source: Caselaw Access Project

author: KING, Justice,

license: Public Domain

text:
    Erwyn FREEMAN a/k/a Erwyn E. Freeman v. STATE of Mississippi.
    No. 2012-KM-00192-SCT.
    Supreme Court of Mississippi.
    May 30, 2013.
    Rehearing Denied Oct. 3, 2013.

      Charles Richard Mullins, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, John R. Henry, Jr., Scott Stuart, attorneys for appellee.
   KING, Justice,

for the Court:

¶ 1. In this conviction for driving under the influence (“DUI”) first offense, speeding, and littering, the State lost key evidence prior to the defendant’s de novo trial in county court, while it was under a court order to preserve the evidence. The State’s actions violated the defendant’s due process right to present a complete defense. Further, the county court improperly admitted proof of the radar device’s accuracy under the business records hearsay exception. However, sufficient evidence to support the defendant’s speeding conviction exists in the officer’s testimony regarding the defendant’s speed. Thus, this Court reverses the DUI conviction and renders judgment in favor of the defendant. This Court affirms the speeding conviction, because it is supported by sufficient evidence. The defendant does not adequately contest the littering conviction; thus this Court affirms his littering conviction.

FACTS AND PROCEDURAL HISTORY

If 2. On September 8, 2008, Mississippi Highway Patrol Officer Phillip Patrick stopped the vehicle driven by Dr. Erwyn Freeman on Highway 51 in Madison County. The facts surrounding the stop are hotly contested. Officer Patrick recorded the entire stop on video. As a result of the stop, Officer Patrick arrested Freeman for DUI and transported him to the Madison County Sheriffs Department. After observing Freeman for an appropriate time period and informing Freeman of his right to refuse chemical tests to determine blood alcohol content (“BAC”), Officer Patrick administered the Intoxilyzer test. Officer Patrick administered the test twice, and Freeman’s BAC was determined to be .09. Officer Patrick issued Freeman tickets for DUI first offense, careless driving, speeding, and littering. Freeman was ordered to appear in the Madison County Justice Court.

¶ 3. Freeman entered a plea of “not guilty.” A justice court hearing was ultimately set for March 11, 2009. On October 30, 2008, Freeman propounded a subpoena duces tecum on Officer Patrick, requesting that Officer Patrick produce “[a]ny and all police reports, statements, video tapes, audio tapes, and any other evidence relating to the September 8, 2008 traffic stop involving Erwyn Freeman” within ten days of service. (Emphasis added.) Neither the prosecutor nor Officer Patrick produced the video recording of the stop in response to this subpoena. The Madison County Justice Court held trial on March 11, 2009, and at that trial, defense counsel first learned of the video of Freeman’s stop. The video was played in justice court, and Freeman maintains that the video reveals that the facts of the stop were quite different from the facts as later testified to by Officer Patrick. The justice court found Freeman guilty of DUI first offense, speeding, littering, and careless driving. At the end of the trial, Freeman requested the video be preserved pending appeal.

¶ 4. Freeman appealed his guilty verdicts to the County Court of Madison County, requesting a trial de novo. A trial was scheduled to occur in the county court on May 29, 2009. On April 17, 2009, the State requested a lengthy continuance because Officer Patrick would be on active military duty on May 29, 2009, and would remain on active military duty until November 2009. Freeman noted his concerns in agreeing to the continuance, including that he would be waiving his speedy trial rights, among others. However, he ultimately agreed to the continuance “so long as it is noted on the record that he wishes all evidence be preserved, specifically the video of the arrest, and does not waive any objections/rights if any such evidence is missing and/or destroyed.” (Emphasis added.) In response, the court granted the continuance and ordered that “all evidence in this case be preserved and should any evidence be lost or destroyed, the Defendant preserves any and all defenses he has under the United States and Mississippi Constitutions relating to lost or destroyed evidence.”

¶ 5. On August 7, 2009, Freeman propounded general discovery on the State, which was sufficiently broad to cover the video. The State responded to Freeman’s discovery requests on December 11, 2009, replying that the video had been destroyed. It stated that, during Officer Patrick’s absence, “the laptop with the recording in question was housed and kept at DPS. Upon Trooper Patrick’s return to work in November 2009, it was discovered that the hard drive for said laptop was corrupted and many files were lost. DPS technicians have attempted to recover this recording of the Defendant’s stop and arrest but were unsuccessful.” In response, Freeman filed a Motion to Dismiss, which the court denied. The court did, however, determine that it would infer that the video would have been favorable to Freeman with respect to any contested issues.

¶ 6. At trial, the facts were hotly contested. Freeman maintained that the destroyed video showed Freeman’s vehicle abiding by traffic laws, showed that his speech was not slurred, and showed that his coordination was not impaired. He claims that the video showed the results of Freeman’s preliminary breath tests (“PBT”), and also revealed Officer Patrick speaking with dispatch about Freeman’s PBT levels going-down and that he did not want to “waste his time” if Freeman was not under the influence. He states that the video reveals Officer Patrick cancelling the wrecker he called and stating that he was going to allow someone to pick up Freeman. It shows that Officer Patrick then asked Freeman to take the PBT once more, and Freeman questioned the officer as to why he had to take yet another PBT test. At that point, Officer Patrick arrested Freeman.

¶ 7. Officer Patrick testified on direct examination that as he was driving southbound on Highway 51, he observed Freeman’s vehicle, also traveling southbound, which “appeared to have been running off the road.” After Officer Patrick allegedly witnessed Freeman swerve, Officer Patrick approached Freeman’s vehicle from behind. Officer Patrick testified that he then estimated Freeman’s speed by following him. Because Freeman was exceeding the posted speed limit of fifty-five miles per hour, he initiated his radar, and it displayed a speed of sixty-nine miles per hour. The Radar Unit Certification introduced into evidence was not a certified copy. After gauging Freeman’s speed while following Freeman, Officer Patrick activated his blue lights and his video and pulled Freeman over.

¶ 8. Officer Patrick testified that when he initially pulled Freeman over, Freeman threw a cup under the vehicle. Officer Patrick maintained that, when he approached the vehicle, he smelled the presence of alcohol. He asserted that Freeman stated that he drank two beers. Freeman asserts that he never stated that he drank two beers. Both Freeman and Officer Patrick agree that what he did or did not say regarding drinking beer was on the destroyed videotape.

¶ 9. Officer Patrick then maintained that Freeman’s speech was slurred and his coordination impaired. Freeman used Officer Patrick’s justice court testimony, which was given when the video was readily available, on cross-examination to elicit the following testimony regarding Freeman’s impaired coordination:

Q: And I asked you a question: “Now, on the videotape — we’re going to put that on in a minute — Dr. Freeman had no problems with his coordination on this video, did he?” What was your answer?
A: I said, “No, sir.”
Q: So in March of 2009, when I asked you about his coordination, you said it was not impaired, correct?
A: Sir, my recollection of impaired it’s the vision, as far as Mr. Freeman’s eyes and everything. But as far as the staggering, I clearly observed Mr. Freeman stagger slightly as he exited the vehicle.
Q: So you dispute that on the videotape it shows those things?
A: Sir, me and you both watched that video. You may assume or say that he doesn’t have a stagger. When I say he staggered, it was a slight — as I testified earlier, it was a slight stagger. It wasn’t one that was very obvious, and I testified that it was a slight stagger in Mr. Freeman’s walk as he exited the vehicle.
Q: But when I specifically asked you that while were [sic] watching that video in March of 2009, was his coordination was [sic] impaired, you told me “no, sir.”
A: Sir, the coordination — what I mean by coordination, as far as Mr. Freeman’s his eyes or anything. But as far as his staggering, Mr. Freeman did stagger slightly as he exited the vehicle.
Q: So you don’t consider staggering a part of coordination?
A: It is part of coordination. I answered that question, sir. Mr. Freeman did stagger as he exited the vehicle.

