author: BROWN, CHIEF JUDGE.

text:
    STATE of Louisiana, Appellee v. Luke Jarrod HUST, Appellant
    No. 51,015-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017

      PEGGY J. SULLIVAN, Louisiana Appellate Project, Counsel for Appellant
    STEPHEN TEW, District Attorney, Counsel for Appellee
    NEAL G. JOHNSON, CYNTHIA F. LAVESPERE, Assistant District Attorneys
    Before BROWN, DREW, and GARRETT, JJ.
   BROWN, CHIEF JUDGE.

| following a jury trial, defendant, Luke Jarrod Hust, was convicted of two counts of attempted first degree murder, in violation of La. R.S. 14:27 and La. R.S. 14:30, and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. Hust was subsequently adjudicated a third felony offender as to the possession of a firearm by a convicted felon conviction and a fourth felony offender as to the two attempted first degree murder convictions. Three consecutive life sentences were imposed. Hust has appealed, assigning four errors. Hust’s convictions and sentences are affirmed.

Facts

The testimony at trial established that late in the afternoon of May 21, 2015, Louisiana Department of Wildlife and Fisheries Agents Josh Harris and Scott Bullitt were in the Russell Sage Wildlife Area in Ouachita Parish. Agents Harris and Bullitt observed a Dodge Durango backed up and parked on the levee at the Wham Brake boat launch. Agent Harris testified that as the agents drove toward the truck, the driver of the Durango started his vehicle and drove toward the agents as if he were going to exit the park. Agent Harris explained that all persons who enter the wildlife management area are required to check in at the entry point, and all persons and vehicles in the park are subject to search.

The agents approached the brown truck and, through the open window, spoke to the driver, Toby Trichell. There was a male passenger in the Durango who identified himself as Clay Hust (he was later determined to be defendant, Luke Hust). Trichell and Hust got out of the vehicle to talk to the agents. Agent Bullitt testified that the area |ais known for drug activity; he walked to the levee where the Durango had been parked and found no evidence of illegal activity. Agent Harris conducted a field sobriety test on Trichell, but found no evidence of impairment. The agents explained to Trichell and Hust the park policy requiring that all persons to obtain a registration slip at the entry point into the wildlife management area.

Neither Trichell nor Hust had a valid driver’s license, and the truck’s inspection stickér was expired. Both agents testified that they intended to allow the men to contact someone to come and get them. Agent Bullitt stated that when Trichell could not produce a license, he acted extremely nervous. Trichell consented to a search of the Durango. The agents found small plastic baggies and lithium batteries, but no contraband. Trichell further consented to a search of his person, which revealed no contraband. Agent Bullitt, after observing Trichell, noted no signs of impairment. Agent Bullitt asked Trichell whether he had someone with a driver’s license who could come pick up his vehicle; at that time, Trichell was about to be let go by the agents.

Agent Bullitt then walked to the back of Trichell’s truck, where Agent , Harris and Hust were standing. Agent Bullitt asked Hust whether he was in possession of anything illegal. According to the agent, Hust threw his hands up in the search position and turned to face the truck. Agent Bullitt testified that he conducted a patdown search of Hust and felt a hard metallic object in Hust’s waistband which the agent believed was a pistol magazine. This caused Agent Bullitt some concern because where there is a magazine “it could be a weapon.” Agent Bullitt looked at Agent Harris to. signal that he had found something and began reaching for his handcuffs. Agents Harris Rand Bullitt both testified that when Agent Bullitt reached for the handcuffs, Hust took off running toward a nearby ditch, and they gave chase. While both agents pulled out Tasers, only Agent Harris deployed his Taser, which did not disable Hust. Agent Harris testified that just as Hust jumped the ditch and his feet hit the ground, Hust pulled out a black handgun. Agent Harris threw down his deployed Taser and “broke right” to run around the truck for cover. Agent Harris stated that he noticed two shots ricochet off the ground by his feet as he ran for cover, so he pulled out his gun and réturned fire. Agent Harris testified that the first time he pulled his weapon was after he felt the ricochet shots. Agent Harris reloaded his weapon once he was behind the vehicles, and it was at that time that he saw Trichell in the ditch with Agent Bullitt. Agent Harris testified that Trichell yelled to him, “Hey, your buddy was shot,” and Agent Harris radioed for help. The radio recordings to dispatch and the Ouachita Parish Sheriffs Office were introduced into evidence and played for the jury.

On cross-examination, Agent Harris restated that Hust was “at the ditch” when he pulled out his gun and began firing haphazardly in the direction of the agents. Agent Hams testified, “[Hust] was just on the other side of the ditch and that’s when I realized he had a firearm. ... He was pulling it out and turning over his right shoulder looking back towards the direction of Sgt. Bullitt. ... He fired.”

Toby Trichell’s testimony corroborated that of Agent Harris. Trichell stated that as he was trying to call someone to come pick up him and Hust up, Hust came running around the comer and grabbed at his shirt, which caused Trichell to fall down. It was then that he saw the agents pursuing Hust. Trichell also saw the gun in Hust’s hand before Hust jumped over the |4ditch. Trichell testified that although Hust was running away, he stopped and turned to shoot at the agents. “After [Hust] had went across the ditch is when he turned and started firing rounds.” Trichell explained that he was in the line of fire, so he was “laying low.” After the shooting stopped and Hust ran further into the woods, Triehell saw that Agent Bullitt had spun and fallen in the ditch where he was lying in deep water. Triehell ran to assist Agent Bullitt. Triehell yelled to Agent Harris that his partner had been hit and to call for help. He then reassured Agent Bullitt that he was trying to help, not hurt him, and Triehell held Agent Bullitt’s head above the water in the ditch until first responders arrived.

Agent Bullitt corroborated Agent Harris’s testimony and explained that when Hust started running, Bullitt pulled his Taser out, but when he saw that Hust had a gun, the agent dropped his Taser without deploying it and sought cover in the area of the ditch. Agent Bullitt testified that he recalled that Hust jumped the ditch before turning and firing, but he could not specifically remember Hust’s body position as he fired. Agent Bullitt stated that “I just remember falling in the ditch.” He knew he had been hit and felt numbness begin at his waist and move downward. Triehell came over to him and reassured him that help was on the way. Agent Bullitt underwent several surgeries and is paralyzed from the waist down. Agent Bullitt will be confined to a wheelchair and require ongoing medical treatment for the remainder of his life.

Deputy Mark Palmer testified that he responded to the call for assistance that evening. He arrived to find Triehell holding Agent Bullitt’s head and providing cover for him. Deputy Jared Benjamin testified that he also responded to the call for assistance and located Hust later that night | striding behind a brick column on the porch of his parents’ home. Hust, who was disheveled, coughing and throwing up, had in his possession a .40 caliber handgun. A firearms expert testified that bullet jackets found at the scene were consistent with a .40 caliber bullet.

The jury convicted Hust of two counts of attempted first degree murder and possession of a firearm by a convicted felon. He was subsequently, adjudicated a habitual offender as noted above and was sentenced to three consecutive life sentences. Hust now appeals.

Discussion

Sufficiency of the Evidence

The defense argues that the evidence was insufficient to convict Hust of attempted first degree murder because the state failed to prove that defendant had the specific intent to kill.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, -now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir. 1/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/6/09), 21 So.3d 297. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness | Rin whole or in part. State v. Eason, 43,788 (La.App. 2d Cir. 2/25/09), 3 So.3d 685, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

Thé Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,786 (La.App. 2d Cir. 1/14/09), 2 So.3d 582, writ denied, 09-0372 (La. 11/6/09), 21 So.3d 299.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App. 2d Cir. 2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2d Cir. 1/27/06), 921 So.2d 219, writ denied, 06-1083 (La. 11/9/06), 941 So.2d 35. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 05-0213 (La. 1/19/06), 921 So.2d 94.

La. R.S. 14:30 provides, in pertinent part, that first degree murder is the killing of a human being:

|7(A) (2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman, peace officer, or civilian employee of the Louisiana State Police Crime Laboratory or any other forensic laboratory engaged in the performance of his lawful duties, or when the specific intent to kill or to inflict great bodily harm is directly related to the victim’s status as a fireman, peace officer, or civilian employee.

For the purposes of Paragraph (A)(2) of this Section, the term “peace officer” means any peace officer as defined in La. R.S. 40:2402, which includes, inter alia, a commissioned wildlife enforcement agent.

