author: ROLAND L. BELSOME, Judge. TOBIAS, J.,

text:
    STATE of Louisiana v. Dwayne HARVEY.
    No. 2008-KA-0217.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Brandi Dohre, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

|! A jury found Dwayne Harvey guilty of distribution of cocaine and possession with intent to distribute cocaine. As a second felony offender, Mr. Harvey was sentenced to serve sixty years at hard labor on count one and on count two he was sentenced to thirty years at hard labor. Mr. Harvey’s objections to the excessiveness of his sentences were denied. This appeal followed.

ERRORS PATENT

A review of the record fails to show that the district court restricted parole eligibility for the first two years of appellant’s sentences as required by La. R.S. 40:967 and La. R.S. 15:529.1. However, as per La. R.S. 15:301.1 A and State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with the restriction, even in the absence of the trial court’s failure to delineate the restriction. Thus, there is no need for this court to correct the sentence. See State v. Phillips, 2003-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

STATEMENT OF FACTS

On May 5, 2005, Detective Sislo was conducting surveillance in the area of Mandeville and North Derbigny Streets. He was conducting surveillance in that [2area because he had received a citizen complaint regarding drug activity. In the 1600 block of Mandeville Street, the detective observed a group loitering in front of a residence; hence, he parked his vehicle so that he could watch the group’s activity. While watching, he observed that Mr. Harvey would step into the street anytime a car would come down Mandeville Street, and he would lean towards the car as if to make contact with the people inside. Based on the detective’s experience, he believed that Mr. Harvey was trying to solicit customers.

As the detective continued to monitor him, Mr. Harvey met with a pedestrian. Detective Sislo observed the pedestrian give him money. Mr. Harvey then walked to the side of the house where he removed an object from under the siding of the house. He manipulated the object and then placed the object back under the siding. He then returned to the pedestrian and gave a small object to the pedestrian, who left. Because Detective Sislo believed he had just witnessed a narcotics transaction, he notified other officers working with him that there was activity in the area. Those officers relocated to the area to assist Detective Sislo. Detective Sislo told the other officers that Mr. Harvey was wearing a red baseball cap, a white undershirt, and blue jeans.

After the other officers relocated, a second pedestrian approached. The second pedestrian was later identified as appellant’s codefendant, Mr. Gardner. Mr. Gardner handed money to Mr. Harvey. Mr. Harvey again went to the side of the house, retrieved the object, which this time Detective Sislo said looked like a bag. He removed something from the bag and gave it to Mr. Gardner, who placed it under the brim of his white baseball cap. Mr. Gardner left the area and was followed by Detectives Robinson and Dalfares to Elysian Fields Avenue where he was stopped and found in possession of cocaine. Once Mr. Gardner was arrested, | .¡Detective Sis-lo advised Detectives Roccaforte and Dal-fares to arrest Mr. Harvey for distribution of cocaine. Detective Sislo then directed Detective Roccaforte to his stash on the side of the house, and a bag containing sixteen pieces of what appeared to be crack cocaine was retrieved. A search incident to his arrest found that he was in possession of one five dollar bill and five one dollar bills. Detective Sislo testified that during the entire time that he watched Mr. Harvey, no one else went to the side of the house. Both sides stipulated that the substance found in the bag retrieved by Officer Roccaforte tested positive for cocaine.

ASSIGNMENTS OF ERROR

On appeal Mr. Harvey first argues that the district court abused its discretion by overruling defense counsel’s objections to the state’s rebuttal argument that inferred that the burden of proof shifted to the appellant.

During the prosecutor’s rebuttal, the following colloquy occurred:

State: Now, when he wants — going back to this issue about other people, why didn’t they question other people, why didn’t they question other people, well, Detective Roccaforte and Detective Sislo told you they had — they weren’t doing anything, they were just there. So, what would they have to offer, why? Why question them?
And not only that, if the defendant was so concerned about hearing from them today, just like the State has access to Court to subpoena witnesses, he has that same access
Defense: Objection.
Court: I’ll overrule that.

In State v. Clark, 2001-2087 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, this court set forth the standard for determining whether a prosecutor’s remarks are so prejudicial as to warrant a new trial:

|4The scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.” Prosecutors may not resort to personal experience or turn argument into a plebiscite on crime. However, prosecutors have wide latitude in choosing closing argument tactics. Further, the trial judge has broad discretion in controlling the scope of closing arguments. Even if the prosecutor exceeds the bounds of proper argument, a reviewing court will not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. Even where the prosecutor’s statements are improper, credit should be accorded to the good sense and fair mindedness of the jurors who have heard the evidence.

Id., p. 15, 828 So.2d at 1183. (citations omitted)

The state’s rebuttal argument was in response to defense counsel’s argument alluding to the fact that the state failed to subpoena other people who were on the street at the time of the arrest who allegedly could have solidified the evidence either for or against appellant. The state was entitled to answer the arguments of defendant. State v. Baudier, 2000-1108 (La.App. 4 Cir. 5/23/01), 789 So.2d 696; La.C.Cr.P. art. 774. However, we find that the state exceeded the bounds of proper argument and the district court abused its discretion by overruling the defense’s objection. Further, the district court, at that time, should have instructed the jury to disregard the remarks and informed them of the state’s burden of proof.

Mr. Harvey contends that the “generic burden of proof instruction” the jury ultimately receives is not sufficient to overcome the prejudice created by the comments. We disagree. Even though the statements inferring that the defendant had a burden to disprove the charges against him were improper, we are not | sthoroughly convinced that it contributed to the verdict. Therefore, we find the abuse of discretion on the part of the trial court was a harmless error.

Next, Mr. Harvey contends that the district court abused its discretion by denying appellant’s motion for new trial after his codefendant testified that appellant did not sell him cocaine.

In State v. Price, 2002-0360 (La.App. 4 Cir. 4/02/03), 842 So.2d 491, this court set forth the standard for reviewing a trial court’s denial of a motion for new trial based upon a claim of newly-discovered evidence:

In order to obtain a new trial based on newly discovered evidence, a defendant must show: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of trial was not due to the defendant’s lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature that it would probably have changed the verdict of guilty. A trial court assessing the legal merits of a motion for new trial is given considerable latitude in evaluating the impact of newly discovered evidence on the verdict. The trial court has much discretion in ruling on a motion for new trial. Review of the trial court’s ruling is limited to determining whether the trial court abused its discretion.

Id., pp. 26-27, 842 So.2d at 508-509 (citations omitted).

The transcript of the hearing on the motion for new trial provides testimony from Mr. Harvey’s co-defendant, Mr. Gardner, stating that he did not purchase cocaine from appellant. Instead, he found the cocaine that he possessed on the ground as he was walking towards his friend’s house on Elysian Fields Avenue. He also indicated that he was stopped by police for no apparent reason.

|fiMr. Harvey did not establish that after due diligence he was unable to secure Mr. Gardner as a witness at the time of trial. Though the defense stated that Mr. Gardner was in violation of his probation, the defense failed to show that any attempt was made prior to trial to find him. Further, the state countered appellant’s insinuation that Mr. Gardner had absconded from the jurisdiction by noting that he was arrested in Orleans Parish the day after Mr. Harvey’s trial.

As to the probability that Mr. Gardner’s testimony would have changed the verdict, Mr. Harvey avers that the evidence would have impacted his conviction, especially with regard to the count involving distribution of cocaine to Mr. Gardner. However, the state argues that Mr. Gardner’s testimony that he found a single piece of cocaine lying on the ground as he was walking on Elysian Fields Avenue is somewhat incredible.

Notably, the district court was in the best position to view the demeanor of Mr. Gardner and to determine the veracity of his testimony. After hearing Mr. Gardner’s testimony, the district court denied Mr. Harvey’s motion for new trial. In light of the facts and evidence presented, we cannot find that the district court abused its discretion. See also State v. Perique, 340 So.2d 1369, 1376-77 (La. 1976), (where the court held that, after a joint trial where both defendants were found guilty, an allegation in a motion for new trial by one co-defendant that the other co-defendant will now testify on his behalf was not a sufficient ground for granting a motion for new trial).

By his final assignment of error, Mr. Harvey asserts that his sentences are excessive. The standard for evaluation in a claim for an excessive sentence is set forth in State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1:

17Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.

Id., p. 7, 839 So.2d at 4. (citations omitted).

Generally, the reviewing court must determine whether the trial judge adequately complied with the guidelines provided for in La.C.Cr.P. art. 894.1 and then whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983). Where the record clearly shows an adequate factual basis for the sentence, resentencing is unnecessary even when there has not been full compliance with Article 894.1. State v. Egana, 97-0318 (La.App. 4 Cir. 12/3/97), 703 So.2d 223.

In the present case, the appellant was convicted of distribution of cocaine and possession with the intent to distribute cocaine. After finding him to be a second felony offender, the district court sentenced appellant to serve sixty years at hard labor on the distribution count, the maximum sentence under La. R.S. 40:967 and La. R.S. 15:529.1. On the remaining count, he was sentenced to serve thirty years at hard labor as a second felony offender.

