text:
    James Ronald SAVOIE, et al. v. Romel CHARLES, et al.
    No. 10-1008.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Thomas K. Regan, Attorney at Law, Crowley, LA, for Defendants/Appellees, Thomas K. Regan, Cajun Environmental Services, Inc.
    C. Luke Edwards, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants, James Ronald Savoie, Sandra Savoie.
    Jermaine D. Williams, Carolyn D. Deal, Attorneys at Law, Lafayette, LA, for Defendant/Appellee, Romel Charles.
    Paul Ivan Guillory, Sr., Church Point, LA, Defendant-In Proper Person.
    Terry L. Lacombe, Egan, LA, Defendant-In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| plaintiffs, James Ronald Savoie and Sandra Savoie, appeal a judgment of the trial court granting an exception of no cause of action filed by Defendant, Thomas K. Regan, and dismissing Plaintiffs’ suit against him. Finding no error in the trial court’s judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 24, 2006, Plaintiffs filed a Petition for Damages (the petition) in the Fifteenth Judicial District Court, Parish of Acadia, naming as defendants Mr. Regan, Romel Charles, Ivan Guillory, Terry La-combe, and Cajun Environmental Services, Inc. (Cajun). The petition alleged that:

In November of 2004, Petitioners purchased forty-eight (48) ten yard containers, six (6) thirty yard containers, those particularly bearing serial numbers 10642, 10548, 10644, 10645, 9815, 10012, and six (6) forty yard containers, as well as the rights to use two tractors, more particularly identified as a 1986 Mac Truck bearing VIN 1M2P140CGA013658, and a 1990 Peter-built Truck bearing VIN 9DWST7G39LC013000.

The bill of sale evidencing the above transaction was attached to the petition as Exhibit A. The seller listed on the bill of sale was Rolloff Containers, L.L.C. (Rolloff). Although the seller’s signature is illegible, Plaintiffs explained in their brief to this court that Mr. Savoie entered into the bill of sale with Mr. Guillory on November 12, 2004, so we will assume that Mr. Guillory signed the bill of sale on behalf of Rolloff. The sale price for the containers was listed as $45,000. With regard to the two trucks, the bill of sale provided that Rolloff agreed to rent them to Mr. Savoie for one year from the date the contract was signed for the sum of “$0.00” per month.

12PIaintiffs alleged that, subsequent to the time the bill of sale was signed, Mr. Charles attempted to purchase the same property from Mr. Guillory. According to the petition,

[a] meeting was held between Romel Charles, Ivan Guillory, and James Sa-voie, wherein it was demand [sic] that Mr. Savoie relinquish his rights or pay rental income to Romel Charles even though he had never perfected the sale and despite Mr. Savoie’s rights not being compromised by any subsequent sale of which all parties were aware.

Plaintiffs further alleged that Mr. Charles “subsequently stole” four of the six thirty-yard containers that they owned. Next, Plaintiffs alleged that Mr. Regan and Mr. Lacombe later approached Mr. Savoie about purchasing his equipment and the rights to the Mac and Peterbuilt trucks but that when Mr. Savoie “did not accept the purchase offer made by Mr. Regan on behalf of Cajun Environmental Services, Inc., Mr. Regan, in his capacity as an attorney, filed a Petition requesting the issuance [of] a Writ of Sequestration.” Plaintiffs attached as Exhibit B to their petition copies of the Petition for Recovery of Vehicles and Sequestration (the Sequestration Suit) filed by Cajun in the Fifteenth Judicial District Court, Parish of Acadia, on August 8, 2005, against Mr. Savoie and JPS Containers, L.L.C. (JPS), along with the Notice of Seizure of the Mac and Peterbuilt trucks. According to Plaintiffs, “Mr. Regan omitted in his petition for Sequestration that he was aware of Mr. Savoie having the rights to the use of the two subject vehicles” even though “all parties, including Mr. Regan, personally knew that the vehicles were encumbered by the rental agreement as outlined in the Bill of Sale.”

In the petition filed in this matter, Plaintiffs claimed that as a result of the theft by Mr. Charles and the fraudulent and/or wrongful seizure of the Mac and Peterbuilt 1 ¾trucks by Cajun, Mr. Regan, and Mr. Lacombe, they sustained damages including financial distress, loss of income, loss of good will, loss of contractual relations, embarrassment, inconvenience, and emotional and mental distress.

Mr. Regan filed a peremptory exception of no cause of action in this matter on November 30, 2007. Therein, Mr. Regan claimed that although the Plaintiffs’ petition named him as a defendant and alleged that he had filed a petition “in his capacity as an attorney” on behalf of Cajun, the petition “states no causes of action against him and makes no factual allegation which supports a blame [sic] or cause of action against him.” Mr. Regan further contended that Plaintiffs’ petition was filed as a separate claim for damages which cannot be filed absent a determination by the court in the Sequestration Suit.

Plaintiffs filed a second supplemental and amending petition for damages on March 7, 2008. The only changes made therein applicable to Mr. Regan were that paragraph one of the petition was amended to name him as a defendant both “individually, and is his representative capacity of Cajun,” and to eliminate the language in paragraph nine to the effect that Mr. Re-gan had filed the Sequestration Suit “in his capacity as an attorney.”

After being reset several times for various reasons, the exception was scheduled for hearing on April 19, 2010. On April 5, 2010, counsel for Plaintiffs filed a notice of conflict into the record indicating that he had a conflict with the hearing date of the exception due to a previously set motion in St. Landry Parish. The Rnotice did not contain an order requesting that the hearing on the exception be reset. According to the transcript of the April 19, 2010 hearing, Mr. Regan appeared in proper person and, although counsel for Plaintiffs was not present, he faxed a letter to the trial court indicating that he agreed to submit the matter on written briefs. After brief argument, the trial court indicated that it would grant the exception filed by Mr. Regan. Written judgment was rendered later that day granting Mr. Regan’s exception of no cause of action and dismissing Plaintiffs’ suit against him, personally, at their cost.

Plaintiffs timely appealed and are before this court assigning the following errors:

1. The [Trial] Court erred as a matter of law in sustaining the Exception of No Cause of Action filed on behalf of Mr. Thomas Regan.
2. The Trial Court erred in ruling that an attorney is somehow immune from responsibility for damages when that attorney misrepresents or omits facts to a Judge resulting in damages.
3. Regardless, the Trial Court erred in sustaining the peremptory exception no cause of action without ordering an amendment of the pleadings when the amendment could have remedied the peremptory exception as provided for by La.Code Civ.P. art. 934.

DISCUSSION

Our supreme court discussed the exception of no cause of action in Wright v. Louisiana Power & Light, 06-1181, pp. 14-15 (La.3/9/07), 951 So.2d 1058, 1068-69 (quoting Ramey v. DeCaire, 03-1299, pp. 7-8 (La.3/19/04), 869 So.2d 114, 118-19):

Is A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.
Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131.
The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. City of New Orleans at p. 29, 640 So.2d at 253.

Did the trial court err in sustaining Mr. Regan’s Exception of No Cause of Action?

Plaintiffs contend that Mr. Regan was acting “in his owner capacity when he began to attempt to acquire property that was the subject of a lease.” Referring to their second supplemental and amended petition wherein they alleged that “Mr. Regan omitted in his Petition for Sequestration that he was aware of Mr. Savoie having the rights to the use of the two subject vehicles and as presented to the Court | appeared that the relief requested was warranted,” Plaintiffs argue that they have sufficiently alleged that Mr. Regan is liable to them for having made misrepresentations to the court and for committing ill practices. Plaintiffs submit that “[n]o corporate veil should cloister an attorney from personal responsibility” for engaging in such ill practices.

Mr. Regan counters that he was acting in a representative capacity as an attorney for Cajun, a corporation, when he filed the Sequestration Suit, a fact which Plaintiffs clearly noted in their original and supplemental petitions. Mr. Regan further submits that Plaintiffs’ claim, in their appellant brief, that he committed personal wrongdoing, was never presented to the trial court. To the extent that the Plaintiffs claim that he is guilty of fraud or misconduct, Mr. Regan argues that despite their having twice amended their petition, Plaintiffs failed to state with particularity any specific factual basis for such claim.

Applying the principles enunciated in Wright to the petitions filed in this case, we conclude that Plaintiffs failed to state a cause of action against Mr. Regan personally. Although it was not necessary for Plaintiffs to plead the theory of their case against Mr. Regan, their petitions needed to set forth the material facts upon which their cause of action against him were based. Instead of alleging any such facts, Plaintiffs’ petitions simply made unsubstantiated conclusions that Mr. Regan had somehow acted improperly and misled the court when he filed the Sequestration Suit.

In their original petition, Plaintiffs alleged that they had the right to use the Mac and Peterbuilt trucks, and they claimed that Mr. Regan acted improperly in filing |7the Sequestration Suit against them to regain possession of the trucks. It is clear to this court that Mr. Regan filed the Sequestration Suit in his representative capacity as attorney for Cajun. Plaintiffs alleged that Mr. Regan misled the court by omitting in the Sequestration Suit his knowledge that Plaintiffs had the right to use the two trucks pursuant to the Bill of Sale attached to their petition. On the other hand, Cajun attached to the Sequestration Suit two title certificates that showed that it was the registered owner of the two trucks. Nowhere in any of them petitions do Plaintiffs explain how Mr. Guillory or Rolloff acquired the right to lend them the two trucks owned by Cajun. If the Plaintiffs had any such explanation, they should have provided it in response to the Sequestration Suit and/or they should have provided it to the trial court in this matter in response to Mr. Regan’s exception of no cause of action. They failed to do so. The trial court did not err in sustaining Mr. Regan’s exception of no cause of action.