La. R.S. 14:27 provides, in pertinent part:

(A) Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

The crime of attempted murder, whéther first or second degree, requires proof of the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Mitchell, 39,305 (La.App. 2d Cir. 2/17/05), 894 So.2d 1240, writ denied, 05-0741 (La. 6/3/05), 903 So.2d 457; State v. Girod, 94-853 (La. App. 5th Cir. 03/15/95), 653 So.2d 664. Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Because specific intent is a state of mind, it does not have to be proven as a fact, but may be inferred from the circumstances and the conduct of the accused. State v. Bishop, 01-2548 (La. 1/14/03), 835 So.2d 434.

Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing it at a person. State v. Reed, 14-1980 (La. 9/7/16), 200 So.3d 291; State v. Williams, 383 So.2d 369 (La. 1980). The fact that multiple shots are fired at a victim indicates a defendant’s [^culpable state of mind and satisfies the specific intent to kill requirement for murder. State v. Griffin, 618 So.2d 680 (La. App. 2d Cir. 1993), writ denied, 625 So.2d 1063 (La. 1993). See also State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000) (in which the court found that a defendant’s act of aiming a lethal weapon and discharging it in the direction of his victims supported a finding by the trier of fact that the defendant acted with the specific intent to kill).

Hust’s argument is that he was running from the agents and firing to deter them from chasing after him and that this does not show that he had the requisite intent to support the two attempted first degree murder convictions. The evidence presented at trial was sufficient for the jury to find that Hust possessed the specific intent to kill. The jury heard the testimony of three witnesses that Hust pulled a handgun while running, jumped the ditch, then turned and began to fire at the two agents before continuing to run into the woods. While Agent Harris testified that Hust was firing haphazardly, the testimony was consistent that, rather than continuing to flee, Hust turned and opened fire on the agents and did not stop shooting once Agent Harris had turned , and started to run away from Hust. Agent Bullitt specifically stated, “As I gave pursuit ... [Hust] jumped the ditch and turned around and he pulled out a pistol and shot me.” Hust’s deliberate and repeated firing at close range at the agents led the jury to reasonably infer that Hust possessed the specific intent to kill.

This assignment is without merit.

^Denial of Challenges for Cause

This case was highly publicized in the news media following the shooting. The majority of potential jurors in the jury pool had at least heard of the incident prior to being called for service. The defense exercised all of its peremptory challenges; thus, at issue on appeal are four challenges for cause made by the defense based upon the jurors’ knowledge of the case, all of which were denied by trial judge. The jurors at issue are Kimberly Fike, Toby Brock, Shane White and Lester Black.

Louisiana Constitution, art. I, § 17(A) guarantees a defendant the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. Both the defendant and the state are given 12 peremptory challenges in trials of offenses punishable by death or necessarily by imprisonment at hard labor. La. C. Cr. P. art. 799.

In addition to his constitutionally guaranteed peremptory challenges, a defendant may challenge a juror for cause on several grounds set forth in La. C. Cr. P. art. 797, which include that, inter alia:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict; or
(4) The juror will not accept the law as given to him by the court.

In a challenge for cause, the challenging party has the burden of showing that a prospective juror should be excluded based on one or more of |inthe grounds in La. C. Cr. P. art. 797. State v. White, 535 So.2d 929 (La. App. 2d Cir. 1988), writ denied, 537 So.2d 1161 (La. 1989). In this case, defendant exhausted his peremptory challenges. Reversible error is demonstrated and prejudice is presumed in cases in which a defense challenge for cause was erroneously denied and the defendant ultimately exhausted his peremptory challenges. State v. Coleman, 14-0402 (La. 2/26/16), 188 So.3d 174, cert. denied, — U.S. —, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016); State v. Jones, 03-3542 (La. 10/19/04), 884 So.2d 682. In such a case, a defendant is required to show that the trial court abused its discretion in denying any one of his challenges for cause. State v. Coleman, supra.

A trial court is vested with broad discretion in ruling on challenges for cause and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. Id.; State v. Tucker, 13-1631 (La. 9/1/15), 181 So.3d 590, cert. denied, — U.S. —, 136 S.Ct. 1801, 195 L.Ed.2d 774 (2016); State v. Cross, 93-1189 (La. 6/30/95), 658 So.2d 683; State v. Hampton, 50,561 (La.App. 2d Cir. 5/18/16), 195 So.3d 548.

A trial court’s refusal to disqualify a prospective juror is not an abuse of discretion or a reversible error if the perceived bias or impartiality of the prospective juror is properly remedied through rehabilitation. State v. Mickelson, 12-2539 (La. 9/3/14), 149 So.3d 178; State v. Howard, 98-0064 (La. 4/23/99), 751 So.2d 783, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). Even if a potential juror initially expresses doubt as to the accused’s innocence, he can serve as a competent juror if upon further questioning, he demonstrates an ability to set aside such doubt and follow the law. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382; State v. Hampton, supra. A prospective juror can be rehabilitated if the court is satisfied that the juror can render an impartial verdict according to the evidence and instructions given by the court. State v. Hampton, supra; State v. Broadway, 440 So.2d 828 (La. App. 2d Cir. 1983).

Kimberly Fike

During questioning, Ms. Fike indicated that she knew about the shooting of a wildlife and fisheries agent generally, but did not know any specific details. She also indicated that her youngest brother is a law enforcement officer in Kentucky. Ms. Fike initially agreed that this fact would tend to make her give more credibility to law enforcement officers than a lay person and “possibly” keep her from being a “fair juror.” Ms. Fike stated that the difficult job that law enforcement officers have might be a factor she would consider in any decision she would make. After further questioning, however, Ms. Fike acknowledged the seriousness of the charges against Hust and advised that “I’m being honest with you. I think I could. I think I could listen to the facts and give you my honest opinion.” Ms. Fike acknowledged that it would be “tough” in light of her brother’s involvement in law enforcement, but adamantly stated, “I still think I could listen to the evidence and make an unbiased decision.”

The defense challenged Ms. Fike on the basis that she has a brother involved in law enforcement, she had knowledge of the case and because she hesitated when initially asked if she could be fair. Defense counsel argued that Ms. Fike vacillated over whether she could be objective and indicated that she would consider an officer’s testimony over the testimony of a lay person. The state responded that Ms. Fike was clear that she. could be fair and impartial and had not yet made up her mind about Hust’s guilt or | ^innocence. The court found that Ms. Fike had been adequately rehabilitated and denied the challenge for cause.

On appeal, Hust argues that it was impossible for Ms. Fike not to be influenced by her ties to law enforcement, despite her good intentions, while the state maintains that Ms. Fike was rehabilitated. The trial judge was within his discretion in finding that Ms. Fike had been rehabilitated. Ms. Fike unequivocally stated that she could give Hust a fair trial and, while acknowledging her connection to law enforcement, she stated several times that she could listen to the evidence and render a fair verdict. See, State v. Noel, 15-617 (La.App. 3d Cir. 12/9/15), 181 So.3d 223; State v. Nelson, 09-807 (La. App. 5th Cir. 03/23/10), 39 So.3d 658.

Toby Brock

Mr. Brock stated that he knew of the shooting from the news, but had not followed the case closely. Mr. Brock’s wife had worked with Agent Bullitt’s wife prior to the shooting, and after the shooting she had texted Mrs. Bullitt to check on her. However, that was before Mrs. Bullitt left her husband and moved out of town, approximately a month after the incident. That was extent of Mr. Brock’s knowledge; he indicated that his wife had not said anything else to him about the shooting. Mr. Brock was aware of fundraisers that had been conducted for Agent Bullitt, but he was not asked to nor did he contribute.

When asked if it would cause problems for his wife at work if he was a juror and voted not guilty, Mr. Brock answered, “No. I wouldn’t think so. Because I’m just one of so many. I [would be] only one of 12 [jurors].” Mr. Brock agreed that he could “absolutely be fair” as a juror and he had no doubt about that.

[ isThe defense challenged Mr. Brock on the basis of his knowledge of the case and his wife’s connection to the former Mrs. Bullitt. The trial judge denied the challenge, noting that the women had only continued to work together for a month after the shooting. The judge pointed out that Mr. Brock stated he could be fair and impartial and had not formed any opinions as to guilt or innocence. There is no indication that the trial judge abused his discretion in concluding that this juror had been rehabilitated. See, State v. Batiste, 15-100 (La.App. 3d Cir. 6/3/15), 165 So.3d 1262.