Is At the sentencing hearing, the district court considered several factors prior to imposing sentence. It first noted that while Mr. Harvey was on bond in the instant matter, he committed a crime remarkably similar to the facts here, and again the crime occurred on Mandeville Street; he was arrested after being found under a house in possession of 900 grams of marijuana and $790.00. These charges were pending before the court at the time of sentencing.

Second, the district court noted that Mr. Harvey lied to the court when he told the court that he missed his trial date of February 12, 2007 because his attorney told him to leave the building before he was arrested. The attorney denied ever having told him to leave.

Third, the district court noted that the pre-sentence investigation showed that he had three prior convictions in which he entered guilty pleas to possession of marijuana, simple robbery after having been originally charged with armed robbery, and possession of cocaine after having been originally charged with possession with intent to distribute cocaine. The court noted further that Mr. Harvey had served time in jail and on probation, yet every time he was released on probation, he again committed a crime. The court additionally noted its concern for the people who lived in the neighborhood where the instant and pending crimes occurred.

We find that the district court adequately complied with La. C.O.P. art 894.1. The court considered the totality of the circumstances, specifically noting that appellant had three prior convictions and a similar narcotics case still pending before it. See, State v. Calway, 98-2061 (La.App. 4 Cir. 11/17/99), 748 So.2d 1205.

|9The appellant contends that the facts of the pre-sentence investigation were not proven and therefore should not have been considered by the district court. However, he failed to offer any evidence to rebut the information relied upon by the district court or any mitigating factors at the sentencing. Thus, as in Calway, appellant’s criminal record and his actions appear to justify the imposition of the maximum sentence of sixty years for distribution of cocaine and the thirty-year sentence for possession with intent to distribute cocaine.

AFFIRMED.

TOBIAS, J., concurs in part and dissents in part.

TOBIAS, J.,

concurs in part and dissents in part.

1,1 respectfully concur in the result reached by the majority. The decision of the trial court is properly affirmed.

However, I respectfully dissent from the majoritys holding that the “state exceeded the bounds of proper argument and the district court abused its discretion by overruling the defense’s objection [during the prosecution’s rebuttal].” The prosecution’s statement that witnesses who were not called to testify were available to both the state and the defendant is merely a statement of fact and within the parameters of State v. Clark, 01-2087 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, and its progeny. Thus, I find no abuse of discretion or error of the part of the trial judge, and the majority errors in finding that the statement was harmless error. No error occurred, harmless or otherwise.

      . In its brief, the state begins by arguing that dle written motion for new trial was not filed in conformity with La.C.Cr.P. art. 854 because it merely alleged that the verdict was contrary to the law and evidence. Specifically, the state indicates that the motion did not contain the name of the witness, the facts to which the witness would testify, and information showing that the witness was not beyond the process of the court as required by the article. However, by not objecting to the defects in the written motion in the trial court, it would seem that the state waived this claim.

      . The sentencing range as a second felony offender is between fifteen and sixty years at hard labor.

      . Pursuant to State v. Shaw, 2006-2467 (La. 11/27/07), 969 So.2d 1233, appellant could be sentenced as a multiple offender on both convictions.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Derrick HOLT.
    No. 08-KA-1276.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.
    Rehearing Denied July 6, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, David Abdullah, James W. Adair, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Frank Sloan, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Derrick Holt, Angola, LA, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

| gDefendant/appellant, Derrick Holt (“Holt”), appeals his conviction on two counts of second degree murder committed on September 6, 2003, violations of La. R.S. 14:30.1. For the reasons that follow, we affirm.

Following his indictment for the murders, Holt filed a Motion to Appoint a Sanity Commission to Determine Competency to Stand Trial. The trial court ordered that a sanity commission be appointed to determine his competency to stand trial and to determine his I.Q., i.e., his level of mental retardation. Subsequently, after a sanity hearing, the trial court found that Holt was mildly mentally retarded but competent to stand trial. Two omnibus motions, including a Motion to Suppress, as well as Motion to Quash the Indictment as Constitutionally Deficient were denied. After a two-day trial, a twelve-person jury found the Holt guilty as charged, on both counts. A Motion for New Trial was filed, which the trial court denied, and, after sentencing delays were waived, the trial court sentenced Holt to life at hard labor without benefit of parole, probation, or | ^suspension of sentence on each count with the sentences to be served consecutively.

On appeal, Holt argues that the trial court erred in failing to give his requested jury charges on self-defense and in giving the jury an improper jury charge on reasonable doubt; he further argues that the erroneous jury instructions were not harmless error.

TRIAL PROCEEDINGS

Detective Nick Vega (“Detective Vega”) with the Jefferson Parish Sheriffs Office testified that, on September 6, 2003, at approximately 8:00 p.m., he assisted in responding to 911 hang up calls at 2037 Tuskegee Drive, in Marrero, Louisiana. Upon arrival, he saw a naked female, later identified as Narcissa Laymon (“Lay-mon”), lying face down half in the doorway. The door was ajar with the woman butted against it. As he approached the woman, he saw blood inside the doorway and into the living room. He called for medical assistance after he observed that the woman was struggling to breathe and had stab wound injuries to her back with blood seeping out.

Detective Vega also noticed another victim, a male later identified as L.C. Lewis (“Lewis”), who was located at the house next door, on the sidewalk by the driveway. The victim’s eyes were open; however, he was unresponsive. Detective Vega observed a “slit” in the male victim’s chest. Later in his investigation, Detective Vega interviewed the next-door neighbor who called the police, and then he searched the area for the suspect.

Ronald Jacks (“Jacks”) testified that, on the date of the incident, he drove to his mother’s home, which is next door to the crime scene. A neighbor of his mother’s, whom he identified as Holt, approached him and calmly asked for a big screwdriver because he had locked the children in the house. Jacks had seen Holt |4taking the children, who lived at 2037 Tuskegee, to school several times over a three-month period. Jacks offered Holt a small screwdriver and also offered to help him get into the house, but Holt declined. Jacks testified that he left Holt by the front window at 2037 Tuskegee. According to Jacks, a few minutes later his sister informed him that Holt dove through the window. Jacks testified that he called 911, and informed the police that he had given Holt a screwdriver. When he walked outside, he saw people standing in front of Laymon’s door. After he asked them to move, he saw Laymon lying down. Then, he saw a person in shadow running behind the house. Jacks gave a statement to the police, and he subsequently identified Holt in a photographic lineup.

Cindy Jacks, Jack’s sister, testified that, on the night of the incident, she saw a man walk across her mother’s yard, and then turn back around. According to Cindy Jacks, the man got the screwdriver after talking to her brother, Jacks. Then, the man returned to the house he shared with his girlfriend, who was killed that evening. She had seen the man on two prior occasions with his girlfriend and the two children. Cindy Jacks testified that later she saw the man hit the window with a screwdriver, and then throw his whole body into the window. She testified that she told her brother to call the police. A minute later, she saw a man, not Holt, run out of the house through the garage. Then, a few minutes later she saw another man run out of the front door of the house and collapse approximately two houses away. Cindy Jacks could not identify Holt in court.

Homicide Detective David Morales (“Detective Morales”) testified he participated as the scene investigator in the investigation with Sergeant Eddie Klein (“Sergeant Klein”). On the scene, Detective Morales noticed that a pane of glass in the lower left corner of the front twenty-pane window was broken. Some glass from the broken pane remained in the aluminum frame and one piece of glass |5was on the ground in front of the window. Detective Morales opined that there had been a struggle where Laymon was found, near the front door, because there were areas of blood caused by an arterial wound, disheveled furniture, and a broken chair. He also found a knife with a blood-like substance on it on a couch near the front door. In addition, he found a robe with cut marks between two sofas in the living room, close to the hallway and a torn piece of the robe was also found in the master bedroom connected to the doorknob. Detective Morales opined that the cut marks on the robe were caused by stabbing. There were also some blood patterns in the middle of the floor in the hallway and a blood-like substance on the rear bottom of the door and above the doorknob.

More bloody evidence was found in the kitchen, and there were footprints in blood that appeared to go toward the garage. In the garage, there was a vehicle and a washing machine, inside of which was a hammer with a blood-like substance on the head and a black-colored knife with a five-inch blade, towels, and a large shirt with a blood-like substance on them. There were more bloodied footprints of a tennis shoe leading out of the garage, as well as a swipe pattern blood transfer along the driver’s side of the vehicle, which Detective Morales opined was caused by someone passing by the vehicle, the only way in and out of the garage.

