. 412(c)(1). Caldwell concedes that he did not comply with that requirement. However, the State never raised a timeliness objection at trial, and this Court has held that such a failure waives the notice deficiency. Herrington v. State, 690 So.2d 1132, 1137 (Miss.1997).

      . Caldwell failed to object at trial to the Rule 803(25) evidence, but this Court has held that a failure to timely object to such testimony does not waive the Sixth Amendment right to confront witnesses. Hobgood v. State, 926 So.2d 847, 852 (Miss.2006).


author: WALLER, Chief Justice,

text:
    Jon ADAMS v. A & C ENTERTAINMENT.
    No. 2007-CA-01774-SCT.
    Supreme Court of Mississippi.
    April 16, 2009.

      Paul E. Rogers, Jackson, attorney for appellant.
    Chris N.K. Ganner, attorney for appel-lee.
    Before WALLER, C.J., DICKINSON and KITCHENS, JJ.
   WALLER, Chief Justice,

for the Court.

¶ 1. Jon Adams seeks review of the circuit court’s dismissal of his appeal from county court. We reverse and remand to the Hinds County Circuit Court.

PROCEDURAL HISTORY

¶ 2. Jon Adams leased a building to A & C Entertainment Corporation. Believing A & C to be in default, Adams sought to evict A & C and recover possession of the building through a complaint for unlawful entry and detainer. Following trial, the county court ordered Adams to continue leasing the building to A & C subject to a variety of conditions not at issue here.

¶ 3. Adams filed a timely notice of appeal with the Circuit Court of the First Judicial District of Hinds County, and the parties filed briefs with the court. A & C filed a “Motion to Strike Brief of Defendant/Appellant, Jon Adams and Dismiss Appeal,” to which Adams filed a response. On January 17, 2007, the circuit court granted A & C’s motion and dismissed Adams’s appeal for failure to cite authority, in violation of Mississippi Rule of Appellate Procedure 28(a)(6). The order stated:

Appellant’s Brief does not cite any authority to support his argument. Rule 28(a)(6) M.R.A.P. requires that “[t]he argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to authorities, statutes, and parts of the record relied on.” Accordingly, Appellant’s Brief is procedurally barred. See Sandlin v. Sandlin, 906 So.2d 39 (Miss.Ct.App.2004).

¶ 4. Adams filed a motion for reconsideration on or about January 29, 2007. The caption of Adams’s motion for reconsideration correctly identified the parties, was appropriately designated as a motion for reconsideration, and was filed in the Hinds County Circuit Clerk’s office. However, Adams used the county court name and file number, rather than the circuit court name and file number.

¶ 5. A & C filed a response to Adams’s motion for reconsideration on April 13, 2007. A & C’s response did not object to the motion for reconsideration on the basis that the caption incorrectly identified the court as “county court” and used the file number from county court. On July 5, 2007, the circuit court denied Adams’s motion for reconsideration. The order stated, in part, that “the Court finds that said motion was not filed in this Court, but was erroneously filed in the County Court; therefore, the motion was not timely filed in accordance with Miss. R.App. P. 27(h), as amended, and should be DENIED.”

¶ 6. Thereafter, on July 16, 2007, Adams filed a notice of appeal. On appeal, Adams requests that this Court remand this case to the circuit court for a decision on the merits of his appeal from county court. Alternatively, Adams requests that this Court reverse and render the decision of the county court.

DISCUSSION

¶ 7. The sole issue for consideration is whether the circuit court improperly dismissed Adams’s appeal.

Timely filing the motion for reconsideration

¶ 8. Before reviewing the merits of the circuit court’s dismissal of Adams’s appeal from county court, we first review the circuit court’s denial of Adams’s motion for reconsideration as being untimely.

¶ 9. The motion for reconsideration was timely filed on January 29, 2007, within fourteen days of the circuit court’s dismissal of Adams’s appeal on January 17, 2007. See Miss. R.App. P. 27(h) (“motions for reconsideration of rulings on motions ... may be filed within 14 days after a decision is handed down on the motion to be reconsidered.... ”).