Did the trial court err in failing to allow Plaintiffs leave to amend their petition?

Citing La.Code Civ.P. art. 934, Plaintiffs allege that even if the trial court did not err in sustaining Mr. Regan’s exception of no cause of action, they should have been afforded the opportunity to amend their petition to correct any deficiencies.

A trial court is vested with discretion when deciding whether to allow amendment of the petition after it sustains a peremptory exception and it is not required to allow such amendment when to do so would be a vain and useless act. |8Broussard v. F.A. Richard & Assocs., Inc., 99-10 (La.App. 3 Cir. 5/5/99), 740 So.2d 156, writ denied, 99-1048 (La.6/4/99), 744 So.2d 625 (trial court did not abuse its discretion in not allowing plaintiff to amend her petition after it sustained defendant’s exception of no cause of action where plaintiff had already filed three supplemental and amending petitions in response to defendant’s exception). “[Louisiana Code of Civil Procedure] Article 934 does not require that the plaintiff be provided the opportunity to speculate on unwarranted facts merely for the purpose of defeating the exception. The right to amend one’s petition is qualified by the restriction that the objections to the petition be curable.” Id. at 160 (citation omitted).

Counsel for Plaintiffs did not appear at the hearing on Mr. Regan’s exception of no cause of action. Instead, according to the transcript from the April 19, 2010 hearing, he apparently faxed a letter to the trial court stating that he was willing to submit the matter on briefs. In addition, Plaintiffs have already twice amended their petition and have yet to state a valid cause of action against Mr. Regan in his personal capacity. Given the circumstances, we cannot say that the trial court abused its discretion in dismissing Plaintiffs’ suit against Mr. Regan without allowing Plaintiffs the opportunity to again amend their petition.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in its entirety. All costs of this appeal are assessed to Plaintiffs, James Ronald Savoie and Sandra Savoie.

AFFIRMED.

      . The petition alleged that Mr. Regan and Mr. Lacombe were the owners of Cajun; however, it failed to disclose any further information about the remaining defendants.

      . The Sequestration Suit does not disclose the relationship, if any, between Mr. Savoie and JPS; it simply alleged that Mr. Savoie and JPS were in possession of the trucks owned by Cajun.

      . Plaintiffs state in their appellate brief that a first supplemental and amending petition "was filed relative to incidental matters not related to the exception filed on behalf of Mr. Regan.” Moreover, we note that although Plaintiffs filed a copy of a first supplemental and amending petition for damages with the trial court by facsimile transmission on January 22, 2008, according to the appeal record, no original pleading bearing that title was ever filed into the record. Accordingly, that facsimile filing is deemed to have no force or effect. See La.R.S. 13:850. The second supplemental and amending petition was properly filed and is contained in the appeal record.

      . Although a copy of Plaintiffs’ memorandum in opposition to Mr. Regan’s exception of no cause of action is attached to Mr. Regan’s appellate brief, the record on appeal does not contain any memoranda in support of or in opposition to the exception. Because courts of appeal are courts of record, we have no authority to consider Plaintiffs' memorandum. See Murray v. Town of Mansura, 06-355 (La.App. 3 Cir. 9/27/06), 940 So.2d 832, writ denied, 06-2949 (La.2/16/07), 949 So.2d 419, cert. denied, 552 U.S. 915, 128 S.Ct. 270, 169 L.Ed.2d 197 (2007). This fact is of no moment, however, because an exception of no cause of action is to be decided on the face of the petition. See Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127.

      . Louisiana Code of Civil Procedure Article 856 provides, in part, that "[i]n pleading fraud or mistake, the circumstances constituí-ing fraud, or, mistake shall be alleged with particulai ity.

      . Louisiana Code of Civil Procedure Article 934 provides as follows:
      When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the courl. If the grounds 0f the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

      . No such letter appears in the record on appeal. However, the transcript indicates that the trial court did receive the letter after the trial judge's law clerk tried to contact Plaintiffs' attorney when the matter was called for hearing and he was not present.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Lyn BAKER v. Rogerist L. ROMERO, Et Al.
    No. 10-1125.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      John W. Pickett, Attorney at Law, Many, Louisiana, for Plaintiff/Appellant, Lyn Baker.
    David P. Bruchhaus, Mudd & Bruch-haus, L.L.C., Lake Charles, Louisiana, for Defendants/Appellees, Carol Lynn Romero, Rogerist L. Romero.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| plaintiff, Lyn Baker, appeals a judgment dismissing her petitory action against Defendants, Rogerist Romero and Carol Romero, and granting their posses-sory action on the basis that Baker did not meet her burden of proof regarding her claim of ownership of the subject immovable property while the Romeros established as a matter of law their right to possess the property. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

According to a Cash Sale Deed (the Deed) recorded on July 26, 2006, Baker acquired the “right, title and interest” in a forty-foot strip of property located in the Toledo Bend Reservoir in Sabine Parish (the Property) from six of her relatives for the purchase price of $10. Shortly thereafter, Baker, through her attorney, mailed a certified letter to the Romeros, owners of land adjacent and contiguous to the Property, to inform them that she had recently acquired the Property and would be having it surveyed in the near future. This litigation ensued after the Romeros would not allow the surveyor hired by Baker to have access to the portions of the Property contained within the land that they owned.

Baker filed a Petition for Injunctive Relief against the Romeros, seeking to enjoin the Romeros from interfering with her exercise of ownership of the Property and specifically requesting that the Romeros be ordered to refrain from interfering with Baker’s attempt to have the Property surveyed. Attached as Exhibit “A” to the petition was a description of the Property.

l2The Romeros filed an Answer and Re-conventional Demand acknowledging that they would not allow Baker’s surveyor on their property and claiming “possession and ownership of all property referenced herein,” including the land which Baker claimed to own. More specifically, the Romeros asserted that they were the title owners and possessors of ten tracts of land as described in their own Exhibit “A,” which they attached to their answer. The Romeros additionally asserted that they and their ancestors in title had possessed the Property without interruption for “much longer than” one year. The Rome-ros claimed that Baker had trespassed on the Property, and they requested that she and her agents, assigns, employees, and successors in title be prevented from using the Property and that they be awarded damages for the loss of use of the Property. In addition, the Romeros requested that the trial court render a judgment recognizing their right to possession of the Property.

Baker answered the Romeros’ reconven-tional demand in the form of a general denial. Thereafter, she filed a motion for summary judgment seeking a judgment recognizing her as owner of the Property, ordering the Romeros to vacate the premises, and dismissing the Romeros’ claims against her with prejudice. The motion was originally set for hearing; however, the trial court minutes reflect that the hearing was reset after the trial court was informed that the Romeros had not been served with the motion. The Romeros later filed a memorandum in opposition to Baker’s motion. The minutes from August 13, 2008, reflect that after taking arguments, the trial court denied Baker’s motion for summary judgment. The minutes further reflect that the Romeros agreed to allow Baker to survey the Property at her expense.

Baker filed a motion to amend and supplement her original petition. Therein, she stated that the Property had been surveyed and that a plat had been prepared and ^provided to the parties. According to Baker, the survey and plat reflected that the Romeros had and continue to trespass on land owned by her and that they had erected and/or moved structures onto the Property without her consent. Baker sought a judgment recognizing her as the owner of the Property and all structures placed thereon by the Romeros, both movable and immovable. Alternatively, Baker prayed that the Romeros be ordered to remove the structures at their expense. The Romeros answered Baker’s motion to amend and supplement in the form of a general denial.

A bench trial took place on Baker’s peti-tory action. After hearing closing arguments, the trial court invited the parties to submit post-trial memoranda. In a written judgment, the trial court found that:

1. Plaintiff did not meet her burden of proof to establish ownership of the subject immovable property as a matter of law,
2. Defendants have been in statutory possession of the subject property since 1988, and
3. Plaintiffs Motion for Summary Judgment promptly and properly converted Defendants’ possessory action pleaded in their Reeonven-tional Demand to a viable and justi-ciable petitory action.

Accordingly, judgment was rendered in favor of the Romeros and against Baker dismissing her petitory action. The Rome-ros’ possessory action was granted because the trial court found that they had established as a matter of law the right to possess the Property.

Baker timely filed a motion for new trial wherein she argued that due to the Rome-ros’ last minute abandonment of their claims of ownership of the Property, her burden of proof changed from that of proving better title than that of the Romeros to proving title good against the world. As a result, she requested that the case be reopened to allow her to introduce additional documentary evidence in order to meet 1¿her newly heightened burden of proof. The Romeros opposed the motion, contending that Baker Was made aware of their possessory action when they filed their reconventional demand against her, and, thus, she had ample opportunity to offer the evidence necessary to meet her burden of proof.

Following a hearing, the trial court granted Baker’s motion for new trial. The matter was retried at which time Baker entered the entire record and all testimony from the original trial into evidence, together with additional documentary evidence which she claimed established ownership of the Property back to the sovereign. The Romeros argued that Baker' had again failed to meet her burden of proof. Following the hearing, the matter was taken under advisement.