Freeman further used Officer Patrick’s justice court testimony to cross-examine him regarding Freeman’s allegedly slurred speech:

Q: Do you remember when I asked you in the court below about his speech and you said his speech wasn’t slurred?
A: No, sir. I can’t recall that.
Q: And this is my question: “And you don’t know how he talks or how he walks or anything like that?” Your answer was: “Did I say he had slurred speech? No, sir, I did not.”
Q: So didn’t you tell me back then that he didn’t [sic] say he had slurred speech?
A: Sir, I can’t recall.
Q: Well, you saw your testimony?
A: I saw what’s written in your book. I can’t recall stating that Mr. Freeman did not have slurred speech.
Q: Well, do you have any recollection— any records to refresh your memories to that?
A: As I stated earlier, Mr. Freeman was — I asked Mr. Freeman where he was headed that night. He did explain — tell me that he was looking for three dogs.
Q: Officer, I don’t mean to interrupt you, but I mean specifically as it relates to your statements that you’re talking about his slurred speech?
A: Yes, sir. That’s what I was explaining to you. As he was explaining where he was headed and that he was looking for the three dogs, that’s when I observed Mr. Freeman’s speech was slurred.
Q: But when I asked you about that in the court below based on what we just saw, you denied he had slurred speech, didn’t you?
A: Sir, I can’t recall that.
Q: Did you see your testimony?
A: I saw what you had written in that book. Yes, sir.
Q: You saw what I had written in it?
A: Yes, sir.
Q: That a court reporter did?
A: I saw the book. Yes, sir.
Q: But it’s clear, without you and I discussing it on that videotape, you can hear Dr. Freeman talking?
A: Yes, sir, you could.
Q: You can tell if he’s got slurred speech by looking at the videotape?
A: By hearing the voice?
Q: Yes, sir.
A: Yes, sir.
Q: But we don’t have that video, do we?
A: No, sir, we don’t.

¶ 10. Officer Patrick testified that, after observing Freeman, he administered a PBT, which indicated the presence of alcohol. Officer Patrick testified that the numbers were so high that they indicated a false result, and that he smelled the presence of mouthwash, which can cause an extremely high PBT reading. At some point during the investigation, Officer Patrick called, then cancelled, a wrecker. Officer Patrick administered a second PBT, and the indicator went down. Freeman contends that the second PBT was below .08, while Officer Patrick stated that it was above the state limit. Regardless, both agreed that Officer Patrick showed that disputed reading on the videotape. When Freeman used Officer Patrick’s prior testimony to cross-examine him about the disputed reading, the following exchange occurred:

Q: You actually approached Dr. Freeman again on the videotape and told him that your last reading on the PBT was really low.
A: No, sir. I don’t recall telling Mr. Freeman about the reading of the PBT.
Q: Let me show you the transcript again. My question, and I think we’re watching the videotape, “The last time you said that the one you gave him was low; is that correct?” And your response was, “Point one, it’s not admissible. Being low is my — my dealing of low and your dealing of low can be different.” Is that correct?
A: Sir, that’s what you’re reading. I’m not sure if I said that.

¶ 11. After observing the PBT reading going down, Officer Patrick was going to let someone come pick Freeman up, as he had concluded his investigation. However, Officer Patrick opined that Freeman then took a “tone” with him, and at that point, Officer Patrick arrested Freeman. Cross-examination elicited the following testimony about Officer Patrick’s change of heart:

Q: And at that point in time, you also asked a question on the videotape whether he had someone to come pick him up, correct?
A: Yes, sir.
Q: And you were going to let Dr. Freeman go?
A: I was going to let him — not let him drive. I was going to let someone drive him that wasn’t under the influence of alcohol.
Q: ... You had approached him and said you were going to let somebody come pick him up, correct?
A: Yes.
Q: So at that point in time, you had completed your investigation as far as you were concerned?
A: At that time, yes, sir.
Q: Dr. Freeman asked why he couldn’t drive his vehicle, correct?
A: That’s correct.
Q: And at that point in time on the videotape, you demanded he get out of the car and arrested him?
A: Yes, sir. Mr. Freeman then said in a tone you just told me, and also when he stated that to me, as I stated, I was smelling more of the presence of alcohol than mouthwash. I didn’t smell mouthwash anymore, and that’s when I made up my mind that I was going to take him in for further investigation.

Officer Patrick placed Freeman under arrest for DUI. He handcuffed him, placed him in his patrol car, and transported him to the Madison County Sheriff’s Department.

¶ 12. On December 22, 2010, the county court adjudged Freeman guilty of DUI first offense, speeding, and littering. It found Freeman not guilty of careless driving. Freeman appealed the three convictions to the Circuit Court of Madison County. On January 3, 2012, the circuit court affirmed the county court.

¶ 13. Aggrieved, Freeman appeals to this Court, raising the following issues: (1) whether the destruction of the videotape, which was the subject of a court order requiring its preservation, deprived Freeman of his due process rights and his right to present a defense pursuant to the Sixth Amendment and Article 3, Sections 14 and 26 of the Mississippi Constitution; (2) whether the DUI and speeding verdicts were not supported by sufficient evidence or were against the overwhelming weight of the evidence; (3) whether the arresting officer lacked probable cause to stop Freeman; and (4) whether the arresting officer lacked probable cause to arrest Freeman for DUI.

ANALYSIS

¶ 14. In an appeal from a bench trial, this Court will not reverse the trial court on findings of fact where they are supported by substantial, credible, and reasonable evidence. City of Laurel v. Williams, 21 So.3d 1170, 1174 (Miss.2009). Questions of law are reviewed de novo. Id.

1. Destruction of the Videotape

¶ 15. Pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution, “criminal prosecutions must comport with prevailing notions of fundamental fairness.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). Thus, a defendant must “be afforded a meaningful opportunity to present a complete defense.” Id. “To safeguard th[e] right [to present a complete defense], the [U.S. Supreme] Court has developed ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.” Id. The State thus has a duty to preserve evidence “that might be expected to play a significant role in the suspect’s defense.” Id. at 488-89, 104 S.Ct. 2528. This duty applies to impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Impeachment evidence is favorable to the accused “so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.” Id.

¶ 16. Typically, in spoliation-of-evidence cases, this Court applies a three-part test established by the United States Supreme Court to determine whether the State’s loss of evidence violates a defendant’s due-process rights:

(1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and (3) the prosecution’s destruction of the evidence must have been in bad faith.

State v. McGrone, 798 So.2d 519, 523 (Miss.2001); Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337-38, 102 L.Ed.2d 281 (1988). However, this case presents a unique factual scenario that is not adequately addressed by the typical application of the three-part test. In this case, the defendant and the county court deemed the evidence material to the defense, and, as a result, the county court ordered the State to preserve the evidence. Thus, the State was under an affirmative duty via a court order to preserve the video.

¶ 17. The video undisputedly shows the moments before the stop, as well as the entire traffic stop. Officer Patrick admitted that the video would clarify material disputed facts, i.e., whether Freeman admitted to drinking alcohol, whether he slurred his words, whether his coordination was impaired, how he was driving immediately prior to the stop, and the interaction between the two men. He further admitted that the video would show the PBT results. The video offered objective evidence of what occurred during the entire traffic stop, and was an imperative part of Freeman’s defense, especially for its use to impeach Officer Patrick’s testimony. Thus, the loss of the video while the State was under a court order to preserve the video clearly impaired Freeman’s defense.

¶ 18. In the Youngblood case, the Supreme Court expressed its concern with imposing “on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Youngblood, 488 U.S. at 58, 109 S.Ct. 333. This is clearly not a case in which preserving the destroyed video would have imposed unreasonable requirements on the police to employ guesswork as to what should be preserved, or to preserve an unreasonable quantity of evidence. The evidence in question was specifically requested, and it was the subject of a court order to preserve evidence. Thus, given the court order to preserve the video, the State’s duty to preserve the video was certainly reasonable. Further, the evidence was of the nature that it was relatively simple to copy and preserve. Thus, both the prosecutor and the arresting officer had clear, actual knowledge of the import the defense placed on the video prior to it being destroyed. See Youngblood, 488 U.S. at 56 n. *, 109 S.Ct. 333. Defense counsel and the court did everything in their power to have the video copied and preserved, yet the State inconceivably ignored discovery requests for a copy of the video and violated the court order imposing an affirmative duty to preserve the video. The State gives no legitimate reason as to why it failed to follow the court order and preserve the video. Thus, finding a due process violation in this case comports with the spirit of Youngblood.

¶ 19. The destruction of the video seriously impaired Freeman’s ability to cross-examine Officer Patrick. “[S]uppression of [impeachment] evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial.” Bagley, 473 U.S. at 677, 678, 105 S.Ct. 3375. “[A] constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.” Id. Certainly, given Officer Patrick’s extremely self-contradictory testimony and his admission that the video would resolve multiple disputed material facts, the destruction of the objective video undermines the confidence in the outcome of the trial. “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). It is clear that the destruction of the videotape deprived Freeman of the opportunity to properly cross-examine Officer Patrick and to present a complete defense. Thus, such is a constitutional error that undermines the confidence in the outcome and in the administration of justice. On this basis, we reverse and render Freeman’s DUI conviction.

2. Sufficiency of the Evidence Supporting the Speeding Conviction

¶ 20. Freeman argues that the State did not put forth sufficient evidence to support his speeding conviction. He argues this on two grounds: 1) that Officer Patrick was not qualified to operate the specific radar device at issue, and 2) that the “Radar Unit Certification” allowed into evidence was inadmissible hearsay and violated Dr. Freeman’s right to confrontation. Because the second issue is dispositive in regard to the admissibility of the radar reading, we need not address whether Officer Patrick was qualified to operate the radar device. However, we ultimately find that sufficient evidence nonetheless supports the speeding conviction.