Shane White

Mr. White advised that he knew of the case from the news, namely that someone had been pulled over for DUI and shots were fired. He also knew that Hust had been apprehended at his parents’ home. Mr. White hunts in the Wham Brake area and was interested in the story. He stated that he watched the live broadcast on the night of the shooting and into the following day because it was “close to home.” Mr. White attended a Whitetails Unliniited Banquet at which donations were being collected for Agent Bullitt. Mr. White saw Agent Bullitt at the banquet, but did not meet him. When asked if his emotions over Agent Bullitt’s injuries and condition would affect his service, Mr. White answered in the negative. Mr. White agreed that the state had the burden to prove Hust’s guilt and that he could be fair and impartial by only considering the evidence at trial and following the law.

The defense argued that Mr. White’s knowledge of and interest in the case, the fact that the story hit “close to home,” his attendance at a banquet that was a fundraiser for the victim and his respect for law enforcement supported a challenge for cause. The trial judge disagreed and, after careful ^^consideration, accepted Mr. White’s unequivocal statements that he could be fair and impartial and require the state to prove the defendant’s guilt, despite the concerns voiced by defense counsel. The trial judge did not abuse his discretion in denying this challenge for cause. See, State v. Roberson, 40,809 (La.App. 2d Cir. 4/19/06), 929 So.2d 789; State v. Jones, 15-0123 (La. App. 4th Cir. 12/02/15), 182 So.3d 251.

Lester Black

Mr. Black also knew of the case from news coverage and had seen a photograph of Hust as the suspect following the shooting. Mr. Black stated that he only knew that “a game warden got shot.” Mr. Black stated that he could be fair and impartial and that he would treat the testimony of law enforcement personnel the same as anyone else’s testimony. Mr. Black indicated that his cousin is a chaplain in the correctional center, and Mr. Black had asked his cousin about' the game warden who had been shot. Mr. Black stated that his cousin told him “that the man—the person that was accused of shooting was locked up. That’s all.” Mr. Black acknowledged that having a picture of the accused in his mind might make his job as a juror hard, but he consistently stated that he could put the picture out of his mind and consider all of the evidence.

The defense challenged Mr. Black based on his recollection of what Hust looked like from a photograph he saw some six months earlier in the news. While the trial judge acknowledged Mr. Black’s limited knowledge of the case, he noted that everyone in the courtroom could see Hust, and Mr. Black gave consistent answers that he could be fair and impartial and has not formed any opinion as to guilt or innocence. The trial judge’s denial of this challenge for cause was not in error. See State v. Roberson, supra; State v. Segura, 13-398 (La.App. 3d Cir. 12/11/13), 127 So.3d 1034, writ denied, 14-0067 (La. 06/20/14), 141 So.3d 286.

This assignment is without merit.

Denial of Motion for Change of Venue

On October 14, 2015, Hust filed a motion for change of venue, asserting that he could not obtain a fair and impartial trial in Ouachita Parish due to the local press coverage, social media, tainting of the jury pool, prejudice in the community at large and billboards and fundraising for Agent Bullitt in the community. Argument and a ruling on the motion were deferred until the jury was chosen. On appeal, Hust urges that the trial court erred in denying his motion for change of venue.

The grounds for a change of venue are set forth in La. C. Cr. P. art. 622, which provides that:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending. In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the von- dire examination or the testimony of witnesses at the trial.

A defendant has the burden to establish that he cannot obtain a fair trial in the current parish by showing more than just the public’s general knowledge or familiarity with the facts of the case to be entitled to a change of venue. State v. Magee, 11-0574 (La. 9/28/12), 103 So.3d 285, cert. denied, — U.S. —, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013); State v. Sparks, 88-0017 (La. 5/11/11), 68 So.3d 435; State v. Thompson, 49,483 (La.App. 2d Cir. 3/18/15), 163 So.3d 139. A defendant is not entitled to a | mjury entirely ignorant of his case and cannot prevail on a motion for change of venue simply by showing a general level of public awareness about the crime; he must show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. State v. Magee, supra; State v. Clark, 02-1463 (La. 6/27/03), 851 So.2d 1055, cert. denied, 540 U.S. 1190, 124 S.Ct. 1433, 158 L.Ed.2d 98 (2004); State v. Cope, 48,739 (La.App. 2d Cir. 4/9/14), 137 So.3d 151, writ denied, 14-1008 (La. 12/8/14), 153 So.3d 440.

In State v. Bell, 315 So.2d 307 (La. 1975), the supreme court enumerated several factors to be considered to determine whether a change of venue is necessary. These factors include: (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the dissemination of the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and, (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.

Whether a defendant has made the requisite showing of actual prejudice is a question addressed to the district court’s sound discretion, which will not be disturbed on appeal in the absence of a showing of error and abuse of discretion. State v. Magee, supra; State v. Cope, supra.

As noted above, the motion for change of venue was argued following jury selection. Defense counsel offered all of the testimony that was elicited from the potential jurors during voir dire and argued that approximately 70% 117of the jury veni-re had prior knowledge of the case from a source such as television, Internet, social media, newspaper and/or requests for donations. However, no additional evidence was introduced in the form of news stories, articles or otherwise. The trial judge recited the factors from State v. Bell, supra, specifically noting that: 1) there was full media coverage, but it was factual only and not over-sensationalized or a “media circus”; 2) most information was released from public officials such as the state police and was factual in nature; 3) while there was pretrial publicity, the time frame was short, there being only six months from arrest to trial; 4) the severity of the offense was great; 5) the area from which the jury is drawn is the entire parish and the news coverage reached the entire area; 6) there were prayer requests and fundraisers on behalf of Agent Bullitt; 7) there was no evidence of community-wide prejudice against the defendant.

In denying the motion, the trial judge expressly stated that, while many of the potential jurors had some general knowledge of the case, there had been no showing of widespread prejudice against Hust as the accused. Likewise, the trial judge noted that there had been an insufficient showing that any of the potential jurors were influenced, as shown in their voir dire testimony, by publicity that had occurred in the case. There has been no showing that the trial judge abused his wide discretion in denying the motion for change of venue.

This assignment of error is without merit.

Habitual Offender Adjudication

In his next assignment of error, Hust argues that his habitual offender adjudication should be vacated because the state failed to prove the nature of the predicate convictions, whether by plea or trial, the circumstances | ^surrounding the convictions and whether Hust was represented by counsel at the time of the predicate convictions.

The state ñled an amended habitual offender bill of information alleging the following predicate convictions:

Simple burglary of an inhabited dwelling, five counts, August 26, 2004, docket number 04F0898, Fourth JDC, Ouachita Parish, sentenced to nine years, first two without suspension, seven suspended with five years’ supervised probation; Aggravated flight, February 11, 2004, docket number 03F1633, Fourth JDC, Ouachita Parish, sentenced to two years at hard labor concurrent with sentence for simple burglary convictions above; Possession of Methamphetamine, October 16, 2Ó07, docket number 06F3214, Fourth JDC, Ouachita Parish, sentence to five years at hard labor.

The bill alleged that Hust should be adjudicated a fourth felony offender on each of the attempted first degree murder convictions and a third felony offender on the possession of- a firearm by a convicted felon conviction. On April 14, 2016, Hust was formally arraigned on the habitual offender bill; he entered a denial and waived delays for filing written objections to the bill. Thus, the hearing proceeded that date, followed by sentencing.

During the hearing, the state introduced the bill of information, the probation judgment and judgment of conviction on the five counts of simple burglary of an inhabited dwelling, and the- bill of information and probation judgment on the aggravated flight conviction. The court took judicial notice of the possession of methamphetamine conviction and the attendant bill of information and judgment' of conviction, as this prior conviction was raised and proven during trial. The only objection raised by the defense was to ensure that the possession of methamphetamine conviction would not be haused as an enhancement to the possession of a firearm conviction as it served as the underlying felony for that charge; hence Hust’s adjudication as a third felony offender on the possession of a firearm by a convicted felon charge.