In a written judgment signed on July 19, 2010, the trial court found that Baker did not meet her burden of proof regarding her claim of ownership of the Property as a matter of law. As a result, the trial court affirmed the prior judgment rendered on August 18, 2009; rendered judgment in favor of the Romeros and against Baker, dismissing Baker’s petitory action; granted the Romeros’ possessory action on the basis that they had established them right to possess the Property as a matter of law; and ordered that costs be equally divided between the parties.

Baker is now before this court on appeal, asserting the following assignments of error. First, Baker claims that the trial court erred in failing to make the Romeros the plaintiffs in the petitory action concerning the Property by virtue of them answer and reconventional demand wherein they pled possession and ownership of the Property. Plaintiff further claims that the Romeros’ possession claims were waived upon their making a claim of ownership. Accordingly, Baker submits that the trial court should have granted her motion for summary judgment when the Romeros |5failed to present any proof of title in opposition to her motion. Second, Baker asserts that although she should not have had to bear the burden of proof in the petitory action, she did establish her title in an unbroken chain back to Wyatt Speight, a man whom the same trial court declared to be the judicial owner of the same land in 1919. Thus, according to Baker, the trial court did not have to apply the harsh evidentiary standard set forth in Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974). Instead, the trial court should have applied the supreme court’s holding in Badeaux v. Pitre, 382 So.2d 954 (La.1980) and held that Baker met her burden of proof because she established title that was apparently good. Third, Baker contends that even if she was the proper plaintiff in the petitory action and the Pure Oil standard was properly applied, the trial court incorrectly read Pure Oil to include “a requirement that every title chain in a petitory action trace itself to a government transaction.” Had the trial court correctly applied Pure Oil, Baker argues, she would have been entitled to a declaration of her ownership of the Property because she proved better title to the Property than the Romeros, who admittedly have no title to it.

DISCUSSION

Louisiana Code of Civil Procedure Article 3651 defines a petitory action as “one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership.” Thereafter, La. Code Civ.P. art. 3653 provides that:

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
|fi(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

On the other hand, the code of civil procedure defines a possessory action as “one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.” La.Code Civ.P. art. 3655. “In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue.” La. Code Civ.P. art. 3661.

Fortunately, the Louisiana Code of Civil Procedure contains provisions to govern situations where the parties involved in a matter concerning the ownership of or real rights to immovable property alter their positions during the course of litigation involving the property. Louisiana Code of Civil Procedure Article 3657 provides, in pertinent part, that:

The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the possessory action is abated.
When, except as provided in Article 3661(l)-(3), the defendant in a possesso-ry action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.

In Pure Oil, 294 So.2d 797, the issue concerned the plaintiffs burden of proof in a petitory action when the defendant is in possession of the property in controversy. The supreme court held that those claiming title or ownership of 17disputed land in the possession of others are “required to prove valid record title, to show title good against the world without regard to the title of the party in possession. C.C.P. Arts. 3653, 3654.” Id. at 799.

Badeaux, 382 So.2d 954, likewise involved a petitory action brought by a claimed owner of a tract of land against a person possessing the land; however, the defendant was found to have been a precarious possessor in that he possessed the land not on his own behalf but rather on behalf of and with the permission of another. See La.Civ.Code art. 3437. That being the case, the supreme court held that the plaintiff had met his burden of proof in his petitory action by proving that he had acquired the tract of land by thirty-year acquisitive prescription. Id. In doing so, the supreme court noted:

“Although it be true that the plaintiff in a petitory action, must succeed- on the strength of his own title, and not on the weakness of his adversary’s yet, when the latter has no title at all, he cannot, as a trespasser, take advantage of any defect in the former’s muniments of title. In such cases, a title .apparently good, is all that is required to maintain the petitory action.” Zeringue v. Williams [,] 15 La.Ann. 76 [(La.1860) ].

Id. at 956.

Assignment of Error Number One

Baker contends that the trial court erred in failing to make the Romeros the plaintiffs in the petitory action after they asserted possession and ownership of the Property in their answer and reconven-tional demand. In addition, she insists that the Romeros’ possession claims were waived pursuant to La.Code Civ.P. art. 3657 when they made a claim of ownership of the Property. The Romeros counter that after the Property was surveyed, they acknowledged that they no longer had a claim of ^ownership and instead were claiming possession of the Property. Moreover, the Romeros claim that because Baker did not assert in the trial court that they should have been the plaintiffs in the petitory action, she should be precluded from asserting that argument for the first time on appeal.

In their answer and reconventional demand, the Romeros assert that they are the title owners of ten tracts of land and that they ánd their ancestors in title have possessed the Property for well over one year without interruption. Their prayer for relief requests that judgment be rendered recognizing their right to possession of the Property. Moreover, the Romeros stipulated at the June 19, 2009 hearing that they did not have title to the Property and were instead alleging good faith possession of the Property.

Ultimately, the Romeros did not claim ownership of the Property and thus did not waive their possession claims. In addition, because Baker did not allege in the trial court that the burden of proof in the petitory action should have shifted to the Romeros, she cannot make that argument for the first time on appeal. See Uniform Rules—Courts of Appeal, Rule 1-3; Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La.App. 3 Cir. 8/9/95), 661 So.2d 1027, writ denied, 95-2942 (La.3/29/96), 670 So.2d 1238. The trial court was correct in not making the Romeros the plaintiffs in the petitory action. Baker’s first assignment of error lacks merit.

Assignment of Error Number Two

Baker next contends that the trial court erred in applying the Pure Oil standard and requiring that she prove title good against the world. She argues that the trial court should have instead applied the La.Code Civ.P. art. 3657 standard and simply required that she prove title better than that of the Romeros, as was done in Badeaux, |9382 So.2d 954, a supreme court decision rendered after Pure Oil. The Romeros insist that the trial court properly and appropriately applied the Pure Oil standard and that Badeaux is not applicable to this matter. In support of their argument, they rely on Aymond v. Smith, 476 So.2d 1081, 1084 (La.App. 3 Cir.1985), wherein this court held that:

When the defendant in the petitory action ... is in possession, the plaintiff in the petitory action ... must rely on the strength of his own title and not the weakness of that of his adversary, and the title of the defendant in the petitory action is not at issue until the plaintiff has proved valid title in himself.

Aymond, which was decided by this court eleven years after the supreme court handed down the Pure Oil decision and four years after it handed down the Ba-deaux decision, began as a possessory action brought by a plaintiff who claimed that the defendant had disturbed his possession of a one acre tract of land. In answer to the petition, the defendant denied the plaintiffs possession, claiming that he owned the land through title or thirty-year acquisitive prescription. We noted that, in claiming ownership of the disputed property, the defendant converted the possessory action into a petitory action in which he became the plaintiff with the burden of proving “ownership either by an unbroken chain of valid transfers from the sovereign or an ancestor in title common with the defendant or by acquisitive prescription.” Id. (citations omitted). We further noted that “[i]f the plaintiff in the petitory action should fail and be unable to make out his title good against the world, his demands must be rejected and his case dismissed even if the defendant in the petitory action has no title to the property.” Id. at 1084 (citing Garrett v. Ernest, 369 So.2d 713 (La.App. 1 Cir.), writ denied, 371 So.2d 1340 (La.1979); Weaver v. Hailey, 416 So.2d |10311 (La.App. 3 Cir.1982); Crown Zellerbach Corp. v. Heck, 407 So.2d 770 (La.App. 1 Cir.1981); and Osborn v. Johnston, 308 So.2d 464 (La.App. 3 Cir.), aff'd, 322 So.2d 112 (La.1975)).

Considering our prior decision in Ay-mond, we cannot conclude that the trial court erred in requiring Baker to prove title good against the world. Moreover, we agree that Baker’s reliance on Badeaux is misplaced given the fact that the defendant in that petitory action was a precarious possessor who possessed the disputed property with the permission of its owner. Here, Mr. Romero testified that when he purchased the tract of land in 1987, he believed that he was getting all of the property within certain boundaries; there were no markers around the forty-foot strip, i.e., the Property now at the center of this litigation. Mr. Romero further testified that no one had ever given him any indication that they owned the Property until he got the letter from Baker in 2006 seeking to survey the Property which she claimed to have recently purchased. Baker’s second assignment of error is without merit.

Assignment of Error Number Three

Finally, Baker asserts that even if she was the proper plaintiff in the petitory action and Pure Oil was properly applied, the trial court erred by reading into it a requirement that her title chain be traceable to a government transaction. The Romeros counter that the trial court properly applied the law of Pure Oil and Ay-mond and correctly held that the July 8, 1885 sheriffs tax sale deed upon which Baker relied was “not a transfer of title ‘with a sovereign grant as its origin.’”

|nIn dismissing Baker’s petitory action and granting the Romeros’ possessory action on the basis that they established their right to possess the Property, the trial court, referring to the burden established in Pure Oil, noted the Latin phrase “Dura Lex, Sed Lex” which means “the law is harsh, but it is the law.” Nevertheless, the trial court recognized that although it had been heavily criticized, Pure Oil remained the law of this state and it was “duty-bound to apply it.” Citing Ay-mond, the trial court reasoned that “[a] tax sale bespeaks prior private ownership, thus the evidentiary destination to a sovereign grant, the originating transfer upon which all title to the tract is founded, has not been reached.” The trial court went on to state:

Ownership back to a common ancestor in title, another route to prove ownership, does not apply here as Defendants claimed only possession of the subject tract, thus no possibility of a common author. The remaining alternative to prove ownership, acquisitive prescription, was neither pleaded nor argued and the court is prohibited from doing so sua sponte. La.Civ.Code art. 3452.