¶ 21. The admission of evidence is within the trial court’s discretion. Bower v. Bower, 758 So.2d 405, 414 (Miss.2000). “[A] radar device reading should be deemed admissible only upon a showing of the radar device’s accuracy.” Stidham v. State, 750 So.2d 1238, 1241 (Miss.1999).

¶ 22. The State inexplicably failed to obtain a certified copy of the Radar Unit Certification. The county court then admitted the uncertified Radar Unit Certification as a business record under Mississippi Rule of Evidence 803(6), with Officer Patrick as the custodian. Freeman argues that Officer Patrick is not a proper custodian to authenticate the un-certified document and that the admission of the document violated Freeman’s right to confront the person who performed the radar calibration.

¶ 23. The admission of the uncertified Radar Unit Certification was improper. Rule 803(6) provides a hearsay exception for records of regularly conducted activity. It allows admission of

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

M.R.E. 803(6) (emphasis added). Furthermore, Rule of Evidence 901 provides that authentication is a condition precedent to admissibility and gives illustrations regarding how documents may be authenticated. M.R.E. 901(a). Documents may be authenticated by “Testimony of Witness With Knowledge,” which consists of “[t]es-timony that a matter is what it is claimed to be.” M.R.E. 901(b)(1).

¶ 24. Officer Patrick clearly does not qualify as a custodian or qualified witness, as he does not have knowledge of the contents of the Radar Unit Certification. See Bower, 758 So.2d at 414-15. He specifically testified that “I really don’t know what the technician done. It was in his possession when I left the technician shop” and that “I didn’t actually watch [the technician].” Officer Patrick was clearly not a qualified witness, as he was not involved in the preparation of the Radar Unit Certification, nor did he possess the proper knowledge to be able to testify as to its accuracy. See id. at 415. Hearsay evidence is inadmissible unless it falls within a “firmly rooted hearsay exception;” otherwise it is subject to a confrontation objection. Id. at 414-15. Thus, because the Radar Unit Certification was not properly authenticated, it was inadmissible hearsay and should have been suppressed. Because the record contains no other evidence regarding the radar device’s accuracy, the reading is inadmissible, and the county court abused its discretion by admitting it.

¶ 25. However, sufficient evidence exists to support the speeding conviction. Officer Patrick specifically testified that he estimated Freeman’s speed by following, or pacing, him. Cross-examination did not undermine this testimony. While we strongly encourage the State to properly introduce radar readings in the future, under the specific facts of this case, the testimony regarding Officer Patrick’s estimations of Freeman’s speed by following him is sufficient evidence to uphold the speeding conviction.

CONCLUSION

¶ 26. Freeman does not adequately contest that he littered. Furthermore, sufficient evidence exists to support Freeman’s speeding conviction. Thus, this Court affirms Freeman’s convictions for littering and speeding. Because Freeman’s due process right to present a complete defense was irretrievably violated by the loss of the videotape, we reverse and render his DUI conviction.

¶ 27. CONVICTION OF SPEEDING AND SENTENCE TO PAY COURT COSTS, FEES AND ASSESSMENTS AND A FINE OF FIFTY (50) DOLLARS, WITH CONDITIONS, AFFIRMED. CONVICTION OF LITTERING AND SENTENCE TO PAY COURT COSTS, FEES AND ASSESSMENTS AND A FINE OF FIFTY (50) DOLLARS, WITH CONDITIONS, AFFIRMED. CONVICTION OF DUI— FIRST OFFENSE, REVERSED AND RENDERED.

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

      . Officer Patrick further responded to questioning on direct examination:
      Q: Initially, you said he ran off the road. Did he run all the way off the road?
      A: Right. It was — the vehicle went from one side — I can't recall if the left first or the right first, but it ran off one side and came back.
      The DUI ticket issued also contained a notation by Officer Patrick that states that Freeman "ran off road.” On cross-examination, Freeman’s counsel asserted that the destroyed video showed Freeman's vehicle traveling without swerving. Officer Patrick stated that you could not tell that Freeman’s vehicle was swerving on the video, but stated that he could tell from his vehicle that Freeman was swerving. Further, Officer Patrick changed his testimony regarding Freeman running off the road. On cross-examination, he testified that Freeman merely swerved within his own lane. The county court ultimately found Freeman not guilty of careless driving.

      . The record indicates that three PBTs may have been administered. However, Officer Patrick only recalls administering two PBTs, and the record does not contain any evidence or testimony regarding what the reading on the third PBT may have been.

      . Unlike most cases on the issue, in which the destruction was a "matter of routine,” or "in accord with their normal practice,” the destruction in this case was not done pursuant to a routine destruction of evidence policy. See Trombetta, 467 U.S. at 488, 104 S.Ct. 2528.

      . We note that video evidence is different from biological evidence such as DNA samples in that it is much easier to preserve and/or produce to the defense. It need not be subject to testing or preserved using specialized scientific processes. The State offers no excuse as to why it did not comply with the discovery requests and the court order, other than that Officer Patrick did not think he had the software on his computer with which to copy the video. There is no evidence that such software would be difficult to obtain and utilize, especially given the nearly fourteen months that elapsed between the first request for the video and the assertion that the video was destroyed. In making this distinction, we do not suggest that the loss or destruction of biological or like evidence is any less egregious than the destruction of video evidence. We merely note that video evidence is likely to be even easier for the State to produce to defendants.

      .We note that while there may be legitimate reasons to violate a court order, such as a force majeure or the like, the State did not offer one here.

      . Because we reverse Freeman's DUI conviction on the ground of the due process violation, we decline to address Freeman’s argument that Officer Patrick lacked probable cause to arrest him.

      . To the extent Freeman argues that his speeding conviction should be reversed because Officer Patrick lacked probable cause to stop him, this argument is without merit. A traffic stop is reasonable under the Fourth Amendment where an officer has probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Officer Patrick determined via his radar that Freeman’s speed was 69 miles per hour in a 55 mile per hour zone. He also testified that he estimated the speed by following Freeman. Even if Officer Patrick was operating his radar incorrectly, as Freeman alleges, his testimony establishes a reasonable belief that speeding, a traffic violation, has occurred. See Harrison v. State, 800 So.2d 1134, 1138-39 (Miss.2001).

      . It is not argued here that tuning forks established the accuracy of the device. See Stidham, 750 So.2d at 1241 (holding that tuning forks were acceptable means of proving radar accuracy where two officers testified that tuning forks were used three times the day of the stop and that every time they were used, the radar "checked functional”). Regardless, Officer Patrick testified that he used tuning forks three times on the day of the stop, but notably did not testify as to the results; thus, the record does not reflect whether the forks indicated that the radar was functioning properly. No evidence of the radar device’s accuracy was adduced at trial. As far as this Court knows, the test results may have been that the radar was functioning improperly. That information simply is not in the record.

      . We need not determine whether the Radar Unit Certification is a testimonial statement under the Confrontation Clause, because, regardless of its testimonial nature, it was improperly admitted into evidence.


author: CHANDLER, Justice,

text:
    William Martin FALKNER and Wife, Valerie J. Falkner v. John E. STUBBS, Jr. d/b/A Mississippi Polysteel.
    No. 2010-CT-01664-SCT.
    Supreme Court of Mississippi.
    Aug. 22, 2013.

      John P. Fox, Houston, attorney for appellants.
    Gene Barton, Okolona, attorney for ap-pellee.
   CHANDLER, Justice,

for the Court:

ON MOTION FOR REHEARING

ON WRIT OF CERTIORARI

¶ 1. John Stubbs’s motion for rehearing is granted. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. Stubbs was awarded damages for breach of contract after he sued Martin and Valerie Falkner to enforce a construction lien on their home. The Court of Appeals affirmed the circuit court’s judgment, but reversed its award of attorney’s fees and prejudgment interest, finding that Stubbs’s recovery was based in quantum meruit and thus, attorney’s fees and prejudgment interest were unavailable remedies. Stubbs petitioned for certiorari, arguing that the Court of Appeals failed to consider various statutory grounds for an award of attorney’s fees and prejudgment interest and requested that we reinstate the circuit court’s award. We granted cer-tiorari on the issue of prejudgment interest and attorney’s fees. Although the Court of Appeals did not discuss the statutes Stubbs raises, we find that those statutes provide an insufficient basis for an award of either prejudgment interest or attorney’s fees in this case; therefore, we affirm the Court of Appeals’ decision. The judgment of the Chickasaw County Circuit Court is affirmed in part and reversed in part, and the case is remanded to the circuit court for a final determination of Stubbs’s award without prejudgment interest or attorney’s fees.