La. R.S. 15:529.1D(1)(b) provides:

Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction alleged in the information was obtained in violation of the constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

A defendant has the right to challenge the constitutional- sufficiency of previous convictions through- a written response to the state’s filing of a habitual offender bill of information. La. R.S. 15:529.1(D.)(1). A defendant must make such a response in order to preserve challenges to previous convictions for appeal-able review. Id.; State v. Harris, 44,402 (La.App. 2d Cir. 6/24/09), 20 So.3d 1121, writ denied, 09-2303 (La. 4/23/10), 34 So.3d 271. The procedure set forth in La. R.S. 15:529.1(D)(1) requires the court in which the subsequent conviction , was obtained to bring the offender before the court, inform him of the allegations contained in the information and-of his rights, and require the offender to say whether the allegations are true. If the offender denies the allegation, refuses to answer, or remains silent, his plea or the fact of his silence is entered on the record and he shall be given 15 days to file particular objections to the information. Any | g(1challenge to the previous conviction or adjudication of delinquency not made before sentence is imposed may not thereafter be raised to attack the sentence. State v. Shawn Lewis, 49,542 (La.App. 2d Cir. 1/14/15), 161 So.3d 983; State v. Carlos Lewis, 43,402 (La.App. 2d Cir. 8/13/08), 990 So.2d 109; State v. Ponsell, 33,543 (La.App. 2d Cir. 8/23/00), 766 So.2d 678, writ denied, 00-2726 (La. 10/12/01), 799 So.2d 490.

As noted above, at his adjudication hearing, Hust, after an on-the-record discussion with his attorney and the judge, waived the delay for written objections to the habitual offender bill and made no objections to the introduction of the state’s documentation proving the predicate offenses. Hust failed to comply with La. R.S. 15:529.1(D)(1) and is barred from directly attacking the predicate convictions on appeal.

Conclusion

For the foregoing reasons, defendant’s convictions and sentences are affirmed.


source: Caselaw Access Project

author: DICKINSON, PRESIDING JUSTICE,

license: Public Domain

text:
    Marlena ROBINSON v. Ed MORGAN, in his Official Capacity as the Commissioner of Revenue of the Mississippi Department of Revenue
    NO. 2016-CA-00549-SCT
    Supreme Court of Mississippi.
    03/02/2017
    ATTORNEYS FOR APPELLANT: JAMES GARY McGEE, JR., WILLIAM HARRISON WEBB
    ATTORNEYS FOR APPELLEE: JON FRANCIS CARMER, JR., JOHN STEWART STRINGER
    BEFORE DICKINSON, P.J., KITCHENS AND MAXWELL, JJ.
   DICKINSON, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. Before January 1, 2015, Mississippi Code Section 27-77-7 required taxpayers wishing to appeal tax assessments affirmed by the Board of Tax Appeals to post surety bonds for half the assessed taxes or pay the taxes under protest. But the Legislature amended the statute to remove that bonding requirement for appeals from assessments imposed after the amendment’s effective date of January 1, 2015. Marlena Robinson failed to post a bond or pay her taxes when she appealed a February 4, 2014, tax assessment, so the chancellor dismissed her appeal. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Marlena Robinson and her former husband owned D <& M Enterprises, LLC. D & M incurred sales and -withholding tax liabilities throughout 2012 and 2013. But, in August 2013, D & M went out of business. So, on February 4, 2014, the Mississippi Department of Revenue assessed Robinson as the responsible person for the unpaid taxes.

¶ 3. Robinson challenged the assessment before the Department’s Board of Review, claiming she was not responsible for D & M’s fiscal management. The Board of Review upheld the assessment,, as did the Board of Tax Appeals. So on June 1, 2015, Robinson appealed to the Chancery Court for the First Judicial District of Hinds County under Mississippi Code Section 27-77-7.

¶ 4. The Department moved to dismiss the appeal, arguing the chancery court lacked jurisdiction because Robinson had failed to post a surety bond or pay the assessed taxes. The chancellor granted the motion and Robinson appealed to this Court, arguing the chancellor erred because the pre-amendment bond or payment requirement should not apply to an appeal filed after the amendment’s effective date.

ANALYSIS

¶ 5. When “taxpayers fail[ ] to comply with the statutory requirements by either paying their taxes under protest before appealing, or posting a surety bond with their petition[,] ... the chancery court lack[s] appellate jurisdiction over the taxpayers’ appeal.”

¶ 6. Before January 1, 2015, Mississippi Code Section 27-77-7 stated:

A petition filed by a taxpayer under subsection (1) of this section that appeals an order of the Board of Tax Appeals affirming a tax assessment shall be accompanied by a surety bond approved by the clerk of the court in a sum half the amount in controversy, conditioned to pay the judgment of the court. ... As an alternative to the posting of bond, a taxpayer appealing an order of the Board of Tax Appeals affirming a tax assessment may, prior to the filing of the petition, pay to the agency, under protest, the amount ordered by the Board of Tax Appeals to be paid and seek a refund of such taxes, plus interest thereon, in the appeal.

But now, Mississippi Code Section 27-77-7 states:

Unless otherwise ordered by the chancery court upon motion by the agency, no taxpayer appealing an order of the Board of Tax Appeals under this section shall be required to post security or a bond, or otherwise pay to the agency, under protest or otherwise, any contested taxes, interest, penalties or other amounts.

¶ 7. The Mississippi Legislature passed this amendment in House Bill 799 during the 2014 legislative session. House Bill 799 provided that the amendment would “take effect and be in force from and after January 1, 2015.” But House Bill 799 contained a saving clause, which states in pertinent part:

The provisions of the laws relating to the ... judicial review of such actions which were in effect prior .to the effective date of this act are expressly continued in full force, effect and operation for the purpose of providing ... judicial review of any assessment ... where the initial date of said assessment ... is before the date on which this act becomes effective.

¶ 8. Under this clause, the effective statutory provisions for pursuing judicial review depend on the date of the assessment, not the date of the appeal. When the assessment occurred on February 4, 2014, the bond requirement, was in effect, so under the saving clause, it matters not that the appeal occurred after the amendment’s effective date.

¶ 9. But Robinson argues the saving clause should not apply for several reasons. First, she believes the saving clause is ambiguous and should be interpreted in favor of the taxpayer. Robinson’s alleged ambiguity arises from the fact that the present version of the statute says “no taxpayer ... shall be required to post security or a bond, or otherwise pay to the agency, under protest' or otherwise, any contested taxes.” In other words, Robinson believes the Court cannot give literal effect to both the present language in the statute and that in the saving clause because the statute states no taxpayer shall be required to post a bond, but the saving clause would do that very thing.

¶ 10. But this simply is the nature of a saving clause. Black’s Law Dictionary defines “saving clause” as “[a] statutory provision exempting from coverage something that would otherwise be included. A saving clause is generally used in a repealing act to preserve rights and claims that would otherwise be lost.” When the Legislature amends a statute and inserts a clause providing that the old version will apply to certain cases, applying the old law to those cases. necessarily will conflict with the amended version.

¶ 11. Next, Robinson raises concerns about how the saving clause has been codified, and whether litigants can be expected to know it exists. House Bill 799 amended seventeen statutes. The Legislature divided the bill into twenty sections. Each of the first seventeen sections contained the text of one amended statute. Sections eighteen through twenty contained provisions about when the amendments would take effect. Section twenty provided the general effective date for the amendments, January 1, 2015. But section nineteen contained the saving clause.

¶ 12. When LexisNexis published the amendments in the 2016 supplement to Title 27 of its published code, it included the language of section nineteen in an “Editor’s Note” following Section 27-77-7. This Editor’s Note is followed by an “Amendment Note” which includes the January 1,2015, effective date.

¶ 13. Robinson argues it is unfair to expect a litigant to identify and follow a saving clause found in the Editor’s Note. But the Editor’s Note immediately follows Section 27-77-7, in the same section where one must look to find the amendment’s effective date. It accurately states the language adopted by the Legislature in House Bill 799. Further, Robinson cites no authority supporting the contention that she is excused from a statutory requirement because of how the publisher organized the code. Further, even if the saving clause were omitted in LexisNexis’s published code, the General Laws of Mississippi—with the provision included—would control.

CONCLUSION

¶ 14. We affirm the chancellor’s decision to dismiss this appeal. Robinson admits she neither posted a bond nor paid her assessed taxes under protest. This Court has held this requirement must be fulfilled for the chancery court to have appellate jurisdiction. And, while the Legislature has eliminated the bond or payment requirement, the saving clause in House Bill 799 leaves Robinson subject to the pre-amendment version of the statute.