As noted by the trial court, Baker could have proven her claim of ownership of the Property through several routes other than by tracing her chain of title back to the sovereign, but for the reasons that it outlined, she was unable to do so. We are convinced that the trial court properly applied the law to this matter and that Baker simply failed to meet the requisite burden of proof. Baker’s final assignment of error lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in entirety. All costs of this appeal are assessed against the plaintiff, Lyn Baker.

AFFIRMED.

      . Baker’s husband, Tommy Baker, who was also listed as a purchaser on the Deed, died before Baker initiated this litigation.

      . Louisiana Civil Code Article 3437 provides: "The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession.”

      . We determined that the legislature did not intend to overrule Pure Oil "when it adopted Civil Code articles 531 and 532 in 1979 and amended Code of Civil Procedure article 3653(1) in 1981.” Weaver, 416 So.2d at 316.


author: LAMAR, Justice,

text:
    Lisa Jo CHAMBERLIN v. STATE of Mississippi.
    No. 2008-DR-01690-SCT.
    Supreme Court of Mississippi.
    Nov. 10, 2010.
    Rehearing Denied March 24, 2011.

      Elizabeth Unger Carlyle, Kate Margolis, Michael Bentley, Jackson, attorneys for appellant.
    Office of Attorney General by Pat McNamara, attorney for appellee.
   LAMAR, Justice,

for the Court:

¶ 1. Lisa Jo Chamberlin was convicted on two counts of capital murder and sentenced to death. Chamberlin’s conviction and sentence were affirmed by this Court on direct appeal in Chamberlin v. State, 989 So.2d 320 (Miss.2008), cert. denied, — U.S. -, 129 S.Ct. 908, 173 L.Ed.2d 122 (2009).

¶2. Chamberlin has filed a motion for post-conviction-relief, asking this Court to grant her leave to proceed in the trial court, asserting the following grounds for relief:

I. That she was denied effective assistance of counsel before and during the guilt-innocence phase of her trial.
II. That she was denied effective assistance of counsel before and during the penalty phase of her trial.
III. That the State violated Brady v. Maryland when it failed to produce a letter written by her code-fendant, Roger Gillett, that contradicted the State’s theory that she was the instigator of the crime.
IV. That she will be denied her Eighth Amendment right to be free from cruel and unusual punishment if she is executed by lethal injection, because the current method of lethal injection creates a significant likelihood of a needlessly painful and prolonged death.

After review, we find that Chamberlin’s claims lack merit, and we therefore deny her motion for leave to proceed in the trial court.

ANALYSIS

¶ 3. This Court has recognized that post-conviction-relief actions have become part of the death-penalty appeal process. Jackson v. State, 732 So.2d 187, 190 (Miss.1999). The standard of review for capital convictions and sentences is “one of ‘heightened scrutiny’ under which all bona fide doubts are resolved in favor of the accused.” Flowers v. State, 773 So.2d 309, 317 (Miss.2000) (citations omitted). “This Court recognizes that 'what may be harmless error in a case with less at stake becomes reversible error when the penalty is death.’ ” Id.

1. Whether Chamberlin was denied effective assistance of counsel before and during the guilt-innocence phase of her trial.

¶ 4. The test for ineffective assistance of counsel is well-settled. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on an ineffective-assistance-of-counsel claim, a defendant must first prove that his counsel was deficient, which requires showing that “counsel made errors so serious that [he or she was] not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Secondly, a defendant must prove that the “deficient performance prejudiced the defense,” which requires showing that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Absent both showings, a defendant may not prevail on his claim that his counsel was ineffective. Id.

¶ 5. This Court must “ ‘strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. In other words, defense counsel is presumed competent.’ ” Liddell v. State, 7 So.3d 217, 219-20 (Miss.2009). And even where professional error is proven, this Court must determine if there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991).

¶ 6. Chamberlin alleges that her counsel was deficient in four main areas during the guilt-innocence phase of her trial. She first asserts that her counsel was deficient during jury selection when he failed to rebut the State’s proffered reasons for peremptory strikes, failed to raise a gender-based Batson challenge, failed to argue on direct appeal that the trial court’s acceptance of pretextual strikes was plain error, and failed to question jurors to determine whether they were qualified to serve on the jury in spite of their opposition to the death penalty. Second, she asserts that her counsel was deficient when he failed to develop and present evidence regarding her methamphetamine withdrawal and its effect on her during interrogation. Third, she asserts that her counsel was deficient when he failed to introduce evidence that she was dominated by her codefendant, Roger Gillett. Finally, she asserts that her counsel was deficient when he failed to object to the testimony of Vanessa Stringfellow.

A. Jury Selection

¶ 7. When addressing a Batson challenge, a trial court should employ a three-step procedure:

(1) the defendant must make out a pri-ma facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; (2) once the defendant has made out a pri-ma facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible, race-neutral justifications for the strikes; and (3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. The burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext for racial discrimination.

Pruitt v. State, 986 So.2d 940, 942-43 (Miss.2008) (internal citations omitted).

Failure to rebut proffered reasons for strikes against African-Americans

¶8. During voir dire, the prosecutor used eight of his thirteen peremptory strikes against African Americans. Only two African-American jurors ultimately were seated. Chamberlin’s defense counsel made a Batson challenge. Although the trial judge expressed doubt that defense counsel had met his burden of making a prima facie showing of discrimination, he asked for a response from the prosecutor. The prosecutor responded with the various reasons for his strikes of the eight African-American jurors, and the trial judge found that all of the reasons were race-neutral. Chamberlin’s defense counsel requested that he be allowed to rebut the reasons offered by the prosecutor, and the trial judge allowed him to do so.

¶ 9. Chamberlin argues that, while her defense counsel did request an opportunity to show that the proffered reasons were pretextual, he failed to rebut .the specific reasons offered by the prosecutor for four of the eight struck jurors. Further, he did not present any argument concerning the remaining four struck jurors.

¶ 10. In Puckett v. State, 788 So.2d 752, 763 (Miss.2001), we said:

One of the recognized indicia of pretext is “disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge.” Mack v. State, 650 So.2d [1289] at 1298 [ (Miss.1994) ]. This Court has explained that while such use of challenges . is a factor which may be considered by the trial court, where multiple reasons led to the strike of the State to strike one juror, the existence of another juror with one of his or her individual characteristics does not demonstrate that the reasons assigned were pretextual.

(Emphasis added.)

¶ 11. Chamberlin claims that defense counsel should have performed a comparative jury analysis, which would have demonstrated disparate treatment of the jurors, indicating that the State’s strikes were pretextual. But a thorough review of the record in this case, including the jury questionnaires provided by Cham-berlin, discloses that each of the African-American jurors struck had at least one response in his or her jury questionnaire that differentiated him or her from the white jurors who were accepted by the State. Therefore, we are unable to find disparate treatment of the struck jurors. And because we find no disparate treatment and no other evidence of pretext, we cannot say that Chamberlin’s defense counsel was deficient in this stage of the jury-selection process. This issue is without merit.

Failure to make a gender-based Batson challenge

¶ 12. During voir dire, the prosecutor used nine of his thirteen peremptory strikes against females. Chamberlin argues that her defense counsel was deficient because he failed to make a gender-based Batson challenge. She argues that her counsel should have been “keenly aware and acutely concerned about a pattern of strikes against prospective jurors of the same gender as his client.” But Chamberlin fails to mention that the final jury composition consisted of eight females, four males, and two female alternates. There is simply no evidence to support a claim of gender-based discrimination. This issue is without merit.

Failure to argue plain error on direct appeal

¶ 13. Chamberlin argues that her counsel should have asserted on direct appeal that the trial court’s allowance of the prosecutor’s strike against one or more of the African-American jurors was plain error. She asserts that there is a reasonable probability that, had counsel made the comparative-analysis argument to this Court, the outcome would have been different and she would have been entitled to a new trial. We disagree.

¶ 14. As discussed above, after a thorough review of the record, we find no evidence of pretext in the prosecution’s strikes. Thus, Chamberlin’s counsel’s failure to argue plain error on appeal was not deficient.

Failure to question jurors about their views on the death penalty

¶ 15. During voir dire, the trial court asked if any members of the venire would be unable to set aside their personal feelings about the death penalty and return a sentence of death if the evidence justified it. Some venire members indicated that they would have a problem setting aside their personal feelings, and the court struck several of them for cause. Cham-berlin argues that her defense counsel was deficient because he “failed to explore with at least some of these venirepersons whether they were actually qualified to serve”—in other words, he failed to “rehabilitate” them after they stated their initial opposition to the death penalty.

¶ 16. Under Strickland, Cham-berlin must show that the failure to attempt to “rehabilitate” these venire members resulted in error so serious as to deprive her of a fair trial and reliable result. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This Court clearly has stated that a juror may be challenged for cause based on his views about capital punishment when “ ‘those views would substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ Evans v. State, 725 So.2d 613, 656 (Miss.1997) (citations omitted) (emphasis added). As mentioned above, several of the venire members cited by Chamberlin clearly indicated that their feelings about the death penalty were so strong that they would not be able to set them aside. Chamberlin’s bare allegations that she ended up with a “hanging jury” do not suffice. This issue is without merit.