¶ 10. We are unable to find any authority, at least by rule or precedent, for the circuit court’s ruling that filing a motion for reconsideration using the county court caption renders the motion “not filed.” Here, the motion for reconsideration was filed with the Hinds County Circuit Clerk and satisfied the rules applicable to the filing of motions.

¶ 11. While there is no case directly on point in Mississippi, we find some analogous cases from other jurisdictions which support Adams’s position. See, e.g., Kaster v. Heinrich, 489 N.E.2d 152, 155 (Ind.Ct.App.1986) (motion that was incorrectly numbered was considered filed when presented to and received by the clerk of the court); Phillips v. Phillips, 46 N.C.App. 558, 265 S.E.2d 441, 443 (1980) (defendant demonstrated no prejudice arising from motion filed containing incorrect cause number when, at the time the motion was served, there was only one case pending between plaintiff and defendant, and the contents of the motion clearly indicated that the motion was directed to the subject case); Eagle Props. v. Tex. Commerce Bank Nat’l Ass’n, 2005 WL 2090696, 2005 Tex.App. LEXIS 7158 at *4 (Tex.App. 2005) (despite the fact that the cause number at the top of appellee’s answer was incorrect, the title clearly identified the document as “Defendant’s Original Answer to Plaintiffs Second Original Petition for Bill of Review,” and appellant should have known that the incorrect cause number was simply a clerical error).

¶ 12. We find that Adams’s motion for reconsideration was filed timely and was thus before the circuit court.

Dismissal of appeal from county court for failure to cite authorities

¶ 13. Having found Adams’s motion for reconsideration timely, we find that the circuit court erred in dismissing Adams’s appeal on the basis that Adams had failed to cite any authority in support of his argument. Pursuant to our rules of appellate procedure, Adams was entitled to notice of the deficiencies in his brief and fourteen days from that notice to correct the deficiencies. Miss. R.App. P. 2(a)(2). This precise issue has been addressed by this Court. See Van Meter, 774 So.2d at 432 (“Rule 2(a)(2) mandates that, after a motion to dismiss has been filed, the court clerk (the circuit clerk in this instance) officially notify an appellant of deficiencies in his appeal and that the appellant be given fourteen (14) days therefrom to correct any deficiencies.”); see also American Investors, 733 So.2d at 832 (the circuit court erred in dismissing appeal from county court without prior notice of, and an opportunity to cure, deficiency).

CONCLUSION

¶ 14. The judgment of the Circuit Court of the First Judicial District of Hinds County is reversed, and this case is remanded to that court for further proceedings consistent with this opinion after it first issues a Mississippi Rule of Appellate Procedure 2(a)(2) notice to Adams, giving him specific notice of the deficiencies of his appeal and allowing him fourteen days from the date of the notice to cure said deficiencies.

¶ 15. REVERSED AND REMANDED.

CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Mississippi Rule of Appellate Procedure 32(b) provides that "[a] motion or other paper ... shall contain a caption setting forth the name of the court, the style (title) of the case, the tracking or docket number, and a brief descriptive title indicating the purpose of the paper.” Miss. R.App. P. 32(b).

      . The Rules of Appellate Procedure apply to appeals from county court to circuit court. See Van Meter v. Alford, 774 So.2d 430, 432 (Miss.2000).

      . The procedure for appeals from county court to circuit court is controlled by the Mississippi Rules of Civil Procedure, the Uniform Rules of Circuit and County Court Practice, and the Mississippi Rules of Appellate Procedure. American Investors, Inc. v. King, 733 So.2d 830, 832 (Miss.1999).

      . In reviewing the applicable rules with respect to the requirements for filing motions, we find a rule requiring that all papers shall be filed with the clerk of the Supreme Court (here, the clerk of the circuit court) and that copies of all papers be served on the other party. Miss. R.App. P. 25. In addition, "motion[s] shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought.” Miss. R.App. P. 27(a). The attorney presenting the motion must include his/her name, office address, and phone number. Unif. Cir. & Cty. R. 1.05. Motions must include a certificate of service and be served pursuant to Mississippi Rule of Civil Procedure 5. Unif. Cir. & Cty. R. 2.06. Finally, original motions "shall be filed with the clerk of the county where the action is docketed.” Unif. Cir. & Cty. R. 4.03. Adams complied with all of these rules.