¶ 15. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . Miss. Code Ann. § 27-77-7(3) (Rev. 2010).

      . Miss. Code Ann. § 27-77-7 (Supp. 2016) (editor's note).

      . Southside, Inc. v. Miss. Dep't of Revenue, 158 So.3d 277, 279 (Miss. 2014).

      . Miss. Code Ann. § 27-77-7(3) (Rev. 2010).

      . Miss. Code Ann. § 27-77-7(3) (Supp. 2016).

      . 2014 Miss. Laws ch. 476.

      . Id.

      . Id.

      . Miss. Code Ann. § 27-77-7(3) (Supp. 2016).

      . Saving Clause, Black's Law Dictionary 1146 (abr. 9th ed.).

      . 2014 Miss, Laws ch. 476.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Miss. Code Ann. § 27-77-7 (Supp. 2016) (editor's note).

      . Id.

      . Miss. Code Ann. § 1-1-8 (Rev, 2014) ("[I]f there is any conflict between the language of any statute as it appears in the Mississippi Code of 1972 Annotated and in the General Laws of Mississippi, the language in the General Laws shall control.”).


text:
    TRK, LLC d/b/a Timber Ridge Townhouse Apartments, B & B Management Group, LLC and Tara Burnside v. Vivian MYLES, Individually and on behalf of all wrongful death beneficiaries of Enrique L. Myles, Deceased and/or LJW., a Minor, By and Through her mother and next friend, Janna Warnsley
    NO. 2014-IA-00854-SCT
    Supreme Court of Mississippi.
    03/02/2017

      ATTORNEYS FOR APPELLANTS: JAMES GRADY WYLY, III, MICHAEL FRANKLIN HELD, ADAM B. HARRIS, GULFPORT
    ATTORNEYS FOR APPELLEES: JAMES ASHLEY OGDEN, JAMES W. SMITH, JR., JACKSON, BERNARD C. JONES, JR., SHANNON M. JONES, ASHLEY JONES MOSLEY, RIDGE-LAND
   DICKINSON, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. After Enrique Myles’s death, his mother—Vivian Myles—filed this wrongful-death suit. Later, the parties became aware Enrique was survived by a minor child—LJW. Rather than dismissing the case for lack of standing, as requested by the defendant, the circuit judge allowed LJW to be substituted as the plaintiff. This interlocutory appeal of that decision followed, raising two related questions. First, when a decedent is survived by his child, does the decedent’s mother have standing to file a wrongful-death action? Second, if not, must the circuit judge dismiss the complaint, or may the circuit judge remedy the lack of standing by substituting the child as plaintiff?

¶ 2. Because Mississippi’s wrongful-death statute specifically grants- the decedent’s mother standing to file the wrongful-death suit, even where a surviving child exists, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Vivian Myles—who is Enrique L. Myles’s mother, and who believed she was his sole heir—filed this wrongful-death lawsuit on behalf of Enrique’s wrongful-death beneficiaries. The defendants answered but later requested a stay when Janna Warnsley claimed that Enrique was the natural father of her child. The defendants argued that if Enrique was the child’s father, Vivian lacked standing to file the suit. The defendants later supplemented their motion with a copy of the chancery-court petition, claiming that “Enrique L. Myles is the natural father of [LJW],” and asking the chancellor to find that LJW was Enrique’s sole wrongful-death beneficiary.

¶ 4. LJW, by and through her mother, then moved to intervene in the wrongful-death action. Vivian responded; stating she had no objection to LJW’s intervention. The defendants, however, opposed LJW’s intervention, insisting that if LJW was a wrongful-death beneficiary, then Vivian was not and the lawsuit had to be dismissed because the filing plaintiff lacked standing.

¶ 5. After the circuit judge denied the defendants’ requested stay, the defendants moved for summary judgment, claiming that the chancery court had adjudicated LJW to be Enrique’s heir, that Vivian lacked standing, and that the wrongful-death action had to be dismissed. In response, LJW moved to substitute herself as plaintiff. Vivian responded, arguing she had standing to file the wrongful-death action, and that LJW’s existence did no more than to deny her a right to recover damages. She did not oppose LJW’s motion to substitute.

¶6. During the hearing on the motion for summary judgment, Vivian’s counsel suggested any issue of standing could be remedied if she voluntarily dismissed her complaint and LJW filed a new one. The defendants responded that the case must be dismissed by the court as a matter of law. So the circuit judge heard the parties’, arguments on the merits and later denied the defendants’ summary-judgment motion and granted the motion to substitute. The defendants then petitioned this Court for interlocutory appeal. We granted the petition and stayed proceedings in the circuit court.

¶ 7. Later, LJW and Vivian filed a motion to dismiss the appeal, stating:

4. Plaintiff Vivian Myles, AGREES with the Petitioners that she did not have standing to sue as the wrongful death beneficiary, as the deceased had an unborn child at the time of his death. This heir would be the person with the proper standing to bring the suit. A paternity test has confirmed the minor child is the sole heir to the deceased. Enrique Myles’ minor child, LJW, at the time of his death, was his sole wrongful death beneficiary and hen at law with proper standing to file suit.
5. Respondent agrees LJW, at the time of Entique Myles’ death, was the sole heir and wrongful death beneficiary. Further,' Petitioners concede that LJW is a proper party plaintiff and wrongful death beneficiary and heir.
6. Respondent agrees to dismiss the present lawsuit without prejudice to allow the proper heir, LJW, to file a Complaint.
7. No prejudice to the parties will occur if Petitioners’ Petition for Interlocutory Appeal is dismissed and the parties are directed to dismiss the current Complaint without prejudice so the proper heir and wrongful death beneficiary may file a new Complaint.
8. Any further briefing by the parties regarding the Petition for Interlocutory Appeal would be a waste of time and resources for both this Court and the parties. There is no need for this Court to consider if Vivian Myles lacked proper standing to bring suit because the parties-agree that Vivian Myles lacked proper standing and the correct person to bring the suit is the minor LJW. It would not promote judicial economy for the parties to fully brief this matter when the Respondent has now agreed with the Petitioners on the issue of who the correct heir is to bring the lawsuit. This issue is now moot.

¶8. The defendants responded and opposed the motion to dismiss. They argued this Court should address the legal question presented to it, and that the Court should tax Vivian and LJW with all costs and fees incurred during the litigation. Vivian and LJW then filed a rebuttal, explaining they were not abandoning their long-asserted view of the law, but rather had:

chosen to just agree with the Defendants’ request to refile the complaint. Why? Because it is the more practical, judicially economic response instead of quibbling over an outcome that does not matter since the outcome reaches the same end result. It is easier to just agree with the request of the Defendant to move the case forward and save the Court and parties the wasted time.

¶9. A panel of this Court denied the motion to dismiss.

¶ 10. The defendants then filed a motion to hold LJW and Vivian in contempt and impose sanctions, claiming that LJW had filed a new wrongful-death action in the Hinds County Circuit Court. According to the defendants, filing the new complaint violated this Court’s stay of proceedings in the trial court. The defendants asked this Court to order-LJW to dismiss the new complaint and to award the defendants all costs associated with defending the new complaint.

¶ 11. Vivian and LJW each responded. LJW argued that she had filed her new complaint because she feared the statute of limitations would soon run and she had to protect herself in the event this Court concluded the first complaint should have been dismissed. She also argued this Court’s stay, by its specific terms, applied only to the cause number on appeal, not other proceedings in the circuit court. Finally, she pointed out that the defendants’ motion for contempt attacked her for doing exactly what they had demanded all along: that she -file her own wrongful-death action. Vivian responded that she was not a party to the new suit/

¶ 12. The parties then filed their briefs. The defendants argued the circuit judge had erred by granting the motion to substitute and denying the motion for summary judgment because Vivian lacked standing to file this complaint, and the filing plaintiffs lack of standing cannot be corrected by substituting a different party. They also argue LJW is judicially or equitably estopped from arguing that Vivian had standing because she took a contrary position in the motion to dismiss this appeal. LJW—whose counsel filed the appel-lee’s brief—argues that this appeal is moot because she has filed a new complaint.