B. Failure to Develop Evidence Regarding Effect of Methamphetamine Withdrawal and Interrogation Techniques

¶ 17. Chamberlin argues that her defense counsel knew that she had been abusing methamphetamine at the time of her arrest, and that he should have consulted an expert about the possible effects of her methamphetamine addiction and withdrawal on the voluntariness of her confessions. Further, she argues that counsel erred in not consulting an expert or presenting evidence about the effects of police interrogation techniques on her demeanor in her videotaped statements.

¶ 18. On direct appeal, this Court thoroughly examined the voluntariness and admissibility of Chamberlin’s statements to police and found no error. See Chamberlin, 989 So.2d at 330-36. Thus, we cannot say that Chamberlin’s counsel was deficient for failing to consult an expert about the possible effects of her methamphetamine addiction. Additionally, Chamberlin has failed to show how she was prejudiced by the lack of evidence of the possible effects of her methamphetamine addiction, and we cannot say that such evidence deprived Chamberlin of a fair trial or produced an unreliable result.

C. Failure to Introduce Evidence that Chamberlin was Dominated by Gil-lett

¶ 19. Chamberlin argues that her defense counsel should have presented evidence that she was dominated by her code-fendant, Roger Gillett — that she “was a follower, not a leader.” Further, she argues that her counsel could have presented evidence that her intelligence is well below average and that she suffers from memory impairment.

¶ 20. We disagree with Chamberlin’s claims that, had her defense counsel elicited this testimony, there is a reasonable probability that the jury would have come to a different conclusion. Chamberlin confessed numerous times and to several people, but never stated that Gillett made her do anything, or that she was in fear of him for any reason. From our review of the record, it does not appear that Chamberlain was “dominated” by anyone, but rather was a willing participant in the robbery and murder of the two victims.

¶ 21. Moreover, the decision whether to introduce evidence — if any existed — that Chamberlin was dominated by Gillett falls directly into the ambit of trial strategy. See Cole v. State, 666 So.2d 767, 777 (Miss.1995) (“Complaints concerning counsel’s failure to file certain motions, call certain witnesses, ask certain questions, and make certain objections fall within the ambit of trial strategy.”). And this Court has clearly stated that there is a strong presumption that counsel’s trial strategy was sound. “‘In considering a claim of ineffective assistance of counsel, an appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. In other words, defense counsel is presumed competent.’ ” Liddell v. State, 7 So.3d 217, 219-20 (Miss.2009) (citation omitted). Thus, we find this issue is without merit.

D.Failure to Object to the Testimony of Vanessa Stringfellow

¶22. Vanessa Stringfellow was incarcerated in the Forrest County Jail with Chamberlin for a short time. She testified that she had overheard Chamberlin say that “after [she and Gillett] cut [the male victim’s] throat, we propped him up on the couch, and his head was hanging to one side, and we proceeded to have sex in front of the corpse and it was the greatest sex that [we] had ever had and it was an extreme adrenaline rush.” Later, in closing arguments, the prosecutor asked the jury to give Chamberlin an “adrenaline rush.”

¶ 23. Chamberlin asserts that defense counsel was deficient because he failed to object to Stringfellow’s prejudicial testimony. This assertion is incorrect. Chamber-lin’s defense counsel filed a motion in li-mine to exclude any statements made by Chamberlin to “fellow inmates,” but the trial court denied the motion. Thus, Chamberlin’s defense counsel was not deficient for failing to object to Stringfellow’s testimony, as he attempted to exclude her testimony before trial began.

¶ 24. We find that all of Chamberlin’s claims regarding ineffective assistance of counsel during the guilt phase are without merit. Chamberlin has failed to show error on the part of her trial counsel, nor has she shown a reasonable probability that the results of the trial would have been different but for the allegations of error.

II. Whether Chamberlin was denied effective assistance of counsel before and during the penalty phase.

¶ 25. Chamberlin argues that her trial counsel was deficient before and during the penalty phase of her trial, because he conducted only a minimal investigation of her background in search of mitigating evidence. Chamberlin argues that, if all the evidence and additional witnesses found during post-conviction investigation had been presented, there was a reasonable probability of a different outcome at the penalty phase.

¶ 26. “To assess the probability [of a different outcome under Strickland], we consider the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding — and reweigh it against the evidence in aggravation.” Sears v. Upton, — U.S. -, 130 S.Ct. 3259, 3266, 177 L.Ed.2d 1025 (2010). The United States Supreme Court has stated that there “is no prejudice when the new mitigating evidence ‘would barely have altered the sentencing profile presented’ to the decisionmaker....” Id. at 3266.

¶ 27. During sentencing, the jury heard testimony from defense expert Dr. Beverly Smallwood of the sexual and physical abuse in Chamberlin’s family — by her mother, her half-brother, her biological father, her stepfather and a fourth-grade teacher. The jury heard that Chamber-lin’s mother had bipolar disorder, was a severe alcoholic, and was physically abusive. The jury heard that Chamberlin frequently engaged in abusive relationships with men and that she was often used and abused by men whom she dated. Specifically, the jury heard that Roger Gillett had even tried to drown Chamberlin, and that her reaction was to try to make him feel better about his actions. The jury heard about Chamberlin’s severe drug addiction, and that she had started drinking at age twelve and using methamphetamine at age thirteen. The jury heard that Chamberlin had post-traumatic stress disorder, and that she met the criteria for borderline personality disorder.

¶ 28. After detailing and providing numerous examples of Chamberlin’s behavior in relation to the problems mentioned above, Dr. Beverly Smallwood stated the following regarding the day of the murders:

I guess the way I would sum it up is as an accumulative effect and growing mental and emotional disturbance on the day that these crimes were committed and the days thereafter. This isn’t a very clinical term, but I’ll just say it this way and I think we’ll all understand it. Lisa was a psychological mess. And it had grown starting in her early childhood with things that she couldn’t help but then choices that she made over time and not having the tools, having never had role models or a support system and having not taken some of the opportunities she did have. When she got to that day, the day that these crimes were committed, she was a life spun out of control.

¶ 29. Dr. Smallwood also testified that, when Chamberlin was not on drugs and not involved in abusive relationships, she “did not see a person who is interpersonally callous.” Dr. Smallwood testified that some of Chamberlin’s most fulfilling times were when she was “working in helping roles,” like during her employment at a nursing home and as a private caregiver where she “attended to [those] people with love and care” and was “well-liked.” Dr. Smallwood also gave examples of Cham-berlin’s recent incarceration during which she devoted her time to helping other inmates and jailers. Finally, Dr. Smallwood testified that, if Chamberlin were sentenced to life without parole, she would “take advantage of the opportunities that were in prison to continue to grow herself as well as then to essentially serve as a warning to others and to help them along the way.”

¶ 30. The mitigation evidence presented to this Court in Chamberlin’s post-conviction petition is essentially the same as the testimony presented during the penalty phase. While it is true that the mitigation evidence uncovered during post-conviction investigation is more detailed than that presented at trial, the jury was made aware of all of the abuse and addiction in Chamberlin’s life. We cannot say that Chamberlin was prejudiced, as the additional mitigating evidence would, if anything, “ ‘barely have altered the sentencing profile presented’ to the decisionmaker....’ ” Sears, 130 S.Ct. at 3266.

III. Whether the State violated Brady v. Maryland when it failed to produce a letter written by Chamber-lin’s codefendant, Roger Gillett.

¶ 31. Chamberlin argues that the prosecution’s failure to disclose a “favorable” letter written by Roger Gillett violated the rule pronounced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. To prove a Brady violation, a defendant must show, among other things, that “had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.” Thorson v. State, 994 So.2d 707, 720 (Miss.2007).

¶ 32. Gillett’s letter contained the following language that Chamberlin asserts is exculpatory:

I believe this is a blessing in disguise ... I don’t pass on any blame and am not sad about my situation. The burden I have put on the ones I love is the only part I regret but the burden is a constant reminder of my families [sic] love for me. Not so much directly but by the way you treat Lisa. Although we know its [sic] to keep her from burning me but in the process of self-preservation to keep her from burning herself as well. If she keeps quiet and takes no deals we will be set free.

¶ 33. We question Chamberlin’s claim that this letter is exculpatory. Although she argues that it would have contradicted the prosecution’s theory that she was the instigator of the crime, it seems, at best, to show merely that Gillett wanted her to remain silent about the crime. But more importantly, we find that overwhelming evidence existed to support the jury’s verdict, and the introduction of this vague letter was highly unlikely to affect the outcome. Thus, we find no “reasonable probability” that, had the letter been introduced, the outcome would have been different.

IV. Whether Chamberlin will be denied her Eighth Amendment right to be free from cruel and unusual punishment if she is executed by lethal injection.

¶ 34. Chamberlin failed to make any argument regarding the method of execution on direct appeal, and, therefore, the claim is barred. See Spicer v. State, 973 So.2d 184, 206 (Miss.2007) (“It is Spi-cer’s contention that execution by lethal injection constitutes crael and unusual punishment. This is the first time Spicer has raised this issue, and it was capable of being raised on direct appeal. The issue is now procedurally barred from further consideration on collateral appeal.”). But see Bennett v. State, 990 So.2d 155, 160 (Miss.2008) (“Bennett next argues that death by lethal injection violates his First- and Eighth-Amendment rights under the U.S. Constitution. Although Bennett failed to raise this issue on direct appeal, we do not hold that it is procedurally barred from further review on collateral appeal.”).