Dwanne Wiltz (“Wiltz”) testified that she was a co-worker and best friend of Laymon, She had met Holt, whom she identified in court, through Laymon at their jobsite. Wiltz testified that Laymon and Holt were dating, but not living together. Wiltz testified that, the morning after Laymon’s murder, and after she learned of the murder, Holt called her a few times. According to Wiltz, during the first telephone call at her jobsite, Holt identified himself and Wiltz also recognized his voice. Wiltz testified that Holt asked her if he had talked to Laymon, then told her, “[You] needed to call her because she was hurt real bad and that he had hurt her, |Bthat I needed to call and check on her.” Wiltz testified that she directed her co-workers to call 911, and kept Holt on the telephone as long as she could, in order for the police to catch him. According to Wiltz, in the first telephone call, Holt continued to repeat that he hurt Laymon and that Wiltz should call her. Holt did not describe the details at that time.

Wiltz testified that Holt called her a second time on her cell phone. Wiltz, who gave Holt her cell phone number in order to prolong the conversations with him, received a second call. According to Wiltz, she knew that Holt was trying to flee and needed money because he asked her for $68 to catch a bus to Atlanta. Under the impression that Lewis was the father of Wiltz’s children, Holt told Wiltz that “they [Lewis and Laymon] must have been meeting.” Wiltz testified that Lovell Lewis worked with her and Laymon, and when asked if Laymon and Lovell Lewis had started a relationship prior to the incident, Wiltz responded, “Yeah, I believe so.” During their second conversation, Holt repeatedly told her, that “they were making fools of me and him and, you know [Holt] had been watching them for a while and they, I guess they deserved what [sic] they were, you know, going to get or whatever because they just kept messing, making fools of us.” Holt also told Wiltz that he and Laymon had an argument earlier on the day of the incident.

Holt said that when he broke into the house Laymon, Lewis and Lewis’ brother, Lovell Lewis, were present. According to Wiltz, Holt told her that he went into the house through the window and hurt them, after he saw them holding hands and going toward the bedroom. Holt told her that he thought they were going to have sex and that he stabbed them. On a third call, Holt stated that he was trying to come to Wiltz’s house to hide out. According to Wiltz, during their telephone calls, Holt never expressed any remorse for his actions. She subsequently identified Holt in a photographic line-up.

|7Sergeant Klein of the Jefferson Parish Sheriffs Office testified that he participated in the investigation. According to Sergeant Klein, after interviewing the witnesses and using some postcards found in the home written to one of the victims, a photographic lineup was developed that included a photograph of Holt. After Holt was identified in the photographic lineup by Lovell Lewis, Jacks, and Cindy Jacks, an arrest warrant was prepared.

Sergeant Klein testified that Wiltz gave the police some telephone numbers connected to an address in New Orleans that assisted the police in locating Holt. When the police arrived at the address, Holt was walking in the street. He was advised of his rights, detained, and then transported to the New Orleans Police Department Sixth District. At the station, he was again advised of his rights using the rights form. Subsequently, Holt initialed each right, verbally acknowledged that he understood his rights, signed the form waiving his rights, and gave a statement. At that time, Holt identified himself as “Derrick McThiney.” However, Sergeant Klein testified that Holt went by both names and identified Holt in court as the person whom he interviewed and who signed the form.

According to his investigation, there were four people present during the murders: the victims, Lovell Lewis, and Holt. Sergeant Klein admitted that, during his statement, Holt said he was upset and in shock. Holt told him that “if he ‘knowed [sic] what the situation would have occurred [he] wouldn’t have went [sic] into that house.” Sergeant Klein acknowledged that photographs of Holt’s arms and hands showed cuts or lacerations and admitted that Holt told him that the cuts on his fingers occurred when he grabbed the blade of the knife. Sergeant Klein also conceded that some of the wounds on Holt’s arms appeared to be relatively fresh.

| sHolt’s statement was admitted into the record. In it Holt explained why he was also known as Derrick McThiney. Holt and Laymon had argued earlier in the day. When Holt returned to the house, his key did not work so he asked the neighbor for a screwdriver; while trying to take out the window pane, the glass broke. Holt let himself in and saw “Narcissa [Laymon]” in her robe and the guy with her said he was going to “go get my heat for this n_” Holt was shocked but not angry. Holt stated that the male victim reached for a knife, but Holt grabbed it first, cutting himself. He feared for his life. Holt stabbed the victim in the chest, but as the victim staggered toward the garage, Holt stabbed him in the back, leaving the knife in the victim. Laymon picked up a knife, and Holt wrested it from her and she fell. He stabbed her as she reached for something. She was on the floor at the time. He stabbed her again, in the back, as she went to the kitchen, because he thought she was going to get another knife. Lay-mon ran to the front door. Holt left out the front door. She was alive when he left. Holt got some other clothes to replace the bloodstained ones, which he threw away. He called a friend the next day to see if anyone had heard from her. He did not plan the murders.

Michael Rodrigue (“Rodrigue”), a convicted felon, testified that he met Holt while incarcerated in Angola because of Hurricane Katrina. Rodrigue testified that he asked Holt why he was in jail, and Holt told him that he killed two people, on Tuskegee Drive. Holt described how he committed the murders with two knives. According to Rodrigue, he did not know either of the murder victims or their families. Rodrigue testified that he sent letters to the District Attorney in order to prevent Holt from getting away with the murders because the same thing happened to his sister.

Rodrigue stated Holt told him that, on the date of the incident, he went to the store at Laymon’s, request. When Holt returned, a man told him that there was a 19car in the garage. Then, he got a screwdriver from someone across the street or next-door in order to get through the window because the door was locked and there was something placed behind it. After he got into the house, Holt took a knife from the kitchen, cuffed the knife under his hand to conceal it, and then went to the back. Rodrigue testified that Holt told him that Laymon and a man, presumably Lewis, were naked in bed together having sex. As Holt got to the door, Lewis got up. According to Rodrigue, Holt told him that he let Lewis get dressed, and then Lewis started walking down the hall. As soon as Lewis put his hand on the door of the garage, Holt began stabbing him in his back with a knife. Lewis and Holt began wrestling for the knife. Rodrigue testified that Holt described the floor as having “so much blood” that Lewis slipped in his own blood and fell. After Lewis fell, Holt got on top of him and started stabbing him. Laymon grabbed Holt in order to stop him. In response, Holt stabbed Lewis harder one time in his back with the knife, leaving one of the knives in Lewis’ back. According to Rodrigue, Lewis had to crawl under the garage door for assistance. Ro-drigue testified that Holt told him that he “got scared” because he did not know where Lewis was after he stabbed him; however, Holt told him that he knew Lewis was going to die.

Then, Holt just turned around and started stabbing Laymon in her back and shoulder with the knife. Rodrigue testified that Holt told him that Laymon tried to get away through the front door. However, something placed behind the door prevented her from escaping Holt in time and, therefore, “[Holt] did her at the door.” According to Rodrigue, Holt told him that at one point, he stabbed Laymon to her bone causing the knife to pop right out of his hand and allowing Laymon to get out the door. Her body fell in the front yard. According to Rodrigue, Holt | instated that “[w]hat he really was going to do was hold [Laymon] down, after he stabbed her, hold her down and just like smother her, let her die.”

Rodrigue testified that Holt told him that he ran outside, and then walked down Lapalco before going to someone’s house. Subsequently, Holt placed a call to a woman that he did not identify. A couple of minutes later, the police arrived. Ro-drigue also testified that Holt told him that he called Laymon’s mother to see if everything was okay. According to Rodrigue, Holt showed no remorse for the murders. According to Rodrigue, Holt told him that he was going to get away with the murders by seeing a psychiatrist and playing crazy.

Dr. Karen Ross, a forensic pathologist with the Jefferson Parish Coroner’s Office, testified that she did autopsies on Laymon and Lewis. Dr. Ross’ external examination of Laymon revealed multiple sharp force entry wounds to the front and back of the body, and Laymon’s wounds were consistent with the use of a knife. The wound into Laymon’s heart was “a very severe potentially lethal wound.” Another one of the multiple wounds, made while the victim was still alive, was on the lower side of Laymon’s left back, went through her stomach and liver into the diaphragm and left chest cavity. Dr. Ross testified that one of the major mechanisms of Lay-mon’s death was hemorrhage. In addition to the multiple stab wounds, Dr. Ross observed wounds to Laymon’s chin and head, as well as defensive wounds to her left hand and index finger. Dr. Ross testified that Laymon’s death was a homicide.

Dr. Ross testified that her external examination of Lewis revealed multiple sharp force entry wounds to the front and back of the body. One of those wounds made vertically on the right side of Lewis’ chest extended through the right lung downward into the inferior vena cave, a major blood vessel in the body. Dr. Ross described this wound as being lethal within minutes. Dr. Ross agreed all but one | nof the multiple stab wounds appeared to have been made with a knife. According to Dr. Ross, the remaining stab wound appeared to have been made with a flathead screwdriver. Dr. Ross also observed injuries to Lewis’ scalp, which included a fractured skull caused by the entry of a knife. According to Dr. Ross, Lewis also had wounds on his right ear and defensive wounds to his right hand and the back of his left middle finger. Dr. Ross testified that Lewis’ death was also a homicide.

Aiseha Prudhomme, a fingerprint expert with the Jefferson Parish Sheriffs Office, identified partial prints from broken glass at the crime scene as those of Derrick Holt.