      . In light of the disposition of this case, we deny A & C's "Motion to Dismiss Appeal by Appellant, Jon Adams, as Being Out-of-Time," as well as A & C’s "Motion to Strike Brief of Defendant/Appellant, Jon Adams and Dismiss Appeal.”


author: CARLSON, Presiding Justice,

text:
    Dennis DOBBS v. STATE of Mississippi.
    No. 2007-CT-00900-SCT.
    Supreme Court of Mississippi.
    April 16, 2009.

      Dennis Dobbs, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court.

¶ 1. Dennis Dobbs submitted various filings to the Marshall County Circuit Court, which treated these filings as a motion for post-conviction relief. The circuit court denied relief, and Dobbs appealed, asserting his motions were not post-conviction motions but rather civil complaints under Title 42 of the United States Code Section 1983 (2006). The Court of Appeals affirmed, and we granted certiorari to address the issue of whether the Marshall County Circuit Court had jurisdiction to consider a motion for post-conviction relief filed by an inmate serving a Clay County Circuit Court sentence in the Marshall County Correctional Facility.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 25, 2006, Dennis Dobbs filed his “Petition for an Order to Show Cause” in the Marshall County Circuit Court. At the time, Dobbs was incarcerated at the Marshall County Correctional Facility for a conviction and sentence imposed by the Clay County Circuit Court. In his pro se petition, Dobbs asserted that he “is not attacking the legality of his sentence” and that he “is housed in-a-unhuman [sic ] condition.” Specifically, Dobbs argued that there were no air conditioners installed in the facility and the windows did not open. Dobbs filed an amended petition on July 26, 2006, wherein he further asserted that he was housed in “a fire hazard facility” in that the Marshall County Correctional Facility does not have fire sprinkler systems in the dormitories. The record contains numerous additional filings which appear unrelated to the matter presently before this Court.

¶ 3. The Marshall County Circuit Court entered an order dated May 10, 2007, wherein Dobbs’s filings were treated as a motion for post-conviction relief pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotation Sections 99-39-1 to 99-39-29and the relief requested was denied. More specifically, the trial court stated, inter alia, in its order:

After reviewing the documents filed by the Petitioner in relation to the Motion for Post Conviction Relief, and considering all matters in a light most favorable to the Petitioner, the Court is of the opinion that the Petitioner’s assertions are without merit.

Based on the trial court’s denial of any relief pursuant to his various filings, Dobbs appealed to this Court, asserting that his filings should not have been treated as a motion for post-conviction relief but rather as a “ § 1988 complaint on conditions of confinement.” We assigned this case to the Court of Appeals, which in due course affirmed the Marshall County Circuit Court. Dobbs v. State, 6 So.3d 1088, 2008 Miss.App. LEXIS 354 (Miss.Ct.App. June 10, 2008). Dobbs filed a motion for rehearing, which the Court of Appeals dismissed. Dobbs v. State, 2008 Miss.App. LEXIS 688 (Miss.Ct.App. Nov. 12, 2008). Thus, Dobbs filed his petition for writ of certiorari, and this Court granted the petition on January 29, 2009. Dobbs v. State, 999 So.2d 852, 2009 Miss. LEXIS 28 (Miss. Jan. 29, 2009).

DISCUSSION

¶ 4. Dobbs asserts that his filings should have been treated as a complaint filed pursuant to 42 United States Codes § 1983, challenging the conditions of confinement rather than post-conviction relief filings. See 42 U.S.C. § 1983 (2006). We granted certiorari to address jurisdiction over a motion for post-conviction relief (PCR). Dobbs did not have a conviction in Marshall County. Instead, based on an executive decision by the Mississippi Department of Corrections, Dobbs was placed in the Marshall County Correctional Facility to serve his sentence, which had been imposed by the Clay County Circuit Court as a result of a conviction in that court. Thus, the Marshall County Circuit Court did not have jurisdiction to treat Dobbs’s Petition for an Order to Show Cause and other filings as a motion for post-conviction relief. Mississippi Code Annotated section 99-39-7 states, in part:

The motion under this article shall be filed as an original civil action in the trial court, except in cases in which the prisoner’s conviction and sentence have been appealed to the supreme court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the supreme court of Mississippi, convened for said purpose either in term-time or in vacation, and an order granted allowing the filing of such motion in the trial court.