¶ 35. Procedural bar notwithstanding, this Court already has addressed this issue on the merits and held unequivocally that Mississippi’s method of lethal injection does not violate the Eighth Amendment. In Bennett v. State, 990 So.2d 155 (Miss.2008), this Court stated:

If differences exist between Mississippi’s execution protocols and those used in Kentucky, then, the inquiry is whether Mississippi’s lethal-injection protocol meets Constitutional muster in light of this recent Supreme Court decision. The Fifth Circuit, when considering inmate Dale Leo Bishop’s Eighth-Amendment challenge to Mississippi’s lethal-injection procedures, recently announced that “Mississippi’s lethal injection protocol appears to be substantially similar to Kentucky’s protocol that was examined in Baze [v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) ].” Walker v. Epps, 2008 WL 2796878 at *3, 2008 U.S.App. LEXIS 15547 at *3 (5th Cir. Miss. July 21, 2008). We agree with the Fifth Circuit’s analysis, and hold that Bennett’s Eighth Amendment challenge to the lethal injection protocol in Mississippi is without merit.

Bennett, 990 So.2d at 161. See also Goff v. State, 14 So.3d 625, 665 (Miss.2009) (“Goffs claim that Mississippi’s method of inflicting death by lethal injection constitutes cruel and unusual punishment was dispositively rejected in favor of the State by the United States Supreme Court’s holding in Baze v. Rees and by this Court’s holding in Bennett v. State.”).

CONCLUSION

¶ 36. Based on the foregoing, we find that Chamberlin’s claims lack merit, and her motion for leave to proceed in the trial court is denied.

¶ 37. PETITION FOR POST-CONVICTION RELIEF DENIED.

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

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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

      . The prosecutor used seven of his twelve peremptory strikes against African-American venire members, and he used his only peremptory strike during the selection of alternate jurors against an African American.

      . We note that the State tendered a total of four potential African-American jurors, two of whom the defendant struck. See Chamberlin, 989 So.2d at 339.

      . The trial judge stated: "Due to the make-up of the panel, I’m not confident that the defense has made the prima facie case, has met [its] initial burden...."

      . Defense counsel’s rebuttal consisted of statements such as "this is a man who ... struck me as being someone who would be a very appropriate juror.” He did not attempt to counter the specific reasons offered by the prosecutor.

      . The prosecutor used eight of his twelve peremptory strikes against female venire members, and he used his only peremptory strike during the selection of alternate jurors against a female.

      . Dr. Smallwood was appointed by the trial court to "investigate any factors in Lisa Jo Chamberlin's life or in her psychological or mental or emotional state that might relate to mitigation in understanding her mental state and how she got there, anything relating to mitigation in this case.” Dr. Smallwood testified that she conducted more than twenty hours of clinical interviews with Chamberlin, performed psychological tests and interviewed several collateral witnesses during the course of her evaluation.


author: DICKINSON, Justice,

text:
    ESTATE OF Cynthia Gilkey WALLACE, Deceased, by Louis M. WALLACE v. Emad H. MOHAMED, M.D., Bristol-Myers Squibb Co. and Sanofi-Synthelabo, Inc.
    No. 2008-CT-01334-SCT.
    Supreme Court of Mississippi.
    Feb. 17, 2011.

      Shirley C. Byers, Jackson, attorneys for appellant.
    Diane V. Pradat, L. Carl Hagwood, Jackson, attorneys for appellees.
   DICKINSON, Justice,

for the Court:

¶ 1. After he was sued by a deceased woman’s estate, Dr. Emad Mohamed moved to intervene in the estate proceedings, claiming that the estate administrator, Louis Wallace, may not have been legally married to the deceased. The chancellor allowed the intervention, considered the evidence, and removed Wallace as the administrator, replacing him with the chancery court clerk. The Court of Appeals reversed, holding that Dr. Mohamed did not have standing to intervene, and that, even if he did, the chancellor had erred in removing Wallace as administrator.

FACTS

¶ 2. When Cynthia Gilkey Wallace died, she left two children: J’Bria Iyalla and Christopher Wallace. Louis Wallace, claiming to be Gilkey’s husband, opened an estate, was appointed administrator, and filed a wrongful-death suit against Dr. Emad Mohamed and others.

¶ 3. Dr. Mohamed filed a motion to intervene and to remove Wallace as administrator, claiming Wallace was not legally married to Gilkey at the time of her death. In support of his petition, Dr. Mohamed presented a marriage license issued to Gil-key and Keith Magee; a copy of Gilkey’s and Wallace’s marriage certificate; Gil-key’s Complaint for Divorce from Magee; and a December 17, 1991, chancery court order, dismissing Gilkey’s Complaint for Divorce for failure to prosecute.

¶ 4. Additionally, Dr. Mohamed presented Iyalla’s deposition testimony that, although Gilkey did later get a divorce from Magee, it was granted after Gilkey’s marriage to Wallace. Iyalla also testified that Gilkey had told Wallace her marriage to Magee had not ended in divorce. Gilkey’s mother, Bertha Gilkey, also testified that Gilkey had been married to Magee, and that Wallace was aware of that fact. Wallace testified that, to his knowledge, when he married Gilkey, she had no marriages prior to theirs.

¶ 5. The chancellor granted Dr. Mohamed’s motion to intervene and removed Wallace as administrator of Gilkey’s estate, replacing him with the chancery court clerk, Lisa Neese.

¶ 6. Wallace appeals, raising the following two issues:

1. Whether Dr. Mohamed — whose only interest in the estate matter was that the estate had sued him — had standing to intervene under Mississippi Rule of Civil Procedure 24.
2. Whether the chancellor abused his discretion in removing Wallace as administrator.

¶ 7. Because we conclude that the chancellor did not abuse his discretion in removing Wallace as administrator, and since Dr. Mohamed’s intervention was for the limited purpose of challenging Wallace’s suitability as administrator, the intervention issue is moot and we decline to address it.

ANALYSIS

¶ 8. “[A] chancellor has a large discretion in the selection of the person to be appointed administrator of an estate except in cases made mandatory by the statute.” “Appointments made mandatory by statute are those involving the husband, wife, or distributees because only those persons have a legal right to be appointed; as regards all others, the appointments lie within the discretion of the chancery court.” Because “the chancery court is given wide discretion in the appointment and revocation of administrators, within the limits of the law,” if Wallace and Gilkey were not legally married, Wallace has no statutory right to administer Gilkey’s estate. Moreover, “we do not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous.”

¶ 9. The Court of Appeals held that the chancellor had abused his discretion by replacing Wallace as administrator because (1) the chancellor did not find that Wallace had committed fraud on the court, (2) the chancellor did not explain why he felt Wallace was not qualified to serve as administrator, and (3) the chancellor did not explain why he seemed to be trying to appoint a “disinterested third party.”

¶ 10. The Court of Appeals neglected to explain why a finding of fraud is relevant, or why the chancellor was wrong to try to appoint a disinterested third party, assuming that was actually his intention. With regard to Wallace’s suitability to serve as administrator, the Court of Appeals imper-missibly reweighed the evidence to arrive at an alternative conclusion, directly contradicting the deferential standard of review governing the issue.

¶ 11. In essence, Dr. Mohamed argues that Wallace falsely represented to the court that he was Gilkey’s husband. The Court of Appeals, looking at the same evidence reviewed by the chancellor, concluded that there was “insufficient evidence to support the chancery court’s implicit finding that Wallace was not Gilkey’s legitimate spouse.” We disagree. Presented with the documents and deposition testimony, the chancellor was well within his discretion to conclude that Wallace was not Gilkey’s husband at the time of her death, and therefore not statutorily entitled to appointment.

¶ 12. The Court of Appeals, after citing Estate of Erwin v. Hodge for the proposition that a marriage raises the presumption that any prior marriage ended in divorce, quoted the following language from that case:

The practical course of proof in such a case would be to show where each party to the prior marriage had resided up to the time of the second marriage, and then to procure from the clerk of the proper court in each county a certificate of search showing that no divorce or annulment had been granted by the court of which he is clerk.

¶ 13. The Court of Appeals concluded that Dr. Mohamed had failed to rebut the presumption because he had not produced a certifícate of “no divorce” from the clerk of the court for every county in which Wallace and Magee had resided. But Hodge says no more than that production of the “no divorce” certificates is the “practical course,” and we decline to extend Hodge so far as to require the certificates.

¶ 14. It is the role of the trial judge to consider the evidence and draw reasonable conclusions therefrom. Wallace cites no case in which we have held that a trial judge was manifestly wrong or clearly in error solely for determining the factual presumption discussed in Hodge had been rebutted.

¶ 15. We cannot conclude that the chancellor’s factual findings were “clearly erroneous” or “manifestly wrong.” Indeed, the weight of the evidence in the record before us indicates that Cynthia Wallace had not divorced Magee when she purportedly married Louis Wallace. Considering the testimonies of Wallace’s mother and daughter, and Gilkey’s petition for a divorce from Magee filed after her marriage to Wallace, the chancellor was not clearly erroneous in finding that Dr. Mohamed had rebutted the presumption that Wallace and Magee had divorced. So Wallace was not statutorily entitled to appointment, and nothing in the record indicates that the chancellor abused his “wide discretion” in replacing him.