ASSIGNMENT OF ERROR NUMBER ONE

Holt argues that the trial court erred in failing to give requested jury charges on self-defense, urging that this prevented him from presenting the defense to the jury. During trial and on appeal, Holt claims that the introduction of his statement by the State was sufficient evidence upon which to base the self-defense argument and that he was frightened after entering the residence because one of the men present had a gun. In addition, he argues that, through the testimony of Sergeant Klein, he showed that he had relatively fresh wounds at the time of his arrest and that the photographs taken at the time of his arrest showed wounds to his arms and fingers.

La.C.Cr.P. art. 802(1) provides that the trial court shall charge the jury on the law applicable to each case. The trial court is required to charge the jury on the law applicable to any defense theory when properly requested, which the jurors could reasonably infer from the evidence. The evidence presented, at trial, must support the requested special charge. The trial judge’s failure to give a requested jury instruction constitutes reversible error only when there is miscarriage of Injustice, prejudice to the substantial rights of the accused, or substantial violation of a constitutional or statutory right. In addition, the trial judge should give the requested special charge if it does not require qualification, limitation, or explanation, and if it is wholly pertinent and correct. La. C.Cr.P. art. 807.

A homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La. R.S. 14:20(A)(1). “A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” La. R.S. 14:21.

In the present case, the only evidence of self-defense came from Holt’s statement to the police that, when Lewis saw him, Lewis said he was going to “get some heat” and he and Holt both grabbed for a knife at the same time. However, Holt also stated that he stabbed the victim in the back as he staggered toward the garage. At that point, Holt was plainly not in imminent danger from Lewis. Further, Holt stated that he stabbed Laymon first as she was on the floor and again in the back as she moved toward the kitchen. Both victims exhibited defensive wounds, and the forensic evidence disclosed that Holt used more than one weapon on Lewis. In addition, Holt broke into the house holding a potential weapon, the screwdriver. He was clearly the aggressor and none of the evidence indicated that he wished to withdraw from any potential conflict.

In addition, the testimony of Wiltz shows that Holt began the attack when he saw the victims because they were making a fool of him and they deserved what happened to them. Rodrigue’s testimony evidenced that Holt planned to harm the | ^victims when he entered the residence. Under these circumstances, the jury could not have reasonably inferred self-defense and the evidence did not support a charge of self-defense. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Holt urges that the trial court erred in giving the jury an improper jury charge on reasonable doubt. He argues that the court violated his constitutional right to due process by including the word “substantial” in the jury instruction on reasonable doubt because it suggested a higher degree of doubt than is required for acquittal under the reasonable doubt standard.

In the present case, the trial court gave the following pertinent portion of the reasonable doubt instruction to the jury:

A person accused of a crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt. This doubt must be a reasonable one, that is, one found upon a real, tangible, substantial basis and not upon mere caprice, fancy or conjecture. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. It is the duty of this jury if not convinced of the guilt of the defendant beyond a reasonable doubt, to find him not guilty.

La.C.Cr.P. art. 804(A) states in pertinent part that “the court may, but is not required to, define ... ‘reasonable doubt’ or give any other or further charge upon the same than that contained in this article.” A jury charge is not incorrect when, taken as a whole, a reasonable person of ordinary intelligence would have no problem understanding the definition of reasonable doubt. When considering an allegedly improper jury instruction, a reviewing court must determine whether it is “reasonably likely” that the jury applied the challenged instruction in an | ^unconstitutional manner, not whether it is possible that the jury misapplied the instruction. In determining whether it is reasonably likely that the jurors misapplied the instruction, the challenged terms are considered in relation to the instructions as a whole. A conviction will not be reversed on grounds of an erroneous jury charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial.

This Court has previously found no error in the almost identical instruction. Similarly, using the above standards, we do not find error in the jury charge relating to reasonable doubt. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Holt argues that the jury might have returned a verdict of manslaughter on both counts, if it had been given the requested instruction on self-defense or correct charge on reasonable doubt, and, therefore, the errors were not harmless.

We have held hereinabove that there was no error in either the reasonable doubt instruction or in the refusal of the trial court to give the requested self-defense charge. Therefore, a harmless error analysis is unnecessary.

This assignment of error merits little consideration.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Holt claims that he received ineffective assistance of counsel because his counsel failed to plead him not guilty by reason of insanity, after the Sanity Commission found that he suffered from mental illness causing retardation. He contends that his mental illness, at the time of the offense, is an essential element of the crime, arguing that had he been pled not guilty by reason of insanity, then |lfithe trial judge would have been obligated to give an instruction on sanity, and the jury could have considered the evidence based on that instruction. Holt claims that, even though the Sanity Commission determined he was competent to stand trial, his attorney should have further investigated his mental illness. According to Holt, the insanity defense was the only plausible defense and, therefore, he was prejudiced by his counsel’s deficient performance.

An ineffective assistance of counsel claim is most appropriately addressed through an Application for Post-Conviction Relief filed in the trial court where a full evidentiary hearing can be conducted. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an Assignment of Error on appeal, it may be addressed in the interest of judicial economy. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La.C.Cr.P. arts. 924-930.8.

In the present case, the record is insufficient to address Holt’s particular claims of ineffective assistance of counsel. This claim should be addressed through post-conviction proceedings.

Attached to Holt’s pro se brief is an indeterminate document entitled “Oral Argument Review” in which the defendant asks us to “take consideration” of certain arguments for “discussion” at oral argument. Inasmuch as it itself is not a brief, and because two of these “arguments” have not been assigned as error in either the defense or the pro se brief, we need not consider them as assignments of error. Nevertheless, we deem it judicious to address the item as follows.

| ifiHolt avers there was sufficient evidence regarding the defense of justifiable homicide, which argument has already been addressed. Next, Holt appears to argue that the police investigation was incomplete and that there were discrepancies in the police reports. These matters generally involve questions of credibility that were resolved by the jury and are not reweighed on appeal. Finally, Holt argues that admission of the 911 tape of Lovell Lewis, absent his testimony, violated Holt’s right to face his accuser. At trial, two 911 tapes were admitted. It is unclear from the record whether Holt’s attorney objected to the Lovell Lewis tape’s admission at the trial, although he did so at the Motion to Suppress. A defendant cannot avail himself of an alleged error unless he made a contemporaneous objection at the time of the error. La.C.Cr.P. art. 841(A). Not only does an objection have to be made, but La.C.Cr.P. art. 841(A) requires that a defendant make known the grounds for his objection, and he is limited on appeal to those grounds articulated at trial. In the absence of any clear objection or articulated grounds for such, we will not consider this issue.

ERROR PATENT REVIEW

We have reviewed for errors patent and find none.

AFFIRMED.

      . State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516.

        . Id.

      . Id.

      . State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187.

      . State v. Martin, 04-924 (La.App. 5 Cir. 1/25/05), 895 So.2d 55 (citing Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994)).

        . Id.

      . Id.

      . See, State v. Harris, supra.

      . State v. Kron, 07-1024 (La.App. 5 Cir. 3/25/08), 983 So.2d 117, 120, writ denied, 08-0813 (La. 10/24/08), 992 So.2d 1039.

      . Id.


author: SULLIVAN, Judge.

text:
    STATE of Louisiana v. Eddy D. SIGLER.
    No. KA 09-138.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    William E. Tilley, District Attorney, 30th JDC, Leesville, LA, for Appellee, State of Louisiana.
    Mitchel M. Evans, Attorney at Law, DeRidder, LA, for Appellant, Eddy D. Si-gler.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   SULLIVAN, Judge.

The Defendant, Eddy P. Sigler, was charged in separate charging instruments with driving while intoxicated under La. R.S. 14:98(J) (district court docket number 74994), and careless operation, a violation of La.R.S. 32:58 (district court docket number 74995). On October 24, 2008, the cases were heard together, and the trial court found the Defendant guilty of violating La.R.S. 14:98(J), but acquitted the Defendant on the remaining charge.

The Defendant was sentenced to a fíne of $200.00 and sixty days in the parish jail, suspended and placed on six months of probation with conditions of probation imposed.

On November 3, 2008, the Defendant filed an appeal listing both district court docket numbers, which was granted on October 29, 2008.

On February 4, 2009, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed, as the judgment at issue was not appealable. No response was received.

The judgment at issue herein is not appealable pursuant to La. Code Crim.P. art. 912.1, therefore the appeal in the above-captioned case is hereby dismissed. See, e.g., State v. Palmer, 08-517 (La.4/2/09), 6 So.3d 749.

The Defendant-Appellant is hereby permitted to file a proper application for supervisory writs, in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than thirty (30) days from the date of this decision. The Defendant is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules — Courts of Appeal, Rule 4-3, as we hereby construe the motion for appeal as timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. DEFENDANT-APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.