ANALYSIS

I. Whether the Court should reconsider the motion to dismiss this appeal.

¶ IB. In her brief, LJW effectively reasserts the motion 'to dismiss this appeal, which a motions panel of this Court already has denied. She argues the Court’s decision should now be different because she has filed a new wrongful-death complaint. The defendants dp not agree the appeal should be dismissed, arguing this Court must at least determine whether LJW should be held in contempt for filing the second complaint, and whether LJW and Vivian should be taxed with the costs of this appeal. The defendants also contend that the :second-filed complaint is invalid because the first complaint has not been dismissed and Mississippi’s wrongful-death statute allows only one suit. Because the motions panel already denied the motion to dismiss, and LJW offered to dismiss this litigation and file a new complaint in that motion, we find that this issue already has been conclusively decided.

II. Whether LJW is judicially or equitably estopped from arguing Vivian had standing to file this wrongful-death action.

If 14. As discussed above, when Vivian and LJW filed the motion to dismiss this appeal, the motion stated “Plaintiff Vivian Myles, AGREES with the Petitioners that she did not have standing to sue as the wrongful death beneficiary” and “[tjhere is no need for this Court to consider if Vivian Myles lacked proper standing to. bring suit because the parties agree that Vivian Myles lacked proper standing,” But, after the defendants opposed that motion, Vivian and LJW responded, stating they did not actually agree with that point of law, but had simply decided that “[i]t is easier to just agree with the request of the Defendant to move the case forward and save the Court and parties the wasted time.” Now, in her brief, LJW argues Vivian had standing.

¶ 15. The defendants argue LJW is judicially or equitably estopped from arguing Vivian had standing because she has taken inconsistent positions while this case has been on appeal. Practically speaking, by invoking these doctrines to estop LJW’s argument on appeal, the defendants effectively ask this Court to reverse the trial judge’s ruling—whether he erred or not— because LJW cannot defend his ruling. We have found no authority—and the defendants cite none—to suggest this Court may reverse a trial judge’s correct ruling because the appellee takes inconsistent positions on appeal.

¶ 16. But, even accepting that these doctrines could function in this way, they do not apply here. “The doctrine of ‘[¡judicial estoppel is designed to protect the judicial system and applies where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.”’” “A party will be judicially es-topped from taking a subsequent position if (1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently take the inconsistent positions.” “‘Judicial estop-pel precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation.’”

¶ 17. Here, LJW arguably has taken inconsistent positions on appeal. She joined a motion saying Vivian lacked standing to file this complaint but has now filed a brief arguing Vivian had standing. Giving effect to the plain language of the motion, it unequivocally agreed Vivian lacked standing. But this Court has not “accepted the previous position,” particularly because the acceptance prong looks to whether the party “benefitt[ed] from that position.” LJW’s prior position in the motion to dismiss was designed to bring this litigation to an end. This Court denied that motion.

¶ 18. The defendants also argue LJW should be equitably estopped from changing her position. “Equitable estoppel ‘precludes a party from denying, a material fact which he has previously induced another to rely upon, whereby the second party changed his position in such a way that he would suffer injury if denial was allowed.’. ” But here, no one relied upon LJW’s prior position. As stated above, LJW made that statement to support a motion to dismiss which the défendants opposed and this Court denied.

III. Whether Vivian had standing to file this wrongful-death action.

¶ 19. In Burley v. Douglas, this Court explained who has standing to file suit under Mississippi’s wrongful-death statute. There, James Burley filed a wrongful-death action relating to the deaths of his daughter and grandsons. The defendants claimed Burley lacked standing to file suit. The circuit judge dismissed Burley’s suit, insofar as it related to the deaths of his grandsons, for lack of standing. This Court reversed, explaining:

The Statute provides three categories of potential wrongful-death claimants who may commence a wrongful-death action. The action may be brought “(1) by the personal representative on behalf of the estate and all other persons entitled to recover; (2) by one of the wrongful death beneficiaries on behalf of all persons entitled to recover; or (3) by ‘all interested parties.... Each category of potential wrongful-death claimants has an equal right to initiate the suit.

On appeal, LJW contends Vivian had standing to file this wrongful-death action under each of the three grounds. We conclude Vivian had standing as a member of the second category.

Standing As Wrongful-Death Beneficiary

¶ 20. LJW argues Vivian had standing to file suit as one of the statutorily identified family members who may be a wrongful-death beneficiary. “The Statute provides a list of certain identified family members of the decedent, whom we shall call ‘listed relatives,’ who may bring a wrongful-death action. The Statute enumerates only the decedent’s ‘widow or children ... or husband or father or mother, or sister, or brother. ...’ ”

¶ 21. Importantly,

[t]he wrongful-death statute differentiates between who has the authority, or standing, to bring the suit and which wrongful-death claimants may recover what damages, and when they may do so. The Statute confers priority as to which listed relatives may recover damages, but it does not play favorites regarding which potential wrongful-death claimant may bring the suit. The paragraph concerning who may bring the action simply lists the prospective plaintiffs (the personal representative, listed relatives, and interested parties) in a series, separated by “or.” No potential wrongful-death claimant has priority over another.

¶ 22. The defendants argue Vivian lacked standing because, as second-tier, wrongful-death beneficiary, she cannot recover damages. But, this argument fails because the Court’s holding in Burley “recognize[d] the statutory distinction between a party’s authority to bring the wrongful-death action and the party’s ability to recovery [sic] damages from it.” Under Mississippi’s wrongful-death statute, a mother may not recover damages as a second-tier beneficiary where, as here, the decedent has a surviving child. But, under the statute, any of the enumerated family members, including a parent, has standing to file a "wrong-death action, whether they will be entitled to the damages or not.

¶ 23. The defendants argue that Burley does not hold that any listed relative has standing to sue. Rather, the defendants argue Burley merely holds that no priority exists between the three wrongful-death beneficiary categories: the personal representative, the listed relatives, and an interested party. As quoted above, Burley states “[t]he paragraph concerning who may bring the action simply lists the prospective plaintiffs (the personal representative, listed relatives, and interested parties) in a series, separated by ‘or.’ ” This provision of the wrongful-death statute provides:

The action for such damages may be brought in the name of the personal representative of the deceased person or unborn quick child for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child or unborn quick child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned ....

This provision describes who may file, and provides no hierarchy between different familial relations. Later, the statute provides:

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death.

As the Court recognized in Burley, this portion of the statute does create tiered categories of wrongful-death beneficiaries, but only as to the right to recover damages, not the right to file the wrongful-death action.

¶ 24. The defendants also argue that, even if Burley recognizes this distinction in the statute, a long line of eases predating Burley holds that only those entitled to recover damages may file the wrongful-death action. Most of these cases, however, did not address this question.

¶ 25. The defendants first cite this Court’s 1957 decision in Logan v. Durham. There, a decedent was survived by her husband and one minor child. But the surviving husband had been the tortfeasor in the automobile accident that caused her death, and this Court had held that the minor child could not maintain a tort action against his father.

¶ 26. So the administrator of the decedent’s estate brought a wrongful-death action against the surviving husband on behalf of the decedent’s father, mother, and siblings. This Court considered “whether the remoter class of beneficiaries under the wrongful death statute may recover because the preferred beneficiary, the un-emancipated minor child of the deceased and the tort-feasor, is disqualified to maintain the action.”

¶27. The Court found that they could not, reasoning that

The statute provides that if the deceased had no husband or child, the damages shall be distributed equally to the father, mother, brothers and sisters. In this case, the deceased was survived by her husband, the tort-feasor, and an un-emancipated minor child. The husband, being the tort-feasor, cannot recover and this Court has held that the unemanci-pated minor child may not maintain the action against her father. No one is left in the preferred class of beneficiaries qualified to maintain the action. Under the express terms of the statute, the remoter class of beneficiaries is entitled to the damages only if the deceased was not survived by a member of the preferred class. The legislature did not provide for the distribution of the avails of the suit to the remoter class of beneficiaries when those in the preferred class are disqualified to maintain the action. Since the state created an action unknown to the common law, we are not justified in extending its application beyond its terms.

In other words, this Court neither considered nor decided who has standing to file suit under the wrongful-death statute. Rather, the Court concluded that second-tier beneficiaries do not obtain the right to recover damages when first-tier beneficiaries exist, but are precluded from recovery by some other principle of law.