Miss.Code Ann. § 99-39-7 (Rev.2007). Therefore, with respect to Dobbs’s conviction in the Clay County Circuit Court of simple assault on a law enforcement officer and false pretenses, if Dobbs were seeking post-conviction relief, he would be required to file his PCR motion in the Circuit Court of Clay County, the trial court in which he was convicted, inasmuch as his conviction and sentence had not been appealed. “[T]he court in which the conviction was obtained has exclusive jurisdiction of a PCR from that conviction.” Garlotte v. State, 915 So.2d 460, 463 (Miss.Ct.App.2005). See, e.g., Stanley v. Turner, 846 So.2d 279, 281 (Miss.Ct.App.2003) (“[j]uris-diction for such a proceeding lies in the circuit court where the conviction was obtained”); McDonall v. State, 465 So.2d 1077, 1078 (Miss.1985) (jurisdiction to hear post-conviction collateral relief lies in court last having jurisdiction). See also Martin v. State, 556 So.2d 357, 358-359 (Miss.1990).

¶ 5. The Court of Appeals found that “[b]ecause the circuit court treated Dobbs’s filings as a motion for post-conviction relief, it was proper to deny his requested relief,” since Dobbs’s allegations did “not fall under any of the grounds for post-conviction relief enumerated in section 99-39-5(1).” Dobbs, 6 So.3d at 1090, 2008 Miss.App. LEXIS 354, *4, ¶ 8. However, the reason that Dobbs’s pleadings, and the relief requestéd therein, did not fall under any of the statutory grounds for relief under section 99-39-5(1) is that Dobbs was not seeking to have the Marshall County Circuit Court set aside his Clay County conviction and/or sentence— Dobbs was seeking civil redress for what he characterized as inhumane conditions at the Marshall County Correctional Facility.

116. The Mississippi Uniform Post-Conviction Collateral Relief Act provides for the filing of a post-conviction relief motion for the purpose of attacking a criminal conviction and/or sentence. See Miss.Code Ann. § 99-39-5 (Rev.2007). Dobbs explicitly stated in his petition that he was not attacking the legality of his sentence, nor did he even inferentially attack the legality of his conviction. As such, and due to the lack of jurisdiction, the Circuit Court of Marshall County should have treated Dobbs’s filings as non-post-conviction relief filings.

¶ 7. As noted, supra, the filings with the Clerk of this Court reveal that Dobbs has been released from custody on his heretofore-imposed Clay County Circuit Court sentence, and he now has a mailing address in Prairie, Mississippi. However, the mere fact that Dobbs has been released from custody does not posit this Court, based on the cold record before us, to dismiss as moot Dobbs’s claims of the alleged “inhumane conditions” at the Marshall County Correctional Facility. The consideration of the issues of perceived mootness and, if necessary, the merits of Dobbs’s civil filings are better left to the trial court.

CONCLUSION

¶ 8. As a result of the jurisdictional error created by the Marshall County Circuit Court’s treatment of Dobbs’s filings as a motion for post-conviction relief, this case is remanded to the Circuit Court of Marshall County to address Dobbs’s Petition for an Order to Show Cause, consistent with this opinion.

¶ 9. REVERSED AND REMANDED.

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

      . In the order dismissing Dobbs’s motion for rehearing, the Court of Appeals stated, inter alia, "Dobbs informed the Supreme Court Clerk’s Office that he had been released from incarceration, and was living at a home address. This Court finds that the matter Dobbs sought to raise in the circuit court, and in this Court, is now moot, and motion for rehearing should be dismissed.”

      . In his petition for writ of certiorari, Dobbs states, "Petitioner filed a § 1983 claim on a Motion to Show Cause Petition, because the facility he was housed at ... had no § 1983 forms in the Law Library.”