FACTS

¶ 3. In April 2000, Martin Falkner and John Stubbs orally agreed that Stubbs would construct a basement for the Falk-ners’ planned log-cabin home near Houston, Mississippi, at a total cost of $25,000. The parties had little discussion concerning the itemized costs of the project. Stubbs completed the basement and received full compensation for that work. After he completed the basement, the Falkners asked Stubbs to help them build additional portions of the home “step by step.” At no time was there any written agreement between Stubbs and the Falk-ners regarding the scope of the work to be done or the price Stubbs was to be paid. Stubbs’s testimony was that he agreed to undertake the nonbasement work at the cost of his actual time and material expenses.

¶ 4. Before agreeing to the basement work, the parties discussed how much the entire home would cost to build. Martin Falkner testified that Stubbs told him the entire house could be built for $100,000, with the nonbasement work costing $75,000. Stubbs maintained that his estimate had been that the entire house would cost at least $150,000 to $200,000 to complete, even though the Falkners already had acquired most of the logs needed for the home. Stubbs testified that he told the Falkners his hourly labor rate was $25 per hour plus half that amount for travel time, while Martin Falkner maintained he was told Stubbs’s labor would be $18 per hour and that there was no discussion of travel time. The parties’ only discussion of the total price to build the home or of Stubbs’s hourly rate took place during negotiations to build the basement, and Stubbs’s labor and travel rates were not discussed again when the Falkners asked Stubbs to work beyond the original basement agreement.

¶ 5. Stubbs provided no invoices or statements during the time he worked on the house, but he received periodic advances or “draws” from the Falkners to cover his expenses. When the length and costs of the project surpassed the Falk-ners’ expectations, the Falkners told Stubbs to stop work on the house. Stubbs testified that, up to that time, the Falkners had paid him $45,840.25 and that he was owed $25,256.43 for outstanding costs. The Falkners’ position was that, based on the $100,000 they believed to be the total cost of the home and the amount of work left to be done, they actually had overpaid Stubbs at that point.

¶ 6. Stubbs filed a construction lien on the Falkners’ home and sued the Falkners for outstanding construction costs. After a bench trial, the circuit court found that the parties had entered into and performed an oral contract for Stubbs to build the basement for $25,000. Further, it found that the Falkners had asked Stubbs to continue to work on the home “without a full understanding or written contract,” and that the parties had entered an “oral contract for the purpose of constructing the dwelling and the compensation was not adequately discussed.” The circuit court awarded Stubbs the value of “his services, the services of his workmen, travel expense and materials purchased by Plaintiff for the dwelling,” with Stubbs’s and his workmen’s hourly labor and travel rates determined on a quantum meruit basis. In addition, the circuit court awarded Stubbs prejudgment and post-judgment interest at the rate of eight percent each, along with the cost of Stubbs’s attorney’s fees, which totaled nearly $20,000. The final judgment explicitly stated that “Plaintiff is entitled to attorney fees, prejudgment interest and post-judgment interest for Defendant’s breach of the oral contract,” and it mentioned only a monetary award based on the breach of contract. It did not include any provision for the sale of the property or execution of Stubbs’s lien.

¶ 7. The Court of Appeals upheld the circuit court’s judgment with the exception of the award of attorney’s fees and prejudgment interest. Because the circuit court had used quantum meruit to determine Stubbs’s hourly fee, the Court of Appeals held that “the instant case involves a contract implied in law ... and is, therefore a quantum meruit suit,” such that “the circuit court’s award of pre-judgment interest and attorney’s fees was improper.” Stubbs petitioned for certiorari, arguing that the Court of Appeals had failed to consider whether there was a statutory basis for the circuit court’s award of these remedies. We granted cer-tiorari solely to determine whether these statutes support an award of prejudgment interest and attorney’s fees.

STANDARD OF REVIEW

¶ 8. On appeal, we give a circuit-court judge presiding in a bench trial “the same deference with regard to his findings as a chancellor.” City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000). Therefore, we review the circuit court’s interpretation and application of the law de novo, and its findings of fact will not be reversed if supported by substantial evidence. In re Estate of Smith, 69 So.3d 1, 4 (Miss.2011). The standard for reviewing both an award of prejudgment interest and attorney’s fees is abuse of discretion. Id.; Bailey v. Estate of Kemp, 955 So.2d 777, 787 (Miss.2007).

DISCUSSION

¶ 9. The Court of Appeals reversed the award of prejudgment interest and attorney’s fees, holding that Stubbs should recover solely under a contract implied in law. If this were so, Stubbs would not be entitled to attorney’s fees or prejudgment interest under our prior decisions. Southland Enters., Inc. v. Newton County, 838 So.2d 286, 291 (Miss.2003) (holding that “a suit based on quantum merit precludes recovery of prejudgment interest and attorney fees”). Stubbs argues that this is not a case based in quantum meruit at all, but that the circuit judge found there was an oral contract.

¶ 10. The judgment indicates the circuit judge applied quantum meruit only to fix the disputed rate for Stubbs’s labor and travel time. The award of damages, and especially of attorney’s fees and prejudgment interest, was explicitly based on the Falkners’ breach of an oral contract, not a contract implied in law. The circuit court’s findings of fact were supported by substantial evidence and should not be overturned. However, we find no applicable statutory basis for the circuit court’s award of attorney’s fees or prejudgment interest, even if Stubbs’s recovery is based solely on an express contract rather than in quantum meruit.

1. Prejudgment Interest

¶ 11. Stubbs contends the award of prejudgment interest was justified under Mississippi Code Section 87-7-3, which allows for interest penalties for late payments to a contractor who has made improvements to real estate. In relevant part, it provides that “final payments of all monies owed contractors shall be due and payable ... [w]hen the owner beneficially uses or occupies the project,” and that “[i]f the contractor is not paid in full within thirty (30) calendar days from [the time payment is due], then the final payment shall bear interest ... at the rate of one percent (1%) per month until fully paid.” Miss.Code Ann. § 87-7-3 (Rev.2011).

¶ 12. Although not expressly stated, the circuit court appears to have relied on Mississippi Code Section 75-17-1, which provides for eight percent interest on all contracts absent a written provision otherwise. Under our previous cases, an award of prejudgment interest under Section 75-17-1 would be improper where a claim for damages is unliquidated. Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 959-60 (Miss.2002). Damages are unliquidated if they are not set forth in the terms of the contract itself, or if they are “established by a verdict or award but cannot be determined by a fixed formula.” Id. While a judge has discretion to award prejudgment interest, “no award of prejudgment interest may rationally be made where the principal amount has not been fixed prior to judgment.” Stockstill v. Gammill, 943 So.2d 35, 50 (Miss.2006) (quoting Coho Res., Inc. v. McCarthy, 829 So.2d 1, 19-20 (Miss.2002)).

¶ 13. Neither Section 75-17-1 nor Section 87-7-3 mentions whether monies owed contractors must be liquidated in order for the respective statute’s grant of prejudgment interest to apply. However, the same considerations which preclude a recovery of prejudgment interest for unliq-uidated amounts owed under Section 75-17-1 apply to Section 87-7-3. Therefore, Stubbs must show that his claims against the Falkners were liquidated prior to the judgment in order to recover prejudgment interest under either statute.

¶ 14. The amount of Stubbs’s claim was clearly in dispute, and the trial court resorted to quantum meruit to fix the exact amount of Stubbs’s damages. There has been no finding that the Falkners disputed the amount owed in bad faith, and we make none today. The Falkners’ actions were consistent with a belief that they had been overcharged and with the trial judge’s finding that “compensation was not adequately discussed.” We previously have held that where “there is a bona fide dispute as to the amount of damages as well as the responsibility for the liability therefor,” a claim is unliquidated and prejudgment interest is unavailable. Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 960 (Miss.2002) (quoting Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1380 (Miss.1990)). Because the amount of Stubbs’s claim was unliquidated at the time payment was due, he is not entitled to prejudgment interest.

2. Attorney’s Fees

¶ 15. Stubbs’s claim that he is entitled to his reasonable attorney’s fees also fails. We previously have stated that attorney’s fees are a special remedy available only when expressly provided for in either a statute or contract, or when there is sufficient proof to award punitive damages. Stanton & Assocs., Inc. v. Bryant Constr. Co., Inc., 464 So.2d 499, 502 (Miss.1985); see also McLain v. W. Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss.1995) (“Normally, attorney’s fees are not granted unless a statute or other authority so provides.”).