      . Palmer, 6 So.3d 749. A blank is used for the edition of Southern Reporter since that reporter recently began a third edition.


author: AMY, Judge.

text:
    AIR SUPPLY, INC. d/b/a Country Living Estates v. Shannon Dawn REDD.
    No. 09-152.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Thomas 0. Wells, Alexandria, LA, for Plaintiff/Appellant, Air Supply, Inc.
    Thomas B. Wahlder, Alexandria, LA, for Defendant/Appellee, Shannon Dawn. Redd.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT and J. DAVID PAINTER, Judges.
   AMY, Judge.

_JjThe plaintiff, the lessor of a mobile home, brought a suit for damages against the defendant tenant, seeking to be reimbursed for the repair costs that the trailer’s condition allegedly necessitated. The trial court ruled in favor of the plaintiff, awarding him $1,108.90. The plaintiff appeals, asserting that the trial court erred in not awarding attorney fees pursuant to the written lease and in failing to award the total costs of alleged repairs. For the following reasons, we affirm.

Factual and Procedural Background

Pursuant to a written lease dated June 30, 2004, the plaintiff, Air Supply, Inc., d/b/a Country Living Estates, leased a six-year old mobile home to the defendant, Shannon Dawn Redd. The record indicates that the term of the lease was three months and that the parties entered into an oral contract, extending the term one more month. The plaintiff alleged that when the defendant vacated the mobile home, it “discovered that the mobile home had been damaged.” It made the necessary repairs and brought suit against the defendant in an effort to recover the costs of the repairs. Additionally, it sought to recover attorney fees pursuant to a provision in the written lease agreement, as well as the cost of removing a trailer owned by the defendant in accordance with an oral agreement entered into by the parties. Specifically, the petition reveals that the plaintiff sought $5,585.00.

The trial court, ruling in favor of the plaintiff, awarded $1,108.90. The plaintiff appeals, asserting the following assignments of error:

A. The trial court erred when it denied plaintiffs request for reasonable attorney fees in the amount of 25% of the total due as provided for in the lease contract;
B. The trial court erred when it ruled that there was no testimony that the defendant caused the damage;
li>,C. The trial court erred when it ruled that there was no evidence presented as to the condition of the trailer prior to defendant’s lease of the trailer;
D. The trial court erred when it failed to award plaintiff $300.00 for removal of the defendant’s other trailer;
E. The trial court erred when it failed to award plaintiff the sum of $450.00 for outstanding rent.
F. The trial court erred when it failed to award the total amount of the repair costs of $4,835.04.

Discussion

Damages

We will discuss the plaintiffs fourth, fifth, and sixth assignments of error first to determine the appropriateness of the damages awarded. The trial court’s written judgment reflects that damages were awarded for the following: paneling, a mirror, pesticide for roach control, two cleanings, service cleaning of air conditioner and heater, the balance owed on October 2004 rent, and the cost of moving the defendant’s old mobile home. The total amount awarded was $1,108.90.

On appeal, the plaintiff asserts that the trial court failed to award the cost of removing the defendant’s trailer ($300.00) and the sum of the outstanding rent ($450.00). Insofar as the judgment specifically includes an itemized list of the expenses accounted for in the award — two of which are the rent and the cost of removal of the mobile home — we find no merit to these assignments of error.

Further, the plaintiff argues that the trial court erred in failing to award the remainder of the repair costs sought. Particularly, it contends that Raphael Lu-neau, the owner of Air Supply d/b/a Country Living Estates, “testified that his company spent the sum of $4,835.04 to bring the trailer back up to its pre-lease condition. This fact was uncontroverted.”

|3We note that the amount awarded for actual repairs (the total amount less the balance owed for the October 2004 rent and the cost of removing the trailer) was $383.90. The trial court’s judgment indicates that the award for the repairs was based on photographs that were entered into evidence. We do not find that the trial court committed manifest error in rejecting the remaining claims for reimbursement, insofar as the only evidence to support the plaintiffs claims were his own testimony and his reliance on a presumption that since the defendant was the only one to live in the mobile home, she must have caused the damage. We find no indication that such a presumption is founded in the law. Further the trial court heard the testimony of both the plaintiff and the defendant and chose to believe that only the enumerated costs were warranted. Because that determination was based on the credibility of the two witnesses and was reasonable, we will not disturb it on appeal. See Rosell v. ESCO, 549 So.2d 840 (La.1989). Accordingly, the plaintiffs assignment of error relative to the amount of damages lacks merit.

Evidence

In his second and third assignments of error, the plaintiff contends that the trial court erred in ruling “that there was no testimony that the defendant caused the damage” and “that there was no evidence presented as to the condition of the trailer prior to the defendant’s lease of the trailer.” After reviewing the record, we find no error in the trial court’s rulings.

Concerning causation, the defendant admitted to causing some of the damages. However, the remainder of the allegations regarding the alleged damage to the trailer are supported solely by plaintiffs assumption and testimony that no one else could have damaged the trailer insofar as the defendant and her family were the only presidents living in the trailer during the relevant time period. The trial court, however, could have concluded that this limited testimony was insufficient to satisfy the plaintiffs burden.

Further, we do not consider the condition of the trailer prior to the defendant’s use as being a determinative factor. Regardless of the condition prior to the defendant residing there, the plaintiff is still required to prove that the defendant caused the damage. Without evidence proving causation, the prior condition of the trailer is inconsequential. Although the plaintiff testified that the trailer was in “mint condition” prior to the defendant’s use, the trial court could have rejected this statement. Further, no other evidence was produced to establish that the defendant was responsible for the trailer’s subsequent poor condition. Accordingly, these assignments are meritless.

Attorney Fees

The plaintiff asserts that the trial court erred by failing to award attorney fees pursuant to a provision in the lease entitled “ATTORNEY FEES AND COSTS” that stated, “[sjhould any claim in favor of the lessor upon this lease be in the amount of 25% of the claim, together with all cost, charges and expense.” Because this provision is lacking clarity, we do not find that the trial court erred in failing to award attorney fees.

DECREE

For the foregoing reasons, the judgment awarding the plaintiff $1,108.90 in damages is affirmed. The costs of this proceeding are assessed to the plaintiff, Air Supply, d/b/a Country Living Estates.

AFFIRMED.


author: DICKINSON, Justice, for the Court. GRAVES, Presiding Justice,

text:
    DEERE & COMPANY and Parker Tractor & Implement Company, Inc. v. FIRST NATIONAL BANK OF CLARKSDALE and Edward J. Johnson, Jr. d/b/a F & E Farm.
    No. 2007-IA-01362-SCT.
    Supreme Court of Mississippi.
    June 18, 2009.

      John B. Gillis, Oxford, Ken R. Adcock, Ridgeland, Attorneys for Appellant.
    Tom T. Ross, Jr., Dana J. Swan, Clarks-dale, Attorneys for Appellee.
   ON MOTION FOR REHEARING.

DICKINSON, Justice, for the Court.

¶ 1. The motion for rehearing filed by Deere & Company is denied. The original opinion is withdrawn, and these opinions are substituted therefor.

¶2. A farm-implement dealer sold a farmer a bad combine. The farmer sued the dealer in circuit court and won a judgment of $90,000. The dealer appealed, and we affirmed the judgment.

¶ 3. In an unrelated case, a bank took a $50,000 default judgment against the farmer in county court. The bank attempted to collect its county-court judgment by garnishing the money the farmer won against the dealer in circuit court.

¶ 4. The company that manufactured the combine was on the hook for the judgment against its dealer, so it intervened in the county-court garnishment action, claiming that the farmer’s circuit-court judgment could not be collected in county court because of other proceedings which had taken place in the federal courts.

¶ 5. The manufacturer filed a motion for summary judgment, which the county court denied. The manufacturer filed a motion for interlocutory appeal, which we granted.

BACKGROUND FACTS AND PROCEEDINGS

Preliminary statement

¶ 6. This case’s simple beginning belies its protracted course of complex litigation which began in 1994, when Edward Johnson (“Johnson”), purchased a John Deere combine for $153,173.36 from Parker Tractor & Implement Company (“Parker Tractor”). He paid for the combine using $30,634.36 of his own funds, and the balance from a loan (the “Loan”) he obtained from John Deere & Company (“Deere”). The combine stood as collateral for the loan, and Johnson was to make periodic loan payments to his creditor, Deere.

¶ 7. Parker Tractor’s delivery of the combine to Johnson was delayed due to wiring and electrical problems and, once delivered, the combine did not operate properly. In an attempt to revoke acceptance of the combine, Johnson wrote a letter to Deere, stating that Parker Tractor was unable to repair the problem he was having with the combine.

¶ 8. We think the labyrinth of facts to follow will be more easily digested if we pause here to point out that the record provides us no clue as to why Johnson attempted to revoke acceptance of the combine with Deere, who loaned him money, rather than with Parker Tractor, who sold him the combine. In one of the related cases, discussed later in this opinion, the United States Court of Appeals for the Fifth Circuit observed:

In this case, a central issue — which the parties pled, tried to the jury, retried in post-verdict motions, briefed, and orally argued on appeal — is whether Johnson effectively revoked the sale contract for the combine. Johnson entered into this contract with Parker. We note, in passing, that there is nothing in the record that suggests (1) that Deere and Parker are one entity or (2) that Parker assigned Deere its rights under the sale contract.
Moreover, even if we assumed that Deere, not Parker, had all the rights under the sale contract, this fact would still fail to explain why the parties vigorously litigated the validity of the underlying sale contract in this action for collection on a loan contract. The loan contract and the sale contract are independent unless there is a contractual provision which states otherwise. Neither contract contains such a provision.