¶ 28. Next, the defendants cite Partyka v. Yazoo Development Corporation. In that case, the decedent was survived for approximately thirty minutes by his wife, who had suffered fatal injuries in the same accident that killed the decedent. The decedent’s mother filed a wrongful-death action, and the defendants moved to dismiss for lack of standing, The trial court granted the motion, and this Court affirmed.

¶ 29. But, while this Court affirmed the dismissal for lack of standing, this Court’s analysis considered whether “the second group of beneficiaries named in the statute became, on her death, the parties entitled to maintain a suit and recover the damages for Mr. Hall’s wrongful death.” The Court then proceeded to quote the hierarchy of rights to damages under the statute, and concluded that

[i]t seems to be undoubted that, if Mr. Hall left a wife and/or children, then such relative or relatives would be entitled to the damages to the exclusion of the deferred relatives parents, brothers and sisters. Of these preferred relatives, relatives of the first echelon, only his wife survived him; he left only her. Therefore, she, and she alone, was entitled to any recovery for Mr. Hall’s death.

So, while the Court did affirm the trial court’s dismissal for lack of standing, its analysis and conclusion spoke only to who had a right to recover damages.

¶ 30. The final opinion from this Court relied upon by the defendants is Estate of Moreland. But that case was not even an appeal in a wrongful-death action. Rather, it concerned who should be appointed by the chancery court as the administrator of the decedent’s estate. And, to the extent that it discussed wrongful death, it discussed Alabama, not Mississippi, wrongful-death law, and even then concerned only the effect of replacing one’s personal representative while a wrongful-death suit was ongoing.

¶ 31. That all said, both the Mississippi Court of Appeals and the United States District Court for the Southern District of Mississippi have reached the conclusion the defendants now advance, both relying on the above-distinguished cases.

¶ 32. In Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, the decedent was survived by her husband, children, and brother. Her brother filed a wrongful-death suit, and the defendants moved to dismiss for lack of standing. As in this case, the trial judge denied the motion to dismiss and instead granted a motion to substitute the decedent’s child as plaintiff.

¶ 33. On appeal, the Court of Appeals considered whether the brother had standing to file. After quoting the wrongful-death statute, the Court of Appeals stated,

We note at the outset of our discussion that the originally named plaintiff, Malone, was among the class of individuals permitted to bring a wrongful death suit by virtue of his sibling relationship to the decedent. However, Malone’s standing to bring the wrongful death suit was conditional upon the event that the decedent did not have a surviving spouse or children, who would have the exclusive right to bring the wrongful death action. While our wrongful death statute does not readily appear to assign a hierarchy classification to certain groups of listed beneficiaries that would create a first right to bring a wrongful death suit, Mississippi case law construed the statute to create such a system entitling certain groups priority in bringing such a cause of action.

Interestingly, the Court of Appeals seemed to recognize what this Court would hold in Burley two years later: that the statute creates an order of priority for recovering damages, but not as to who may file suit. But the Court of Appeals nevertheless found that, in Logan, Party- ka, and Estate of Moreland, this Court had held that standing to file suit under the statute is coextensive with the right to recover damages.

¶ 34. Likewise, in Johnson ex rel. Johnson v. Med Express Ambulance Service, Inc., the decedent was survived by two minor children and a brother. Acting through their uncle as next friend, the minor children filed a wrongful-death action more than six years after their mother’s death. The defendant then moved for summary judgment, claiming that the suit was time-barred. The United States District Court judge first found that the complaint had been filed outside the applicable statute of limitations. But he considered whether Mississippi’s savings statute for minors tolled the applicable statute. To answer that question, the judge considered whether the decedent’s brother, the only other potential wrongful-death beneficiary, could file suit. And the district judge found that the statute appeared to permit him to do so, but that this Court had held that if any first-tier beneficiary existed, no second-tier beneficiary could file suit.

¶ 35. In sum, Burley held, consistent with the statutory language, that an order of priority exists as to who may recover damages, but not as to standing to file suit. This Court’s opinions before Burley can be distinguished, in that none specifically addressed this question, focusing instead only on who may recover damages. So we find that the circuit judge did not err by granting the motion to substitute and denying the defendants’ motion to dismiss for lack of standing. Vivian did not lack standing when she filed suit.

IV. Whether LJW and/or Vivian should be held in contempt for LJW filing a new wrongful-death complaint after this Court stayed proceedings in the trial court.

¶36. The defendants argue “the appellees” should be held in contempt for filing a new complaint while this appeal has been pending. According to the defendants, LJW’s actions violated this Court’s order staying proceedings in the trial court. LJW responds that she simply filed the new complaint to protect against the running of the statute of limitations in the event that this Court ruled that the first complaint must be dismissed. We find that LJW’s action did not violate this Court’s order because that order specifically stated that “[a]ll proceedings in cause no. 251-13-442CIV, Hinds County Circuit Court, First Judicial District, are stayed pending this Court’s decision in this appeal.” The stay does not exceed the scope of this particular cause number. The record does not reflect that Vivian is involved in the new complaint in any way. So we will not hold Vivian in contempt for LJW’s actions.

V. Whether this Court should tax Vivian and LJW with the costs of this proceeding for not agreeing with the defendants’ position sooner.

¶ 37. The defendants argue this Court should tax Vivian and LJW with all costs of this appeal because they have unnecessarily delayed the dismissal of Vivian’s wrongful-death complaint. But, because the circuit court did not err by refusing to dismiss this complaint, any unnecessary delay rests on the shoulders of the defendants.

CONCLUSION

¶ 38. Because we find that Vivian had standing to file this wrongful-death action, we affirm the circuit judge’s decision to grant the motion to substitute LJW as plaintiff, and we remand this case to the circuit court for further proceedings consistent with this opinion.

¶ 39. AFFIRMED AND REMANDED.

RANDOLPH, P.J., KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

WALLER, C.J., NOT PARTICIPATING.

      . The complaint alleged Enrique had been killed during a robbery at the Timber Ridge Townhouse Apartments' and that TRK, LLC d/b/a Timber Ridge Townhouse Apartments, B & B Management Group, and Tyra Burnside had failed to provide adequate security in response to similar incidents.

      . Miss. Code. Ann. § 11-7-13 (Supp. 2016).

      . See Crawford v. State, 218 So.3d 1142, -, 2016 WL 4141748, *7 (Miss. Aug. 4, 2016) (recognizing preclusive effect of ruling by a motions panel).

      . Clark v. Neese, 131 So.3d 556, 560 (Miss. 2013) (quoting Kirk v. Pope, 973 So.2d 981, 991 (Miss. 2007)).

      . Clark, 131 So.3d at 560 (citing Kirk, 973 So.2d at 991).

      . Clark, 131 So.3d at 560 (quoting In re Estate of Richardson, 903 So.2d 51, 56 (Miss. 2005)).

      . Gulf Guar. Life Ins. v. Duett, 671 So.2d 1305, 1309 (Miss. 1996) (quoting Christian Methodist Episcopal Church v. S & S Constr. Co., Inc., 615 So.2d 568, 571-72 (Miss. 1993)).

      . Burley v. Douglas, 26 So.3d 1013, 1017-23 (Miss. 2009).

      . Id. at 1015.

      . Id.

      . Id. at 1016.

      . Id. at 1025.

      . Id. at 1017-18 (quoting Long v. McKinney, 897 So.2d 160, 168 (Miss. 2004) (emphasis added); citing J.J. Newman Lumber Co. v. Scipp, 128 Miss. 322, 91 So. 11 (1922)).

      . Burley, 26 So.3d at 1020 (quoting Miss. Code. Ann. § 11-7-13 (Rev, 2004)).

      . Burley, 26 So.3d at 1022 (quoting Miss. Code. Ann. § 11-7-13 (Rev. 2004); J.J. Newman Lumber Co., 91 So. at 11).

      . Burley, 26 So.3d at 1023.

      . Id. 1022-23 (citing Miss. Code. Ann. § 11— 7-13 (Rev. 2004)).

      . Burley, 26 So.3d at 1022.

      . Miss. Code. Ann. § 11-7-13 (Supp. 2016).

      . Id.

      . Logan v. Durham, 231 Miss. 232, 95 So.2d 227 (1957).

      . Id. at 237-38, 95 So.2d 227.

      . Id. at 238, 95 So.2d 227.

      . Id.

      . Id. (emphasis added).