¶ 16. Stubbs relies on Mississippi Code Section 85-7-181 as the basis for his recovery of attorney’s fees. While this statute does provide for attorney’s fees, it is inapplicable to this case. This “stop-notice” statute was designed to provide a remedy for subcontractors — who are excluded from the protection of Mississippi’s contractor’s lien statute — by forcing the owner of a project to withhold funds due to a contractor when that contractor refuses to pay the subcontractor. Miss.Code Ann. § 85-7-181 (Rev.2011). Stubbs’s claim, however, involves a dispute directly between a contractor and a project owner. Because Section 85-7-181 does not apply to Stubbs’s claim, Stubbs is not entitled to attorney’s fees under its provisions.

¶ 17. Stubbs actually styled his initial construction lien against the Falk-ners’ home under Section 85-7-181, rather than under the contractor’s lien statutes contained in Sections 85-7-181 through 85-7-157. Attorney’s fees are available under Section 85-7-151, which provides:

In case judgment be given for the plaintiff against the builder it shall be entered against him generally ... with costs, as in other cases, and with attorney’s fees as provided below, and with a special order for the sale of the property upon which the lien exists for the payment thereof and for an execution, as in other cases, for the residue of what may remain unpaid, after the sale of the property.

Miss.Code Ann. § 85-7-151 (Rev.2011) (emphasis added). Even though Stubbs brought this action to enforce his contractor’s lien, the circuit court entered judgment for breach of contract only and made no provision for the sale of the Falkners’ property to satisfy the judgment. Having recovered only damages owed under a breach of contract, Stubbs is not entitled to the attorney’s fees provided for under Section 85-7-151 in an action to enforce a contractor’s lien. Garner v. Hickman, 733 So.2d 191, 198 (Miss.1999) (precluding recovery of attorney’s fees under Section 85-7-151, even though plaintiff had filed such a lien, where plaintiff sued only for breach of contract but did not sue to enforce the contractor’s lien).

CONCLUSION

¶ 18. Finding no statutory basis for an award of either attorney’s fees or prejudgment interest, we hold that the circuit court abused its discretion in awarding such to Stubbs. For these reasons, we affirm the decision of the Court of Appeals and remand the case to the circuit court for a final determination of Stubbs’s award without prejudgment interest or attorney’s fees.

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . The United States District Court for the Northern District of Mississippi recently held Section 85-7-181 to be facially unconstitutional. Noatex Corp. v. King Constr. of Houston, LLC, 864 F.Supp.2d 478, 490 (N.D.Miss.2012) (holding that "Mississippi’s stop notice statute violates due process by authorizing what is in practical effect the prejudgment attachment of funds without prior notice and a hearing, or an acceptable post-seizure remedy.”).


author: COLEMAN, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Robert Earl FOWLKES.
    No. 2013-JP-00743-SCT.
    Supreme Court of Mississippi.
    Sept. 19, 2013.

      John B. Toney, attorney for appellant.
    Robert Earl Fowlkes, Aberdeen, attorney for appellee.
   COLEMAN, Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance (the “Commission”) filed a formal complaint against Municipal Court Judge Robert Earl Fowlkes regarding a verbal altercation he had with a probation officer outside the courtroom. The Commission and Judge Fowlkes have filed a joint motion asking the Court to approve agreed-upon sanctions of a public reprimand and costs of $200. We agree that Judge Fowlkes should be publicly reprimanded and assessed $200 for the costs of proceedings, and we find that he also should be fined $1,000.

Facts and Procedural History

¶ 2. On February 22, 2012, Judge Fowlkes presided over municipal court in the City of Aberdeen. Wylie Blanchard was present in the courtroom with his girlfriend, who was a litigant before Judge Fowlkes. Judge Fowlkes was Blanchard’s landlord at the time. Probation Officer Carolyn Gunn was also in attendance. Gunn believed there was an outstanding arrest warrant against Blanchard and, after court adjourned, she spoke to him about it. Blanchard complained to Judge Fowlkes that Gunn was going to put him in jail. Judge Fowlkes told Gunn that she did not have authority to arrest Blanchard, and Gunn explained that she would not be the one to arrest Blanchard but that she thought he had an outstanding warrant against him. A loud argument ensued between Judge Fowlkes and Gunn. Gunn turned away to determine if the clerk’s office had a copy of the warrant, and Judge Fowlkes told Gunn not to walk away while he was talking to her. Judge Fowlkes repeated that instruction after following Gunn into the clerk’s office, then threatened to hold her in contempt of court. Gunn replied that she could not be arrested for contempt of court, because they were not in the courtroom and Judge Fowlkes had adjourned court. Judge Fowlkes told Gunn to shut up and get out, and he had two police officers escort her from the clerk’s office.

¶ 3. On September 25, 2012, the Commission filed a formal complaint against Judge Fowlkes, charging him with violating Canons 1, 2A, 2B, 3B(2), 3B(4), and 3C(1) of the Code of Judicial Conduct and Section 177A of the Mississippi Constitution. Judge Fowlkes responded that he did not think his “actions were bringing any integrity problems or reflecting on his judgship.” He claimed that there had been no yelling and that he had not threatened Gunn, and he suggested that Gunn had been “out of order” for “blowing] up on” him. By February 14, 2013, Judge Fowlkes and the Commission had come to an agreement on the facts of the dispute and recommendations for sanctions. In lieu of an evidentiary hearing, Judge Fowlkes and counsel for the Commission submitted an Agreed Statement of Facts and Proposed Recommendation. Judge Fowlkes admitted that it was improper to “(1) use his judicial office to advance the private interests of others, (2) misuse his contempt power, and (3) be impatient and discourteous to those with whom he deals with in his official capacity.” He agreed that such impropriety constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute, which violated the Code of Judicial Conduct. The Commission and Judge Fowlkes filed a Joint Motion for Approval of Recommendations with the Court on June 7, 2013, recommending that Judge Fowlkes be publicly reprimanded and assessed costs of $200.

Discussion

¶ 4. In a judicial performance case, the Court is required to conduct an independent review of the entire record and, while we give deference and consideration to the Commission’s findings of fact and recommendations, the “final determination of the appropriate action to be taken” belongs to the Court and we are not bound by the Commission’s recommendations. Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 176-77 (¶¶ 8-9) (Miss.2011) (internal citations omitted).

¶ 5. Pursuant to Article 6, Section 177A of the Mississippi Constitution of 1890, as amended, judges in Mississippi may be fined, publicly censured or reprimanded, suspended, or removed from office by the Mississippi Supreme Court upon recommendation from the Commission. Of the five grounds for which a judge may be sanctioned, the two most relevant to the instant case are willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. See Miss. Const, art. 6, § 177A(b), (e) (1890). We have said:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally, or with gross unconcern for his conduct and generally in bad faith.... A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith.

Miss. Comm’n on Judicial Performance v. Hartzog, 32 So.3d 1188, 1193 (¶ 12) (Miss.2010) (quoting Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 212-13 (¶ 7) (Miss.2006)). We have held that actual willfulness is not always required, as a judge’s “negligence or ignorance not amounting to bad faith” can have the same effect of being prejudicial to the administration of justice and bringing the judicial office into disrepute. Hartzog, 32 So.3d at 1193 (¶ 12) (quoting In re Anderson, 451 So.2d 232, 234 (Miss.1984)).

¶ 6. In the instant case, Judge Fowlkes failed to remove himself from the adversarial matter between Gunn and his tenant. As Blanchard’s landlord, Judge Fowlkes had a vested financial interest in Blanchard remaining out of jail. His impatience and discourteousness towards Gunn, along with improper threats to hold her in contempt of court, created the appearance that he was influenced by the landlord-tenant relationship and that he was using his office to advance the private interests of himself and Blanchard.

¶7. Judge Fowlkes admitted that his conduct violated the Code of Judicial Conduct, specifically Canon 1 (judge shall observe standards that preserve the integrity and independence of the judiciary); Canon 2A (judge’s conduct shall promote public confidence in the integrity and impartiality of the judiciary); Canon 2B (judge’s personal relationships shall not influence judicial conduct or judgment); Canon 3B(2) (judge shall be faithful to the law and maintain competence in the law); Canon 3B(4) (judge shall be “patient, dignified, courteous” to those he deals with in his official capacity); and Canon 3C(1) (judge shall be diligent and impartial in the discharge of his administrative duties). Judge Fowlkes agreed that violations of these canons amounted to a violation of Section 177A of the Mississippi Constitution, because his actions constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

¶ 8. Judge Fowlkes and the Commission filed a joint motion recommending that Judge Fowlkes be publicly reprimanded and be assessed $200 for the costs of the proceedings against him. We previously established six factors to be considered when determining whether sanctions are appropriate in a judicial misconduct proceeding. See Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (¶ 9) (Miss.2004) overruled in part on other grounds by Boone, 60 So.3d 172. However, we recently modified the Gibson factors and held that the fifth factor— whether moral turpitude was involved—should not be a factor in determining the appropriateness of sanctions. Miss. Comm’n on Judicial Performance v. Skin ner, 119 So.3d 294, 307 (¶ 32) (Miss.2013). “Instead, this Court will examine the extent to which the conduct was willful, and the extent to which the conduct exploited the judge’s position to satisfy his or her personal desires or was intended to deprive the public of assets or funds rightfully belonging to it.” Id.