Deere & Co. v. Johnson, 271 F.3d 613, 624 n. 1 (5th Cir.2001).

¶ 9. In any case, Deere refused to accept Johnson’s attempted revocation of acceptance. Consequently, Johnson refused to make payments to Deere on the loan, but he continued to use the combine for three farming seasons, from 1994 through the spring of 1996. Just prior to the 1996 season, the lawsuits began.

1. FEDERAL I — (Deere v. Johnson)

¶ 10. On September 26, 1995, Deere sued Johnson in the United States District Court for the Northern District of Mississippi, claiming Johnson had failed to make timely payments on the loan. Johnson counterclaimed against Deere, alleging, inter alia, that it had revoked acceptance of the combine because of numerous breaches of various warranties, and intentional misrepresentations.

2. STATE I — (Johnson v. Parker Tractor)

¶ 11. On October 3, 1995 — one week after Deere filed Federal I — Johnson sued Parker Tractor in the Coahoma County Circuit Court, claiming negligence and breach of warranty arising from Parker Tractor’s sale of the combine and failure to properly repair it. Deere was not a party to this litigation, but it agreed to indemnify and defend Parker Tractor. Parker Tractor & Implement Co. v. Johnson, 819 So.2d 1234 (Miss.2002).

¶ 12. In early 1998, while Federal I was still pending, State I proceeded to trial, and the jury rendered a verdict for Johnson in the amount of $150,000, which the trial court remitted in the amount of $60,000, resulting in a final judgment in favor of Johnson for $90,000. Id. at 1234. The $90,000 judgment was entered of record in February 1998. Deere, which had indemnified Parker Tractor, timely posted a supersedeas bond, and Parker Tractor appealed to this Court.

¶ 13. Meanwhile, in July 1998, while the State I appeal was pending, Johnson filed a motion for a continuance in the Federal I suit — which had been pending for more than two years — arguing that the ultimate outcome in State I would serve as collateral estoppel, res judicata, and/or issue preclusion in Federal J.

¶ 14. Johnson’s motion for continuance of Federal I was granted in April 1999. Nevertheless, for reasons unexplained by the record or the briefs filed by counsel, Federal I proceeded to trial in June 2000, while the appeal of State I was pending before this Court. The federal jury returned a verdict on Johnson’s claims against Deere in the amount of $30,634.36. However, because Johnson had used the combine without paying for it, the jury also awarded Deere $70,000 as the combine’s reasonable rental value. Deere & Co. v. Johnson, 271 F.3d 613, 615 (5th Cir.2001).

¶ 15. Both parties appealed. The Fifth Circuit — clearly baffled as to why revocation of acceptance was raised by Johnson against Deere — nevertheless affirmed Johnson’s verdict. It reversed the trial court’s finding of a quantum meruit recovery by Deere for Johnson’s use of the combine (because it was neither pleaded nor raised at trial), but allowed Deere a set-off which served to render the entire lawsuit “a wash.” The Fifth Circuit then remanded the case for entry of a “take-nothing” judgment, which the district court entered on January 11, 2002. Id.

¶ 16. Meanwhile, in the State I suit, this Court affirmed Johnson’s $90,000 State I judgment in the same month the federal district court entered the “take-nothing” judgment in Federal I — January 2002. Parker Tractor & Implement Co. v. Johnson, 819 So.2d 1234, 1242 (Miss.2002) (“State I”).

3. STATE II — (First National Bank v. Johnson)

¶ 17. Backing up five months to August 2001, while State I and Federal I were both pending, First National Bank of Clarksdale (“the Bank”) sued Johnson in the County Court of Coahoma County for collection of an unrelated promissory note. After obtaining a default judgment against Johnson in September 2001 for $50,439.08, the Bank cast its grateful eyes on Johnson’s $90,000 State I judgment (once it was affirmed by this Court), regarding the State I judgment as an excellent source of funds from which to collect its own judgment against Johnson. The Bank filed a writ of garnishment against the $90,000 judgment and, as discussed below, Deere later intervened in State II to stop the garnishment.

4. FEDERAL II — (Deere v. First National Bank and Johnson)

¶ 18. Deere had indemnified Parker Tractor for the judgment in State I. Thus, Deere filed suit against Johnson and First National Bank in the U.S. District Court for the Northern District of Mississippi, seeking to enjoin the garnishment action. Ordinarily, federal courts may not issue injunctions against state courts. 28 U.S.C. § 2283 (1948) (“Anti-Injunction Act”). However, Deere argued that the injunction it sought fit the exceptions under the act.

¶ 19. In September 2002, the district court refused to enjoin enforcement of Johnson’s State I judgment and dismissed Deere’s Federal II complaint for failure to state a claim. Deere appealed, and the following May, in an unpublished opinion, the Fifth Circuit affirmed the district court’s decision, citing federalism and its intent to protect the integrity of the state and federal judiciary. Deere & Co. v. Johnson, 67 Fed.Appx. 253 (5th Cir.2003).

The interlocutory appeal of State II

¶ 20. A month following its unsuccessful efforts in federal court, Deere moved to intervene in State II, claiming that its indemnity of Parker Tractor in State I provided it with standing and a sufficient interest in the litigation. Deere was permitted to intervene as an interested party in State II in October 2004, and it sought to have the county court declare the $90,000 judgment null and void, based upon Federal I’s “take-nothing” judgment.

¶ 21. Deere moved for summary judgment in November 2004, which the trial court denied. The trial court stayed all proceedings in State II and opined that the matter was proper for an interlocutory appeal to this Court. Accordingly, Deere filed its application for interlocutory appeal, raising the following issues:

I. Whether the trial court erred in denying Deere’s motion for summary judgment by not holding that collection on this Court’s judgment was precluded by the federal court judgment being satisfied.
II. Whether the trial court erred in its denial of summary judgment by holding that the last-in-time doctrine is inapplicable.
III. Whether the trial court erred in its denial of summary judgment by holding the federal court orders in Federal II to be the law of the case in the State II matter.

¶ 22. We granted Deere’s application for interlocutory appeal.

ANALYSIS

¶ 23. Interlocutory appeals are granted only to resolve a question of law, including the application of facts to that law. Miss. R.App. P. 5. We employ a de novo standard in reviewing questions of law. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (Miss.2002). We also review denials of summary judgment using a de novo standard. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238 (Miss.2007). A motion for summary judgment may be granted only if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing Miss. R. Civ. P. 56(c)). “The evidence must be viewed in the light most favorable to the nonmoving party.” Id. (citing Flores v. Elmer, 938 So.2d 824, 826 (Miss.2006)).

I.

¶ 24. We begin by addressing an issue not raised by the parties, but one of significant importance to our judicial system. The precise issue before us is whether to reverse the trial court’s denial of Deere’s motion for summary judgment. In essence, the issue is whether the county court may prevent Johnson from proceeding with collection of a judgment he obtained in the circuit court — a judgment which was affirmed by this Court on appeal, and was not attacked in the circuit court that rendered the judgment.

¶ 25. Although Deere’s brief argues that “the state court judgment is not enforceable,” this surface argument obscures the logical consequence which follows Deere’s premise. In effect, Deere asks the county-court judge to hold the State I judgment uncollectible because it was made void by a judgment rendered in the federal court.

¶ 26. We know of no statute, rule, or constitutional provision which permits a county court to invalidate a judgment rendered by a Mississippi circuit court and affirmed by this Court. Such attacks on a judgment are properly within the purview of Rule 60 of the Mississippi Rules of Civil Procedure, which provides in part:

(b) ... On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

Miss. R. Civ. P. 60(b). The comment to the rule provides that “[mjotions for relief under MRCP 60(b) are filed in the original action, rather than as independent actions themselves.”

¶ 27. In any case, the record before us says nothing of a Rule 60 motion, and neither party raised it on appeal. We therefore now proceed to address the issues raised.

II.

¶ 28. Deere argues that Johnson litigated the same breach-of-warranty causes of action in State I and Federal I. Citing City of Jackson v. Lakeland Lounge of Jackson, 688 So.2d 742, 749 (Miss.1996), Deere argues that there is a commonality in the “underlying facts and circumstances upon which a claim is asserted and relief is sought from the two actions.” Deere further asserts that the same issues of damages were argued in both cases because the causes of action were identical.

¶29. Based on the facts presented in the record before us, we cannot agree that State I and Federal I involved identical causes of action, arising out of a commonality of underlying facts and circumstances. Deere initiated Federal I to collect amounts due pursuant to the Loan between itself and Johnson. The record provides no evidence that the Loan involved Parker Tractor.