CONCLUSION

¶ 16. The chancellor did not abuse his discretion in removing Wallace as administrator of the estate. So we reverse the decision of the Court of Appeals and reinstate the ruling of the chancery court.

¶ 17. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS REINSTATED AND AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The Court of Appeals referred to Cynthia Gilkey Wallace as "Cynthia Gilkey,” her maiden name. To prevent confusion, we refer to Cynthia as "Gilkey” and Louis as "Wallace.”

      . Although her legal surname is "Iyalla,” the estate petition and Court of Appeals referred to Gilkey's daughter as "J’Bria Gilkey.” We refer to her as "Iyalla” to avoid confusing her with her mother.

      . Moore v. Roecker, 239 Miss. 606, 124 So.2d 473, 474 (1960) (citing In re Burnside's Estate, 227 Miss. 110, 85 So.2d 817, 818 (1956)).

      . In re Estate of Moreland, 537 So.2d 1337, 1340 (Miss.1989) (citing Stargell v. White, 234 Miss. 601, 107 So.2d 125, 127 (1958); Stribling v. Washington, 204 Miss. 529, 37 So.2d 759, 761 (1948)). See also Miss.Code Ann. § 91-7-63(1) (Rev.2004)

      . Moreland, 537 So.2d at 1343 (citing Stribling, 37 So.2d at 761) (emphasis added).

      . Denson v. George, 642 So.2d 909, 913 (Miss.1994).

      . Erwin v. Hodge (In re Erwin’s Estate), 317 So.2d 55, 57 (Miss.1975).

      . Id.


author: KITCHENS, Justice,

text:
    Julius Wesley KIKER v. STATE of Mississippi.
    No. 2008-CT-01341-SCT.
    Supreme Court of Mississippi.
    Feb. 17, 2011.

      Percy Stanfield, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ON WRIT OF CERTIORARI

KITCHENS, Justice,

for the Court:

¶ 1. Julius Wesley Kiker was convicted by a jury of the March 6, 2002, murder of his wife, Renee Kiker, and sentenced to life imprisonment. The Court of Appeals was assigned his direct appeal and affirmed both his conviction and sentence. Kiker v. State (Kiker I), 919 So.2d 190 (Miss.Ct.App.2005). Two years later, a panel of this Court granted Kiker leave to proceed in the trial court on his post-conviction claim that his Sixth Amendment rights were violated due to his trial counsel’s representation of a witness for the State. An evidentiary hearing was held in the George County Circuit Court, and the trial judge denied Kiker’s petition. Kiker appealed the denial of his petition, and the Court of Appeals affirmed. Kiker v. State (Kiker II), 55 So.3d 1082 (Miss.Ct.App.2009). This Court granted Kiker’s petition for writ of certiorari. Finding that Kiker’s attorney had an actual conflict of interest, and that Kiker did not waive that conflict, we reverse the Court of Appeals’ decision and the trial judge’s denial of Kiker’s petition for post-conviction relief.

Facts

¶ 2. On the evening of March 6, 2002, Kiker’s mother called the George County Sheriffs Department to report that she could not get through to her son’s home telephone. When a deputy sheriff arrived at Kiker’s home, he found Kiker standing over his wife’s dead body holding the instrument of her death, a firearm.

¶ 3. Kiker testified at trial, asserting that his wife’s demise had resulted from an accident. Kiker said that they had been arguing when Renee came after him with a gun, threatening to kill him. According to Kiker, Renee was accidentally shot as they were struggling over the gun. It was undisputed that he and Renee had a tumultuous relationship, and evidence was adduced that each spouse had engaged in physical abuse of the other.

¶ 4. The only direct evidence to dispute Kiker’s version of events came from Bobby Crawford, a jailhouse informant. Crawford testified that, while they were in jail together, Kiker had told him that he could no longer withstand his wife’s mistreatment and had intentionally shot her in the head.

¶ 5. Kiker was represented at trial by two attorneys, Darryl Hurt, Sr., and Sidney Barnett. During Hurt’s cross-examination of Crawford, Hurt asked Crawford whether he was under a criminal indictment. The prosecutor objected, arguing that pending criminal charges were not admissible for impeachment purposes under the Mississippi Rules of Evidence. The prosecutor further commented, “we were also made aware earlier of a concern of Mr. Barnett, the situation.” After a brief reply argument from Hurt, the prosecutor withdrew his objection, and the following exchange occurred, in the jury’s presence:

Hurt: Are you presently under an indictment for a crime by the Grand Jury of this County?
Crawford: You’ll have to ask my lawyer riyht there, Mr. Barnett. I am going to Drug Court rehab.
Hurt: I want you to answer my question.
Crawford: I’m answering it the best I can. I don’t know it if [sic] was an indictment or not. I know I did four months on my sentence and I’m going to a drug rehab. I’m not an educated man.
Hurt: But I’m asking you a question. I’m not going to argue with you, sir. I’m merely asking you a question, and I would like for you to answer it. Have you been indicted by the George County Grand Jury for a crime?
Crawford: Yes, sir.
Hurt: And what is that crime for which you’ve been indicted?
Crawford: Manufacturing.

(Emphasis added.) Shortly thereafter, Hurt concluded his cross-examination of Crawford.

¶ 6. Beyond Crawford’s in-court statement that Barnett was his attorney, nothing else appears in the record on direct appeal regarding Barnett’s representation of both Kiker and Crawford. When Kiker testified in his defense, his attorneys did not ask him about the confession he allegedly had made to Crawford while the two were in jail. Crawford could not recall when he was in jail with Kiker, and, other than Crawford’s testimony, the record does not indicate whether Crawford and Kiker were in fact incarcerated at the same time.

¶ 7. The same attorneys, Barnett and Hurt, represented Kiker on direct appeal. The case was assigned the Court of Appeals, which affirmed his conviction and sentence. Kiker I, 919 So.2d 190. As Kiker’s attorney on direct appeal, Barnett served as Kiker’s advocate until at least October 11, 2005, the date on which the Court of Appeals affirmed Kiker’s conviction. Kiker /, 919 So.2d 190. Exactly two weeks later, Barnett was in the George County Circuit Court representing Crawford, a key witness against Kiker, on a guilty plea. Thus, Barnett’s concurrent representation of Kiker and Crawford went on for years.

¶ 8. On November 8, 2007, a panel of this Court granted, in part, Kiker’s application for leave to proceed in the trial court on the post-conviction issue of “whether Kiker’s Sixth Amendment rights were violated due to his trial counsel’s representation of a witness for the State.” An evidentiary hearing was held in the George County Circuit Court before the same judge who had presided over Kiker’s trial.

¶ 9. At the post-conviction hearing, Kiker testified that Barnett had been appointed by the court to represent him “a couple of days after it happened,” and that Kiker’s family had hired Hurt shortly thereafter. According to Kiker, he met with both attorneys several times before his trial and was told that Crawford would testify against him. However, Kiker was never told that Barnett also represented Crawford, and Kiker claimed that he first learned of this conflict when Crawford was on the witness stand. Kiker testified that had he been informed of Barnett’s representation of Crawford, he would not have waived the conflict of interest and would have sought replacement counsel.

¶ 10. The State presented two witnesses at the post-conviction hearing: Lee Martin, the assistant attorney general who prosecuted Kiker’s murder case, and Kevin Bradley, the assistant district attorney who handled the charges against Crawford. Martin testified that, shortly after Kiker’s trial began, Barnett informed the prosecution and the trial judge that he was representing Crawford on pending, drug-related charges. While Martin agreed that Kiker should have been made aware of the conflict, neither he nor the trial judge had taken any action to ensure that Kiker was timely informed of this conflict. Martin testified that he did not know of any plea arrangement associated with Crawford’s testifying against Kiker.

¶ 11. Bradley testified concerning the handling and disposition of the charges against Crawford, asserting that the plea deal offered to Crawford was not in exchange for his testimony against Kiker. Crawford was indicted on June 18, 2002, for possession of methamphetamine and possession of methamphetamine precursors. On December 3, 2002, a bench warrant for contempt was issued for Crawford, but the warrant was lifted on February 4, 2003, roughly eleven days after Kiker was indicted for murder. Crawford testified in Kiker’s trial on July 31, 2008, and as demonstrated by his testimony, seemed confused about the nature and status of the charges against him and attempted to defer the question to his lawyer, Barnett. On October 20, 2003, less than two months after Kiker’s trial, another bench warrant was issued for Crawford, but he was not arrested until July 19, 2005. On October 25, 2005, with Barnett as his attorney, Crawford pled guilty to both counts contained in the June 18, 2002, indictment and also pled guilty to failure to register as a sex offender. Crawford received an eight-year sentence on each of the drug charges, with three years to serve, and five years on the failure-to-register charge, with two years to serve. The sentences for the drug charges were ordered to run consecutively, and the sentence for his failure to register was ordered to run concurrently with the other sentences, giving him a total of six years to serve. Crawford was ordered to be incarcerated in a facility separate from Kiker and from another man against whom he had provided incriminating testimony in a case unrelated to Kiker’s.