¶ 9. Thus, after Skinner, the factors to be considered in determining the appropriateness of sanctions are: (1) the length and character of the judge’s public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) the extent to which the conduct was willful; (6) the extent to which the conduct exploited the judge’s position to satisfy his or her personal desires or was intended to deprive the public of assets or funds rightfully belonging to it; and (7) the presence or absence of mitigating or aggravating circumstances. Skinner, 119 So.3d at 301 (¶ 32). In applying these factors, we must keep in mind that “the primary purpose of sanctions is ‘to restore and maintain the dignity and honor of the judicial office and to protect the public against future excesses,’ rather than punishment of the individual.” Id. at ¶ 12 (quoting Boone, 60 So.3d at 185).

1. Length and character of public service

¶ 10. Judge Fowlkes currently holds three offices: Justice Court Judge for Monroe County, Municipal Court Judge for the City of Aberdeen, and Municipal Court Judge for the City of Smithville. He has served as Justice Court Judge for Monroe County for the past fourteen years, as Municipal Court Judge for the City of Aberdeen for the past eleven years, and as Municipal Court Judge for the City of Smithville for the past six years. He previously served as Municipal Court Judge for the City of Hatley for four years. The record is silent as to the character of that service and as to any other public service.

2. Prior caselaw on point

¶ 11. We have said that the “guiding factor” in determining an appropriate sanction is whether it fits the offense, and that “is best measured by comparison with sanctions handed down in prior cases for the listed offense.” Miss. Comm’n on Judicial Performance v. Dearman, 73 So.3d 1140, 1142 (¶ 7) (Miss.2011) (quoting Miss. Comm’n on Judicial Performance v. Britton, 936 So.2d 898, 906 (¶ 19) (Miss.2006)).

A. Misuse of contempt power

¶ 12. Regarding Judge Fowlkes’s misuse of his contempt power in threatening to hold Gunn in contempt, no direct case is on point. We have seen several cases in which judges actually held persons in contempt of court, rather than only making a threat. In Mississippi Commission on Judicial Performance v. Smith, 78 So.3d 889 (Miss.2011), Judge Smith abused his contempt power and exhibited poor courtroom demeanor. When a defendant failed to appear at his scheduled arraignment, Judge Smith threatened to hold the defendant’s bail bondsman in contempt of court if his clients failed to appear in the future, then he put the bail bondsman in jail for three days. Id. at 890 (¶ 2). In a second instance, Judge Smith held a lawyer in contempt of court and imprisoned him for several hours after the lawyer had attempted to approach the bench to present an order of dismissal. Id. at 891 (¶ 4). The judge then held contempt proceedings without the lawyer being present. Id. Judge Smith was publicly reprimanded, fined $1,000, and assessed $100 in court costs. Id at 895 (¶ 26). The Court said, “[w]e have made it quite clear that the power granted to judges does not license them to be disrespectful to the lawyers and citizens who appear in their courtrooms; and that judges must conduct themselves with appropriate judicial demeanor.” Id. at 893 (¶ 15).

¶ 13. In Mississippi Commission on Judicial Performance v. Darby, 75 So.3d 1037 (Miss.2011), Judge Darby was found to have abused her criminal contempt power after she held a woman in custody for three days without due process. A teenager was before Judge Darby after being arrested on several occasions, and Judge Darby verbally instructed the teenager’s mother to have her daughter mentally evaluated and to obtain healthcare coverage for her. Id. at 1039-40 (¶¶ 2-6). When the mother took her child for a mental evaluation, the treatment facility told her about the outpatient treatment program, and she called the court with concerns about the associated costs. Id. at 1040 (¶ 6). Judge Darby, through an intermediary, threatened to hold the mother in contempt of court if she did not leave her daughter at the treatment facility to participate in the program. Id. The mother was then told to appear in court that afternoon for hearing. Id. at 1040 (¶ 7). After the hearing, Judge Darby held the mother in contempt of court for failing to admit her child for outpatient treatment; the mother was taken into custody and held for three days without appropriate due process. Id. Judge Darby, who did not have any prior history with the Commission, was publicly reprimanded, fined $500, and assessed costs of $100. Id. at 1044 (¶¶ 24, 28).

¶ 14. Unlike Judge Smith and Judge Darby, Judge Fowlkes had adjourned court and was outside the courtroom when he threatened to hold Gunn in contempt of court, and he did not follow through on that threat. Judges Smith and Darby actually held people in contempt and incarcerated them; those judges each were sanctioned with a fine, a public reprimand, and an assessment of costs. Smith, 78 So.3d at 895 (¶ 26); Darby, 75 So.3d at 1044 (¶ 28). Because Judge Fowlkes’s actions did not result in the unlawful deprivation of liberty of any person, the recommended public reprimand and assessment of court costs, without an additional fine, might be appropriate if Judge Fowlkes did not have a history before the Commission. Judge Darby and Judge Smith did not have a history of misconduct (although Judge Smith’s case involved multiple incidents). Judge Fowlkes, however, has been before the Commission twice before.

B. Lending prestige of judicial office to advance private interest

¶ 15. The Court has reviewed numerous cases in which judges lent the prestige of the judicial office to advance the private interest of others. For example, in Dear-man, Judge Dearman left a voice mail for a Florida circuit court judge identifying herself as a Mississippi justice court judge and recommending that the Florida judge set bond for a criminal defendant, who was Judge Dearman’s friend. Dearman, 73 So.3d at 1141 (¶ 2). Because Judge Dear-man had been before the Court recently on another matter that involved numerous violations, the Court imposed “suspension without pay for thirty days, a public reprimand, and costs of $100 upon her.” Id. at 1145 (¶ 17). The Court distinguished the punishment from that in a similar case, saying that while Judge Dearman’s conduct was “analogous to that in Thompson, in which we imposed only a public reprimand and costs, we find a harsher sentence is warranted in light of her recent misconduct.” Id. (citing Miss. Comm’n on Judicial Performance v. Thompson, 972 So.2d 582 (Miss.2008) overruled in part on other grounds by Boone, 60 So.3d 172).

¶ 16. Judge Thompson had inappropriately “interjected himself into a case” from which he was recused by attempting to talk to another judge about an arrest warrant against someone he knew and, after the other judge signed the warrant, Judge Thompson asked a deputy clerk not to issue it. Thompson, 972 So.2d at 587 (¶ 11). Judge Thompson had one prior disciplinary action against him, in which he had been privately admonished for participating in ex parte communications with parties concerning a pending matter. Id. at 588 (¶ 17). He was publicly reprimanded and assessed costs of $100. Id. at 590 (¶ 23).

¶ 17. In Mississippi Commission on Judicial Performance v. Brown, 761 So.2d 182 (Miss.2000), Judge Brown was charged with “willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” Id. at 184 (¶ 9). After Judge Brown’s son was arrested for a driving under the influence, Judge Brown contacted the judge assigned to the case, the arresting officer, and the arresting officer’s supervisor prior to the trial and throughout the appeal. Judge Brown defended against the charges; he admitted making the calls, but he denied any misconduct, saying he was acting only as a concerned father. Id. at 183-84 (¶¶ 8, 11). The Court held that the appropriate sanction was a public reprimand, a $500 fine, and an assessment of costs in the amount of $407.75. Id. at 186 (¶ 23).

18. Judge Fowlkes’s conduct did not rise to the level of that of Judges Dearman and Brown, who tried to talk to another judge about a case before them and attempted to influence the outcome of a pending case in favor of a friend or family member. Judge Fowlkes’s conduct is more akin to that of Judge Thompson, who tried to prevent an arrest warrant from being issued against someone he knew. Judge Thompson had one prior disciplinary action, but the Court found that it was unrelated, and he was given only a public reprimand and assessment of costs. Thompson, 972 So.2d at 590 (¶ 23). Judge Fowlkes, however, has been before the Commission twice before, and his prior misconduct is not entirely unrelated.

3. Magnitude of the offense and the harm suffered

¶ 19. Judge Fowlkes abused his contempt power, failed to be “patient, dignified, and courteous,” and impermissibly relied on the prestige of his judicial office to advance the private interests of himself and Blanchard. The Commission and Judge Fowlkes agree that Judge Fowlkes’s conduct “created the appearance” that he was influenced by his landlord-tenant relationship with Blanchard, “created the appearance of impropriety,” and resulted in “reduced public confidence in the integrity of the judiciary.” In addition to those wider public repercussions, Gunn was directly affected by Judge Fowlkes’s conduct because she was at the courthouse doing business in her line of work, and other people witnessed the dispute. Judge Fowlkes’s verbal altercation with Gunn took place in front of others in the hallway and in the clerk’s office, and Judge Fowlkes ended the heated conversation by having Gunn escorted from the clerk’s office by two police officers.