¶ 30. Furthermore, Johnson’s counterclaim against Deere asserted a claim of revocation of acceptance of the combine, a claim related to the seller, rather than the financier. Johnson’s State I suit included a claim of negligence, a claim not present in Federal I. And although both suits involved breach-of-warranty claims, the record does not clearly establish that these warranty claims are the same. Thus, we are not persuaded that the claims in State I and Federal I are identical. Since they are not, Deere’s argument — that the State I judgment was satisfied by the Federal I “take-nothing” judgment — has no merit.

III.

The “last-in-time” doctrine.

¶ 31. Deere next argues that we should apply the “last-in-time” doctrine to give precedence to the Federal I judgment over the State I judgment. According to the Restatement (Second) of Judgments: “When in two actions inconsistent final judgments are rendered, it is the later, not the earlier, judgment that is accorded conclusive effect in a third action under the rules of res judicata.” Restatement (Second) of Judgments § 15 (1982).

¶ 32. The comments to Section 15 state, in relevant part, that “when a prior judgment is not relied upon in a pending action in which it would have had conclusive effect as res judicata, the judgment in that action is valid even though it is inconsistent with the prior judgment.” Id. cmts. Deere argues that the judgment in Federal I is controlling because it was rendered after the judgment in State I, and Johnson did not assert res judicata in Federal I. We reject Deere’s argument.

¶ 33. We begin by pointing out the obvious: The “last-in-time” rule applies only where res judicata could have applied.

Res judicata

¶ 34. This Court has held that four identities must be present before the doctrine of res judicata will be applicable: (1) identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of the parties to the cause of action, and (4) identity of the quality or character of a person against whom the claim is made. Where these four identities are present, the parties will be prevented from re-litigating all issues tried in the prior lawsuit, as well as all matters which should have been litigated and decided in the prior suit.

Hogan v. Buckingham, 730 So.2d 15, 17 (Miss.1998). See also Walton v. Bourgeois, 512 So.2d 698, 701-702 (Miss.1987) (internal citations omitted).

¶ 35. Res judicata requires a finding of all four identities. Because we hold that the second identity — “identity of the cause of action” — clearly has not been established in this case, we find it unnecessary to address the other three identities.

¶ 36. In State I, Johnson sued Parker Tractor for negligence and breach of warranty. In Federal /, Deere sued Johnson for breach of his loan agreement, and Johnson counterclaimed against Deere for breach of its implied and express warranties, breach of the implied warranty of fitness for a particular purpose, and intentional misrepresentations.

¶ 37. Although Deere argues that the same breach-of-warranty claims are raised in both suits, it is unclear from the record before this Court whether that is so. The warranties for which a seller is responsible are not necessarily the same warranties for which a manufacturer is responsible— and the damages may be very different. See Royal Lincoln-Mercury Sales, Inc. v. Wallace, 415 So.2d 1024, 1027-28 (Miss.1982) (holding the implied warranty of merchantability is applicable only to the seller of a defective automobile, while the manufacturer could be held liable for breach of express warranties). Moreover, the cases cited by Deere to support its res judicata argument involve federal and state cases with identical parties. Clearly, that is not the case here.

¶ 38. Further, the federal action includes Johnson’s claim that he revoked acceptance of the combine. State I includes no such claim, but does include a negligence claim not found in Federal I. For these reasons, we hold that Deere has failed to establish the second identity required for res judicata to have conclusive effect and, therefore, the county-court judge in State II did not commit error in denying summary judgment.

¶ 39. Finally, contrary to Deere’s implication, Johnson asserted res judicata when he moved to have Federal I stayed pending the outcome of the State I appeal. Deere fails to convince us that Johnson should have done more to preserve his res judicata defense.

IV.

¶ 40. In its third and final issue raised on appeal, Deere asserts “that the trial court erred in denying [its] motion ... for summary judgment by concluding that under the ‘law-of-the-case’ doctrine, the district court order and the unpublished opinion of the Fifth Circuit in [Federal II ] are the law of the case in [State IIV’

¶41. The federal court in Federal II held the “last-in-time” rule did not apply because there was no identity of the causes of action in State I and Federal I. Deere argues, however, that the state court in State II should not have applied this holding from Federal II because it is not the law of the case in State II. While we agree with Deere that the Federal II holding is not binding as the law of the case as to State II, Deere’s argument nevertheless fails for the reasons stated above in section III.

CONCLUSION

¶42. For all of the above reasons, the Coahoma County Court’s denial of summary judgment is affirmed. This case is affirmed and remanded to that court for further proceedings consistent with this opinion.

¶ 43. AFFIRMED AND REMANDED.

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

GRAVES, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

APPENDIX A

GRAVES, Presiding Justice,

Dissenting.

¶44. As the majority correctly states, this case involves an underlying dispute over a John Deere & Company (Deere) combine purchased by Edward Johnson from Parker Tractor & Implement Company (Parker). I disagree with the majority’s analysis of the last-in-time doctrine and res judicata as they apply to the facts of this case. The majority’s analysis and conclusion are inconsistent with this Court’s prior caselaw regarding res judica-ta and the last-in-time doctrine. Today’s opinion only serves to cloud and confuse this area of law. Therefore, I respectfully dissent.

¶ 45. The factual and procedural history in this case are somewhat complex. Therefore, I will briefly restate the facts. On September 26, 1995, Deere sued Johnson in the Northern District of Mississippi (in what the majority terms “Federal /”) to recover the balance of the purchase price for the combine that Johnson bought from Parker. Johnson counterclaimed against Deere for, inter alia, breach of implied and express warranties.

¶ 46. On October 3, 1995, Johnson sued Parker in Coahoma County Circuit Court (in what the majority terms “State I ”) for, inter alia, breach of implied and express warranties and sought actual and punitive damages. The state case proceeded to trial, and Johnson was ultimately awarded $90,000 on February 13, 1998. Parker subsequently appealed to this Court, and Deere posted a supersedeas bond to stay the execution of the judgment.

¶ 47. On July 20, 1998, Johnson filed a motion to continue the case in federal court (in what the majority terms “Federal I”), citing the pending appeal in state court and referencing the legal principles of collateral estoppel, res judicata, and issue preclusion. Deere filed a motion in opposition, but on April 16, 1999, the district court granted Johnson’s motion for a continuance.

¶ 48. The majority does not mention that, after reviewing the appeal in state court (in “State I”), this Court reversed the circuit court judgment and ordered a new trial on November 4, 1999. Parker Tractor & Implement Co. v. Johnson, No. 98-CA-00457-SCT, 1999 WL 1000712, 1999 Miss. LEXIS 346 (Miss. Nov. 4, 1999). However, upon Johnson’s petition for rehearing, this Court subsequently affirmed the circuit court’s $90,000 judgment on January 10, 2002. Parker Tractor & Implement Co. v. Johnson, 819 So.2d 1234 (Miss.2002).

¶49. Although the federal case (‘Federal I ”) was initially continued in 1999, for some reason that is not clear from the record, the case proceeded to trial on June 5, 2000. The federal jury returned a verdict awarding $30,634.36 to Johnson and $70,000 to Deere. An appeal and cross-appeal were taken and, on November 12, 2001, the Fifth Circuit affirmed the judgment in favor of Johnson, but reversed the jury awards, declaring that the case was a “wash” and that neither party would receive an award. Deere & Co. v. Johnson, 271 F.3d 613 (5th Cir.2001). The Fifth Circuit accordingly remanded the case for the entry of a “take-nothing” judgment. Id.

¶ 50. Meanwhile, the present case was initiated when First National Bank of Clarksdale (First National Bank) sued Johnson in Coahoma County Court on August 8, 2001 (in what the majority terms “State II ”) for defaulting on a promissory note. On September 24, 2001, a default judgment was entered against Johnson for $50,439.08. First National Bank then obtained a writ of garnishment against Parker on the basis of the $90,000 judgment entered by the circuit court.

¶ 51. On January 28, 2002, Deere sued Johnson and First National Bank in the Northern District of Mississippi (in what the majority terms “Federal II”) to enjoin enforcement of the circuit court’s $90,000 judgment, citing the binding effect of the federal court’s “take-nothing” judgment. Johnson subsequently moved to dismiss. On September 24, 2002, the district court dismissed the case for failure to state a claim because “the state court case was tried to final judgment before the federal court case,” making the state court’s $90,000 judgment binding. The district court also cited the Anti-Injunction Act, 28 U.S.C. § 2283 (1948). On May 14, 2003, the Fifth Circuit affirmed the district court’s ruling. Deere & Co. v. Johnson, 67 Fed.Appx. 253, 2003 WL 21196191 (5th Cir.2003).

¶ 52. On June 23, 2003, Deere moved to intervene in First National Bank’s garnishment action (“State II”), as it had previously agreed to indemnify Parker for any damages related to the dispute over the combine. Deere later moved for summary judgment on November 24, 2004. The county court denied the motion for summary judgment, and Deere filed this interlocutory appeal.