¶ 12. The trial judge entered a written order denying Kiker’s petition for post-conviction relief, finding that “there was not an actual conflict in existence at the time the State’s witness Bobby Crawford, testified during the murder trial of Julius Wesley Kiker.” The judge also based his decision on findings that: Hurt was Crawford’s lead attorney; the State did not offer a plea deal to Crawford in exchange for his testimony; Crawford was not Kiker’s codefendant and was not involved in the murder of Renee Kiker; Crawford’s testimony was not the “centerpole” of the State’s case; and Kiker’s attorneys were not deficient and provided effective assistance of counsel. The Court of Appeals agreed with the trial judge’s reasoning and affirmed the denial of Kiker’s petition. Kiker II, 55 So.3d 1082.

Discussion

¶ 13. “In all criminal prosecutions, the accused shall enjoy the right ... to have Assistance of Counsel for his de-fence.” U.S. Const. amend. VI. See also Miss. Const. art. 3, § 26 (“In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both-”) “[A]dept representation encompasses two broad principles: minimum competence and loyal assistance.” Armstrong v. State, 573 So.2d 1329, 1331 (Miss.1990) (citation omitted). Moreover, constitutional guarantees of due process of law require undivided loyalty of defense counsel. Littlejohn v. State, 593 So.2d 20, 23 (Miss.1992) (citing U.S. Const. amend. V); U.S. v. Alvarez, 580 F.2d 1251, 1256 (5th Cir.1978) (Porter v. U.S., 298 F.2d 461, 464 (5th Cir.1962)). See also Miss. Const. art. 3, § 14 (“No person shall be deprived of life, liberty, or property except by due process of law.”).

¶ 14. “Under our system of jurisprudence, if a lawyer is not one hundred percent loyal to his client, he flunks.” Littlejohn, 593 So.2d at 22. Because “[Royalty is an essential element in the lawyer’s relationship to a client,” the Mississippi Rules of Profession Conduct prohibit a lawyer’s representing conflicting interests without knowing and informed consent from the client(s). Miss. R. Profl Conduct 1.7 & cmt. If an impermissible conflict arises after the lawyer already has undertaken representation, the lawyer should withdraw from the case. Miss. R. Profl Conduct 1.7 cmt., 1.16. “Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.” Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

¶ 15. When a trial judge becomes aware that the accused is being represented by an attorney with an actual conflict of interest,

The trial judge is under a duty to advise the defendant of his right to separate, independent counsel. In order for a defendant effectively to waive his right to conflict-free counsel, the trial judge should affirmatively participate in the waiver decision by eliciting a statement in the narrative form from the defendant indicating that he fully understands the nature of the situation and has knowingly and intelligently made the decision to proceed with the challenged counsel.

Littlejohn, 593 So.2d at 25 (quoting Alvarez 580 F.2d at 1259-60) (internal citations omitted). Likewise, the prosecution has an obligation to notify the trial court when it becomes aware that the defense attorney has an actual conflict of interest in his representation of the accused. Id.

¶ 16. When the accused is represented by an attorney with an actual conflict of interest, the accused has received ineffective assistance of counsel as a matter of law, and “reversal is automatic irrespective of a showing of prejudice unless [the accused] knowingly and intelligently waived his constitutional right to conflict free representation.” Armstrong, 573 So.2d at 1335. Thus, the standard set out in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requiring a showing of “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” is inapplicable to cases when the defendant’s attorney “actively represented conflicting interests.” Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2001). As this Court has recognized,

Once an actual conflict is demonstrated, a showing of specific prejudice is not necessary, for to hold otherwise would engage a reviewing court in unreliable and misguided speculation as to the amount of prejudice suffered by a particular defendant. An accused’s constitutional right to effective representation of counsel is too precious to allow such imprecise calculations.

Littlejohn, 593 So.2d at 25 (quoting Alvarez, 580 F.2d at 1259).

¶ 17. On the other hand, when there existed only a potential conflict of interest at trial, a defendant must demonstrate on appeal that “a conflict of interest actually affected the adequacy of his representation.” Mickens, 535 U.S. at 168, 122 S.Ct. 1287 (quoting Sullivan, 446 U.S. at 348-49, 100 S.Ct. 1708). An example of a potential conflict of interest is when an attorney undertakes dual representation of codefendants without any objection. Sullivan, 446 U.S. 335, 100 S.Ct. 1708. Without objection from defense counsel, “trial courts may assume, either that multiple representation [of codefendants] entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.” Id. at 346, 100 S.Ct. 1708.

¶ 18. Therefore, 'whether Kiker must demonstrate prejudice turns on whether there was an actual, as opposed to a potential, conflict of interest. In the present case, by representing Kiker and a witness against him, Barnett clearly was “actively representing] conflicting interests.” Mickens, 535 U.S. at 166, 122 S.Ct. 1237. Barnett owed a duty of loyalty both to Kiker and to Crawford, a duty that was impossible to fulfill if one of his clients was offering testimony against the other. As Crawford’s attorney, Barnett had the duty to advise Crawford, who was facing criminal charges of his own, of his right against self-incrimination. Barnett also had the duty to counsel Crawford in his decision of whether to testify against Kiker. On the other hand, as Kiker’s attorney, Barnett was charged with attacking Crawford’s credibility, which would have included an inquiry into Crawford’s criminal background, and his current circumstances, with which Barnett should have been intimately familiar. Barnett could not have acted as a zealous advocate for Kiker without disclosing information about Crawford which he gained as Crawford’s lawyer. Likewise, Barnett could not have acted as an advocate for Crawford after seeking, on behalf of Kiker, to undermine Crawford’s credibility. Whether it was Hurt or Barnett who actually cross-examined Crawford during Kiker’s trial is of no consequence. Both lawyers were present, ostensibly working together on behalf of Kiker. Presumably, they also had worked together in preparation for trial.

¶ 19. Although this Court has never dealt with this specific situation, many courts have rightly held that when a defense attorney contemporaneously represents a prosecution witness, there is a per se, actual conflict of interest. See e.g., People v. Thomas, 131 Ill.2d 104, 137 Ill. Dec. 1, 545 N.E.2d 654 (1989) (“Where defense counsel has represented a State’s witness, a per se conflict of interests exists if the professional relationship between the attorney and the witness is contemporaneous with counsel’s representation of defendant.”); Commonwealth v. Hodge, 386 Mass. 165, 434 N.E.2d 1246 (1982) (per se denial of effective assistance of counsel when defense counsel’s partner represented prosecution witness in unrelated civil matter); People v. Stewart, 126 A.D.2d 943, 511 N.Y.S.2d 715 (1987) (prejudice presumed where lawyer also represented defendant’s father in unrelated civil case and father testified against son). Therefore, we find that Barnett was under an actual conflict of interest, and Kiker need not demonstrate any specific prejudice to his defense.

¶ 20. The Court of Appeals recognized that Barnett had a conflict of interest, but it agreed with the trial judge that Hurt’s role as the lead attorney cured' this conflict. Kiker II, 55 So.3d at 1087. Specifically, the Court of Appeals held that “[d]espite Barnett’s conflict of interest, the situation was remedied by Hurt’s representation of Kiker and his handling of the vast majority of the trial, including the questioning of Crawford.” Id. We disagree. Even if one were able to divine from the record that Barnett “played a negligible role in the trial,” a judgment which we do not have sufficient information to make, Barnett’s conflict was imputed to his cocounsel by virtue of their association in the joint undertaking of representing Kiker. See Miss. R. Profl Conduct 1.10.

¶21. The Court of Appeals also put stock in its conclusion that “[wjhen Barnett became aware of the conflict, he brought it to the attention of the circuit court and the State.” Id. at 1087. First, we cannot discern from the record when it was that Barnett became aware of the conflict. The State disclosed Crawford’s name as a potential witness months before trial. Barnett should have been aware of the conflict then. However, he failed to mention his representation of the prosecution witness until after Kiker’s trial had begun. Furthermore, Barnett’s ethical obligation was not satisfied simply by informing the court and the prosecution of the actual conflict. He had a duty to withdraw from the case, or, if feasible, to tell Kiker about the conflict and to seek to obtain a knowing and informed waiver from his client. Miss. R. Profl Conduct 1.7, 1.16.

¶22. Moreover, the trial court itself had an affirmative duty, upon being informed of the conflict, to ascertain from Kiker himself whether he was aware of the conflict and its inherent propensity to impact him adversely, and, if so, whether Kiker, with full awareness of the conflict’s potential ramifications, wished to waive the conflict or obtain new counsel. Littlejohn, 593 So.2d at 25.

¶ 28. It is undisputed that Kiker himself did not waive this actual conflict of interest. The trial judge, the defense attorneys, and the prosecutor knew about the conflict, and all of them failed in their respective duties. In the absence of a knowing and intelligent waiver from Kiker, prejudice is presumed, and we must reverse the conviction and remand the case. Id.

¶ 24. REVERSED AND REMANDED.

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

      . It is unclear when Crawford was charged with failure to register as a sex offender. Numerous documents related to Crawford’s criminal charges were received into evidence at the post-conviction hearing as State’s Exhibit 1. Kiker’s attorney designated this exhibit as part of the record on appeal, but the George County Circuit Clerk’s office included only State's Exhibit 2, the transcript of Crawford’s plea colloquy, as part of the record on appeal. Kiker’s attorney did not certify the record as complete pursuant to Mississippi Rule of Appellate Procedure 10(b)(5).

      . Mississippi Rule of Professional Conduct 1.7(b) provides,
      A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer's own interests unless the lawyer reasonably believes:
      (1) the representation will not be adversely affected; and
      (2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.