4. Isolated incident or pattern of misconduct

¶20. Judge Fowlkes has been investigated by the Commission twice before and sanctioned by this Court once before. In 2003, Judge Fowlkes was privately admonished after he acknowledged the impropriety of ex parte communication with litigants and using his influence to advance the private interests of others. Miss. Comm’n on Judicial Performance v. Fowlkes, 967 So.2d 12, 15 (¶ 17) (Miss.2007). In 2007, Judge Fowlkes was before the Court after the Commission determined that from 2004 to 2005 he had “repeatedly engaged in prohibited ex parte conversations with a litigant and offered advice as to actions the litigant should take to advance her case.” Id. The Court noted that this was “virtually the same type of judicial misconduct” for which Judge Fowlkes had been privately admonished only one year earlier. Id. at 14 (¶ 9). Because it was “not Judge Fowlkes’s maiden voyage to the Commission for the aforementioned conduct[,]” Judge Fowlkes was publicly reprimanded, suspended for thirty days without pay, and assessed $100 in costs. Id. at 16 (¶ 21). The conduct at issue here is not identical to Judge Fowlkes’s prior misconduct, as the instant case did not involve ex parte communication with a litigant, but the conduct is similar in that Judge Fowlkes again tried to use his influence to advance the private interests of others.

5. Willfulness of the conduct

¶ 21. The ease sub judice is the first to apply the “willfulness of the conduct” factor since we established it in Skinner. In that case we explained the factor as follows:

In examining the extent to which the conduct was willful, we will examine “whether the judge acted in bad faith, good faith, intentionally, knowingly, or negligently.” In re Coffey’s Case, 157 N.H. 156, 949 A.2d 102, 115 (2008).... “[Misconduct that is the result of deliberation is generally more serious than that of a spontaneous nature.” [Id.] at 115-16. For example, spontaneous conduct, such as provoked conduct, may fall on one end of the spectrum, and may indicate a lesser sanction. Planned, premeditated conduct may fall on the opposite end of the spectrum, indicating the appropriateness of a harsher sanction. Conduct that is knowing and/or deliberate, but not the result of premeditation, may fall between spontaneous and premeditated conduct. Certainly, the analysis of the extent of willfulness will allow for consideration of acts of dishonesty.

Skinner, 119 So.3d at 307 (¶ 32). Judge Skinner issued an order in a case from which he was recused, and the Court found that his conduct was willful because he knew or should have known that it was wrong to so. Id. at 301 (¶ 33). We held that his “actions certainly were not the product of provocation or a spontaneous decision[.]” Id. In the instant case, although Judge Fowlkes should have known that his conduct was inappropriate, there is no evidence of planning or premeditation, as he could not have known that Gunn was even going to be present at the courthouse that day. Judge Fowlkes’s conduct would fall closer to the “spontaneous” end of the spectrum, warranting lesser sanctions.

6. Exploitation of the judge’s position

¶ 22. In Skinner, we added to the Gibson factors the consideration of “the extent to which the conduct exploited the judge’s position to satisfy his or her personal desires or was intended to deprive the public of assets or funds rightfully belonging to it.” Skinner, 119 So.3d at 297 (¶ 32). We wrote that “[w]hen analyzing the extent to which the conduct exploited the judge’s position to satisfy personal desires, we will examine factors such as whether the judge received money, received favors, or otherwise acted in a manner indicative of any improper personal motivation.” Id. As discussed above, Judge Fowlkes’s conduct may have been resulted from his desire to ensure that he received timely rent payments from his tenant, and his actions could have been the result of “improper personal motivation.” The second part of the factor, whether the judge’s conduct “was intended to deprive the public of assets or funds rightfully belonging to it,” is not at issue here.

7. Mitigating or aggravating circumstances

¶ 23. In redefining the factors in Skinner, we noted that “inappropriateness of the action” could be considered under the aggravating circumstances factor. Skinner, 119 So.3d at 307 (¶ 32). We certainly find that Judge Fowlkes’s behavior toward Gunn was inappropriate. However, we have held that a judge’s public acknowledgment of the inappropriateness of his conduct is a mitigating factor. Smith, 78 So.3d at 895 (¶ 25), Although Judge Fowlkes first stated that he did not think his actions raised any integrity problems or reflected on his judgeship, he has since admitted that his actions were improper and violated the Code of Judicial Conduct. Thus, we accept Judge Fowlkes’s admission of wrongdoing in mitigation of his inappropriate conduct. The Commission and Judge Fowlkes state that there are no aggravating factors in the record, and the Court has found none.

¶ 24. .Although we appreciate cooperation with the Commission and we recognize the value of joint recommendations, which serve judicial economy and result in judges admitting wrongdoing, we advise the Commission not to disregard a judge’s pattern of misconduct and history before the Commission when recommending sanctions. While we accept a judge’s public acknowledgment of the inappropriateness of his conduct as a mitigating factor, it does not erase the past. As stated above, we must keep in mind that “the primary purpose of sanctions is ‘to restore and maintain the dignity and honor of the judicial office and to protect the public against future excesses,’ rather than punishment of the individual.” Skinner, 119 So.3d at 300 (¶ 12) (quoting Boone, 60 So.3d at 185). The public must be assured that the Commission and the Court take judicial misconduct seriously, and sanctions should be sufficient to restore the public’s confidence in the judicial system and in the judges of the state.

Conclusion

¶ 25. Judge Fowlkes attempted to use his judicial office to advance the private interests of his tenant, Blanchard, and by extension, his own private financial interests as Blanchard’s landlord. He was impatient and discourteous and abused his contempt power when arguing with Gunn. We conclude that Judge Fowlkes did indeed violate Canons 1, 2A, 2B, 3B(2), 3B(4), and 3C(1) of the Code of Judicial Conduct, and these violations also constituted a violation of Article 6, Section 177A of the Mississippi Constitution, because Judge Fowlkes’s conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

¶ 26. The Commission and Judge Fowlkes agreed on proposed sanctions of a public reprimand pursuant to Section 177A of the Mississippi Constitution and an assessment of costs of the proceedings in the amount of $200. They submit that the proposed sanctions are in line with similar cases and fit the offense. Were the instant offense Judge Fowlkes’s first, we would agree. However, we must remember that Judge Fowlkes has a history with the Commission and the Court. For Judge Fowlkes’s last offense, which was his second time before the Commission, he was publicly reprimanded, suspended for thirty days without pay, and assessed costs of $100. Fowlkes, 967 So.2d at 16 (¶ 21). Therefore, in addition to the agreed-upon public reprimand and $200 in costs, we assess a fíne in the amount of $1,000 against Judge Fowlkes.

¶ 27. MUNICIPAL COURT JUDGE ROBERT EARL FOWLKES SHALL BE PUBLICLY REPRIMANDED, FINED $1,000, AND ASSESSED COSTS OF $200. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE MONROE COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY VENIRE IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE FOWLKES IN ATTENDANCE.

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


author: LAMAR, Justice, DICKINSON, Presiding Justice, KITCHENS, Justice,

text:
    John Edward WRENN v. STATE of Mississippi.
    No. 2012-KA-00466-SCT.
    Supreme Court of Mississippi.
    Sept. 19, 2013.
    Sidney F. Beck, Jr., Olive Branch, attorney for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. John Edward Wrenn pleaded guilty to possession of a firearm by a convicted felon. Wrenn appeals from his conviction, alleging that: 1) Mississippi’s concealed-weapon statute, Section 97-87-1, precludes his conviction; and 2) he was denied effective assistance of counsel. Because Wrenn’s conviction is the result of a guilty plea, we dismiss this appeal.

FACTS

1Í 2. John Edward Wrenn became a convicted felon on February 28, 1992. On April 4, 2011, a Horn Lake police officer found a sawed-off shotgun in Wrenn’s truck during a traffic stop. A grand jury indicted Wrenn for violating Section 97-37-5 of the Mississippi Code, which prohibits a convicted felon from possessing a firearm. Wrenn pleaded guilty to the charge on November 9, 2011, and the case was continued for sentencing at a later date. Prior to his sentencing hearing, Wrenn filed a motion to set aside his guilty plea. The trial court denied Wrenn’s motion and sentenced him to serve ten years as an habitual offender. Wrenn appeals from his conviction, alleging that Mississippi’s concealed-weapon statute, Section 97-37-1, made his gun possession legal and claiming he did not receive effective assistance of counsel. The State responds that Wrenn’s appeal should be dismissed because “entering a guilty plea waives the right to directly appeal a conviction.”