Figure 1.

II.

¶ 53. This Court has adopted and applied the last-in-time rule. State ex rel. Moore v. Molpus, 578 So.2d 624, 641 (Miss.1991) (“[W]hen inconsistent final judgments are rendered in two actions, the judgment more recent in time is given conclusive effect in a later action.” (quoting Dimock v. Revere Copper Co., 117 U.S. 559, 566, 6 S.Ct. 855, 857-58, 29 L.Ed. 994, 997 (1886); Reimer v. Smith, 663 F.2d 1316, 1327 (5th Cir.1981); Garden Suburbs Golf & Country Club v. Murrell, 180 F.2d 435, 436 (5th Cir.1950); Donald v. J.J. White Lumber Co., 68 F.2d 441, 442, (5th Cir.1934); Marsh v. Mandeville, 28 Miss. 122, 128 (1854); Restatement (Second) of Judgments § 15 (1977); 2 E. Tuttle, Freeman On Judgments § 629 (5th ed.1925))); see also Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85 (1939). In Molpus, this Court held that a later case had conclusive effect, despite an earlier, inconsistent decision regarding the same state constitutional amendment. State ex rel. Moore v. Molpus, 578 So.2d 624 (Miss.1991). The dispute in Molpus involved a constitutional amendment from 1914 that gave the electorate the power to enact constitutional amendments and legislative measures and to reject acts passed by the Legislature. Id. at 627. After the amendment was passed, its validity was challenged, and this Court ruled that the amendment had been properly submitted, ratified, and added to the Constitution. State ex rel. Howie v. Brantley, 112 Miss. 812, 74 So. 662, 664 (1917). However, five years later, in a case involving parties distinct from those in Brantley, this Court held that the same constitutional amendment was void. Power v. Robertson, 130 Miss. 188, 93 So. 769, 775-77 (1922). In 1991, the plaintiffs in Molpus sought a declaratory judgment that the constitutional amendment from 1914 was valid and enforceable. Molpus, 578 So.2d at 631. The defendant asserted res judicata and collateral estoppel and cited this Court’s decision in Power. Id. After a lengthy analysis, this Court ultimately held that, of the two inconsistent judgments regarding the 1914 constitutional amendment that were reached in Brantley and then in Power, the more recent judgment in Power had binding effect. Id. at 641-42.

¶ 54. The last-in-time rule is also explained in the Restatements of the Law. The Restatement (Second) of Judgments sets out the last-in-time rule: “When in two actions inconsistent final judgments are rendered, it is the later, not the earlier, judgment that is accorded conclusive effect in a third action under the rules of res judicata.” Restatement (Second) of Judgments § 15 (1982). The comments to Section 15 state, in relevant part, that “when a prior judgment is not relied upon in a pending action in which it would have had conclusive effect as res judicata, the judgment in that action is valid even though it is inconsistent with the prior judgment.” Id. cmts.

¶ 55. Applying the last-in-time rule to this case, the federal court’s “take-nothing” judgment should be given conclusive effect. This Court’s affirmance of the circuit court’s $90,000 judgment was handed down in 2002, after the federal court’s “take-nothing” judgment was entered in 2001. However, this Court’s affirmance relates back to, and is considered effective as of, the date that the judgment was originally entered by the circuit court in 1998. See Norman v. Bucklew, 684 So.2d 1246, 1254 (Miss.1996) (citing Smith v. Malouf, 597 So.2d 1299, 1301 (Miss.1992)); see also Early v. Bd. of Supervisors, 182 Miss. 636, 181 So. 132, 132 (1938). In Norman, this Court stated that if a judgment is affirmed on appeal with supersede-as, “the effect thereof is to establish or confirm the validity of the judgment from and as the date of its rendition in the court of original jurisdiction.” Norman, 684 So.2d at 1254. Therefore, in this case, of the two judgments in question, the federal court’s “take-nothing” judgment is the last in time. See Figure 1.

¶ 56. Furthermore, contrary to the majority’s analysis, giving the federal court’s “take-nothing” judgment conclusive effect is consistent with the rules of res judicata. Res judicata applies when four identities are present: 1) identity of the subject matter of the action; 2) identity of the cause of action; 3) identity of the parties to the cause of action; and 4) identity of the quality or character of a person against whom the claim is made. Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1338-39 (Miss.1997); Norman, 684 So.2d at 1253.

¶ 57. The requirements for res judicata have been met in this case. First, the subject matter of the judgments involved — whether Deere or Parker is liable to Johnson for breach of implied and express warranties related to the allegedly faulty Deere combine that Johnson bought from Parker — is identical. Second, the causes of action are identical because Johnson’s claims against Deere and Parker arise out of the same transaction — Johnson’s purchase of the Deere combine from Parker. The majority appears unaware of the fact that Mississippi applies a transactional approach to determining whether causes of action are identical for purposes of applying res judicata. Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 234 (Miss.2005) (quoting Nevada v. U.S., 463 U.S. 110, 131 n. 12, 103 S.Ct. 2906, 2919, 77 L.Ed.2d 509, 525 (1983)) (finding that “causes of actions are the same if they arise from the same ‘transaction’ ”); Walton v. Bourgeois, 512 So.2d 698, 701 (Miss.1987) (concluding that res judicata barred plaintiffs second suit because “the underlying facts and circumstances are the same as those involved in the first suit”). Third, identity of the parties is present, since Parker (whom Johnson sued in the state case) and Deere (whom Johnson asserted counterclaims against in the federal case) are in privity as dealer and manufacturer, respectively. This Court has held that, for purposes of res judicata, parties in privity qualify as identical parties. Little, 704 So.2d at 1339; Norman, 684 So.2d at 1253; Molpus, 578 So.2d at 640. Fourth, the quality and character of the parties against whom the claims are made are also identical — Parker and Deere are corporate entities involved in selling the combine in question to Johnson.

¶ 58. In this case, Johnson initially sought a continuance of the federal court case by raising the defense of res judicata, but for some reason not explained in the record, the federal case eventually proceeded to a trial on the merits. The record does not suggest that Johnson made any further attempt to preserve his res judicata defense beyond seeking the initial continuance. Johnson has not provided any explanation of what occurred in federal court such that the case proceeded to trial despite the fact that a continuance had been granted. In allowing the case to proceed to trial, Johnson waived his res judicata defense. The comments to the Restatement (Second) on Judgments state that “[t]he considerations of policy which support the doctrine of res judicata are not so strong as to require that the court apply them of its own motion when the party himself has failed to claim such benefits as may flow from them.” Restatement (Second) on Judgments § 15 cmts. Along the same vein, this Court stated in Molpus that “in Power [i.e., the more recent of the two judgments involved] no one pleaded collateral estoppel, and we accept that then as now such matters are in the nature of affirmative defenses which are waived if not timely pleaded.” Molpus, 578 So.2d at 641 (citing Miss. R. Civ. P. 8(c)) (footnote omitted). Also, the pending appeal in state court would not have precluded Johnson from raising the defense of res judica-ta. This Court has previously adopted the view that an “appeal to the Supreme Court of Mississippi does not prevent [the judgment being appealed] from being res judi-cata.” Smith v. Malouf, 597 So.2d 1299, 1301 (Miss.1992) (quoting Miss. Power & Light Co. v. Town of Coldwater, 168 F.Supp. 463, 476 (N.D.Miss.1958)). This Court has also recognized that “[t]he various states have ruled with virtual unanimity that a judgment is ‘final’ for res judicata and collateral estoppel purposes even though pending on appeal.” Norman, 684 So.2d at 1255 (citations omitted).

¶ 59. It should further be noted that Johnson did not argue to the federal court that it should abstain from adjudicating the dispute since there was ongoing parallel litigation taking place in state court regarding the same cause of action. See Colo. River Water Conservation Dist. v. U.S., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Johnson failed to seek to prevent the federal case from proceeding to trial and reaching a final judgment. He should now be bound by the federal judgment pursuant to the last-in-time rule.

¶ 60. The last-in-time rule dictates that the federal court’s “take-nothing” judgment has conclusive effect in this matter. As a result, First National Bank cannot recover Johnson’s debt from Deere through the writ of garnishment obtained on the basis of the circuit court’s $90,000 judgment. Viewing all evidence in the light most favorable to First National Bank, the county court should have found for Deere as a matter of law on this ground and granted summary judgment. Therefore, I respectfully dissent.

KITCHENS, J., Joins this Opinion.

      . For those few souls in Mississippi not familiar with combines, they are farm implements used to harvest corn, wheat, and other grain crops.

      . See Appendix A for a timeline of events.

      . Although not at issue here, Justice Carlson's excellent recent opinion in Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900, 908-09 (Miss.2007), clarifies the law regarding remittiturs or additurs.

      . Deere opposed Johnson’s motion, claiming (contrary to its position in the matter before us today) the issues in the two lawsuits were different.

      . See Figure 1 for a timeline of relevant events in the procedural history of these cases.