LAW AND ANALYSIS

¶ 3. This Court has long recognized that “a litigant’s right to an appeal is statutory and ‘not based on any inherent common law or constitutional right.’ ” Our “well-established caselaw supports that a party has no right to appeal unless the Legislature gives such right by statute.” Section 99-35-101 of the Mississippi Code provides that “any person convicted of an offense in a circuit court may appeal to the Supreme Court” with the exception that, “where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” A criminal defendant may challenge a conviction in two ways: “(1) a direct appeal from a conviction, or (2) a proceeding under the Post Conviction Relief Act.” Because the right to appeal is a matter of legislative discretion, and no such right has been established when a conviction is the result of a guilty plea, a defendant challenging a conviction entered as result of guilty plea can do so only under the Post Conviction Relief Act.

¶ 4. It is undisputed that Wrenn pleaded guilty to violating Section 97-37-5. As such, Wrenn cannot appeal his conviction directly. Therefore, we dismiss this appeal without reaching the merits of Wrenn’s claims.

¶ 5. APPEAL DISMISSED.

WALLER, C.J., RANDOLPH, P.J., PIERCE AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ.; KITCHENS, J„ JOINS IN PART. KITCHENS, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ.; DICKINSON, P.J., JOINS IN PART.

DICKINSON, Presiding Justice,

dissenting:

¶ 6. Justice Lamar is correct that Wrenn has no right to file a direct appeal. But all agree that Wrenn is entitled to appellate review of his claim that his guilty plea was the result of ineffective assistance of counsel. So I share Justice Kitehens’s view that — in the interests of judicial economy and timely administration of justice — we should follow the Court of Appeals’ lead in Ducote v. State, by simply treating Wrenn’s appellate filing as a petition for post-conviction relief, rather than requiring him to refile the same papers with a different title. All the majority accomplishes today is to create unnecessary work for the Supreme Court Clerk, the circuit clerk, the defendant, and this Court.

CHANDLER AND KING, JJ., JOIN THIS OPINION. KITCHENS, J„ JOINS THIS OPINION IN PART.

KITCHENS, Justice,

dissenting:

¶ 7. I respectfully disagree with the majority’s dismissal of the appeal based on a rigid adherence to the legislature’s limitation of our appellate jurisdiction. Miss. Const, art. 6 § 146 (vesting this Court with “such jurisdiction as properly belongs to a court of appeals”); Miss.Code Ann. § 99-35-101 (Supp.2012) (prohibiting appeals “where the defendant enters a plea of guilty and is sentenced”). The issue before us is the trial court’s denial of Wrenn’s motion to withdraw his guilty plea, which unquestionably is a post-conviction matter. See Miss.Code Ann. § 99-39-5(l)(g) (Supp.2012) (listing as grounds for post-conviction relief a claim that the petitioner’s plea was made involuntarily). Yet, the majority refuses to entertain the merits because Wrenn filed his motion before the formal judgment of conviction was entered by the trial court. The issue was presented to the trial judge, and the claim has been thoroughly considered and correctly rejected; thus, to dismiss the claim at this point, after an appellate record has been compiled and briefing has been completed, wastes judicial resources and creates unnecessary delay. In this instance, the majority allows Section 99-35-101 to become a procedural obstacle to a prompt resolution of issues properly before us. See Jones v. City of Ridgeland, 48 So.3d 530, 537 (Miss.2010) (finding the “three-court rule” in Mississippi Code Section 11-51-81 an unconstitutional infringement on this Court’s power to promulgate rules of procedure and not a permissible legislative grant of jurisdiction). Accordingly, I would treat the motion to withdraw as a petition for post-conviction relief and affirm the trial court. See Ducote v. State, 970 So.2d 1309, 1315 (Miss.Ct.App.2007) (holding that the trial court did not err in treating post-plea motion as a petition' for post-conviction relief).

CHANDLER AND KING, JJ„ JOIN THIS OPINION. DICKINSON, P.J., JOINS THIS OPINION IN PART.

      . Wrenn was convicted of grand larceny on February 28, 1992, and burglary on May 24, 2000.

      . The Horn Lake police officer stopped Wrenn for driving under the influence.

      . See Miss.Code Ann. § 97-37-5 (Rev.2006).

      . Wrenn was sentenced as an habitual offender under Mississippi Code Section 99-19-81.

      . Jones v. Ridgeland, 48 So.3d 530, 536 (Miss.2010) (quoting Fleming v. State, 553 So.2d 505, 506) (Miss.1989)).

      . Jones, 48 So.3d. at 543 (Waller, C.J., concurring in part and in result). See Marshall v. State, 662 So.2d 566, 568-71 (Miss.1995) (stating that the "Legislature has plenary-power over appeals where the Mississippi Constitution has not limited this power,” and pointing out that the right to appeal is subject to legislative change); Gill v. Miss. Dep’t of Wildlife Conservation, 574 So.2d 586, 590 (Miss.1990) (recognizing that "a party has no right of appeal except insofar as it has been given by law”); Fleming v. State, 553 So.2d 505, 506 (Miss.1989) (stating that "[a]n appeal is a matter of statutory right and not based on any inherent common law or constitutional right”) (citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983)); Miller Transporters Ltd. v. Johnson, 252 Miss. 244, 249, 172 So.2d 542, 544 (Miss.1965) (asserting that "[t]he right to appeal is a statutory privilege, granted and defined by the legislature").

      .Miss.Code Ann. § 99-35-101 (Rev.2007). See Berry v. State, 722 So.2d 706, 707 (Miss.1998) (stating the Mississippi Supreme Court "does not have jurisdiction on direct appeal when only a guilty plea is being challenged”).

      . Fleming, 553 So.2d at 506.

      . Berry, 722 So.2d at 707 (Miss.1998).

      . Ducote v. State, 970 So.2d 1309, 1315 (Miss.Ct.App.2007).

      . Before 2008, Section 99-35-101 prohibited appeals "in any case where the defendant enters a plea of guilty.” The Court of Appeals has interpreted "this new language in Section 99-35-101 as denying both the Mississippi Supreme Court and [the Court of Appeals] jurisdiction to hear direct appeals from the trial court involving the merits of a criminal defendant’s guilty plea and/or the validity of a sentence imposed by the trial court based on that guilty plea.” Henderson v. State, 89 So.3d 598, 603 (Miss.Ct.App.2011). This Court has acknowledged the amendment, but has not addressed whether Section 99-35-101 would invalidate this Court’s determining that it has jurisdiction to consider direct appeals from the sentence, but not the guilty plea itself. See Burrough v. State, 9 So.3d 368, 374 n. 3 (Miss.2009) (citing 2008 Miss. Laws, ch. 457, § 1 (effective July 1, 2008)).


author: JESS H. DICKINSON, Presiding Justice,

text:
    Stevenson FORD, Petitioner v. STATE of Mississippi, Respondent.
    No. 2012-M-01318.
    Supreme Court of Mississippi.
    Sept. 26, 2013.
   ORDER

JESS H. DICKINSON, Presiding Justice,

for the Court.

This matter is before the Court on the Motion to Reinstate Direct Appeal filed by Stevenson Ford. The State of Mississippi’s response is also before us.

Ford was convicted of murder and sentenced to life imprisonment. On August 16, 2012, he filed an application for leave to proceed in the trial court on a motion for post-conviction collateral relief. Months later, on November 29, 2012, this Court remanded his case to the Circuit Court of Washington County for a hearing to determine whether he knowingly and intelligently waived his right to counsel on appeal. The circuit court found that Ford did not knowingly and intelligently waive his right to counsel on appeal; thus, it appointed the Indigent Appeals Division of the Office of the State Public Defender to represent Ford on appeal.

Ford now moves this Court to vacate the Court of Appeals’ decision in Ford v. State, 69 So.3d 788, (Miss.Ct.App.2011), withdraw the mandate, reinstate his appeal, and issue a briefing schedule.

After due consideration, we find that Ford’s petition should be granted.

IT IS THEREFORE ORDERED that the Motion to Reinstate Direct Appeal filed by Stevenson Ford is granted. The Court of Appeals’ decision in Ford v. State, 69 So.3d 788, (Miss.Ct.App.2011), is hereby vacated, the mandate is withdrawn, and Ford’s appeal is reinstated. The Clerk of this Court shall issue a briefing schedule, and the appeal in cause number 2012-KA-01318-SCT shall proceed.

IT IS FURTHER ORDERED that this Order be published and that the Clerk of this Court spread this Order upon the minutes of the Court and forward a true certified copy to West Publishing Company for publication in the advance sheets of the Southern Reporter, Third Series (Mississippi Edition).

SO ORDERED.

ALL JUSTICES AGREE.