      . Id. at 239, 95 So.2d 227 (emphasis added),

      . Partyka v. Yazoo Dev. Corp., 376 So.2d 646 (Miss. 1979).

      . Id. at 647.

      . Id. at 646-47.

      . Id.

        . Id. at 647 (emphasis added).

      . Id. at 648 (emphasis added).

      . Estate of Moreland, 537 So.2d 1337 (Miss. 1989).

      . Id. at 1340-41.

      . Id. at 1343-44.

      . Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So.2d 989 (Miss. Ct. App. 2007).

        . Johnson ex rel. Johnson v. Med Express Ambulance Serv., Inc., 565 F.Supp.2d 699 (S. D. Miss. 2008).

      . Tolliver, 987 So.2d at 992.

      . Id.

      . Id.

      . Id. at 993.

      . Id. at 994.

      . Id. at 994-95 (citing Logan, 95 So.2d at 229; Partyka, 376 So.2d at 648; Estate of Moreland, 537 So.2d at 1344).

      . Johnson ex rel. Johnson, 565 F.Supp.2d at 701.

      . Id.

      . Id. at 702.

      . Id.

      . Id.

      . Id. at 706.

      . Id. (citing Partyka, 376 So.2d at 648, 650; Logan, 95 So.2d at 228-29).

      . (Emphasis added.)


author: CHAMBERLIN, JUSTICE,

text:
    ROBERTS COMPANY, INC. f/k/a R & M Foods, Inc. v. Marcus MOORE
    NO. 2015-IA-00999-SCT
    Supreme Court of Mississippi.
    03/02/2017

      ATTORNEYS FOR APPELLANT: A. LA’VERNE EDNEY, FREDERICK N. SALVO, III, ADAM H. GATES, JESSICA Z. BARGER, SHELLEY J. WHITE
    ATTORNEYS FOR APPELLEE: CRYSTAL WISE MARTIN, JAMES W. NOBLES, JR.
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶ 1. In this slip-and-fall case, the jury returned a verdict in the defendant’s favor, and the trial court entered judgment in accordance with that verdict. Plaintiff Marcus Moore filed a post-trial motion arguing, among other things, that one of the jurors was a convicted felon and therefore, statutorily disqualified. The trial judge agreed and granted Moore a new trial. This Court granted the defendant’s petition for an interlocutory appeal, and we reverse the trial court’s order granting a new trial, we render judgment here reinstating the trial court’s judgment entered in accordance with the jury verdict.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1989, Marcus Moore slipped and fell in a grocery store owned by the defendant, Roberts Company, Inc. (“RCI”). Moore was three years old at the time, and he allegedly struck his head when he fell. After he reached the age of majority, Moore filed suit against RCI, claiming that RCI was negligent in allowing the floor to be slick. Moore also alleged that the fall had caused “marked and significant traumatic and permanent injuries to his brain,” leaving him with “permanent and profound deficits” in several areas.

¶ 3.- Following a ten-day trial, the jury found in RCI’s favor. Although all twelve jurors found that RCI had been negligent, nine jurors found that RCI’s -negligence was not a proximate cause of Moore’s injuries. The trial judge entered a final judgment on the jury’s verdict, rendering judgment in favor of RCI and dismissing all of Moore’s claims with prejudice.

¶ 4. Following the jury’s verdict but before entry of final judgment, Moore’s mother (Mary) sent a letter to Moore’s attorneys purportedly firing them. She then filed a pro .se notice of appeal. A few days later, Moore’s attorneys filed the post-trial .motion at issue in this appeal, asking for judgment notwithstanding the verdict or in the alternative, a new trial. Then, a month after the post-trial motion was filed, a Hinds County chancellor entered an order removing Mary as conservator “for failure to uphold the duties set forth in [the order appointing her].” The chancellor also prohibited Mary from filing anything on Moore’s behalf, found that she was “not authorized” to file the notice of appeal nor to fire Moore’s attorneys, and that Moore’s attorneys were authorized to “fully prosecute” his interests in the case. The chancellor appointed chancery clerk Eddie Jean Carr as Moore’s conservator going forward.

¶ 5. In Moore’s post-trial motion, he argued that “Juror Foreperson John L. Turner [was] a convicted felon.” Citing Mississippi Code Section 13-5-1 and Fleming v. State, 687 So.2d 146 (Miss. 1997), Moore argued that Turner “clearly was not a qualified juror and as a result the verdict of the jury must be reversed.” RCI countered that the trial court had lost jurisdiction to decide the post-trial motion once Mary filed her notice of appeal. RCI also argued that Section 13-5-1 says specifically that a juror’s lack of qualification “shall not ... vitiate an indictment or verdict.”

¶ 6. After a hearing, the trial judge found that

The plaintiff filed the herein motion for Judgment Notwithstanding the Verdict setting forth a number of grounds supporting his motion. The Court, after reviewing this matter, finds that the issue with respect to Juror Foreperson John L. Turner has merit. The issue before the court is whether Juror Turner’s failure to reveal he was a convicted felon disqualified him as a juror.
The Mississippi Supreme Court reversed and remanded a criminal conviction in Fleming v. State, 687 So.2d 146 (Miss. 1997) [,] on the grounds that one of the jurors failed to reveal that he was a convicted felon. Moreover, Mississippi Code Annotated Section 13-5-1, in relevant part, states in order to be a competent juror, the person must not have been convicted of an infamous crime.
John Turner was not merely a juror in this matter. He was the Jury Foreperson. Obviously, the jury foreperson has a great responsibility in presiding over deliberations and making sure the verdict tendered to the court is in the proper form. No one knows what took place in the jury room other than the jurors. As noted in Fleming, prejudice is presumed. The plaintiff had no opportunity to challenge Juror Turner’s convicted felon status. Therefore, the court finds there is indeed prejudice to the plaintiff. Accordingly, the parties shall be given another opportunity to reliti-gate the herein controversy.

The trial judge noted that RCI had “no role” in the prejudice and that it was a “mere bystander.” And the judge also noted that if the verdict had been for Moore, he also would have ordered a new trial. Finding no merit to Moore’s other arguments, the trial judge denied his motion for judgment notwithstanding the verdict but granted his motion for new trial.

¶ 7. Roberts filed a petition for interlocutory appeal, which this Court granted. Roberts now presents three issues, which we restate for clarity:

1. Is the trial judge’s order granting a new trial void for lack of jurisdiction because an appeal from the final judgment was pending in this Court when it was entered?
2. Did the trial court effectively read the mandatory language out of Section 13-5-1 and ignore the Legislature’s intent to preserve jury verdicts by presuming prejudice in this case, without any evidence that a juror’s felony conviction actually affected the fairness of the trial?
3. Is the application of such a presumption of prejudice fair in civil cases that, unlike criminal cases, do not require unanimous juries?

ANALYSIS

¶ 8. This Court applies an abuse-of-discretion standard when reviewing a trial judge’s grant of a motion for new trial. Ballard Realty Co., Inc. v. Ohazurike, 97 So.3d 52, 58 (Miss. 2012). But questions of statutory interpretation are questions of law which this Court reviews de novo. Page v. Univ. of S. Miss., 878 So.2d 1003, 1004-05 (Miss. 2004).

1. The trial court had jurisdiction to rule on Moore’s post-trial motion.

¶ 9. RCI argues first that “[a]t the time it granted [Moore’s] new trial motion, the trial court no longer had jurisdiction over the case because an appeal already was pending.” We disagree.

¶ 10. Mississippi Rule of Appellate Procedure 4(d) states, in pertinent part:

A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions [including a Rule 59 motion for new trial] is inejfective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding.

Miss. R. App. P. 4(d) (emphasis added). RCI acknowledges Rule 4(d), stating that “[o]f course, if [Moore’s] notice of appeal had been filed before the trial court disposed of pending post-trial motions, the notice of appeal would not have ripened into an effective appeal until the post-trial motions were decided.”

¶ 11. But RCI does not acknowledge the comments to Rule 4(d), which extend the rule to the situation presented in Moore’s case:

Rules 4(d) and 4(e) now provide that a notice of appeal filed before the disposition of a specified post trial motion will become effective upon disposition of the motion. A notice filed before the filing of one of the specified motions or after the filing of a motion but before its disposition is, in effect, suspended until the motion’s disposition, whereupon the previously filed notice effectively places jurisdiction in the Supreme Court.

Miss. R. App. P. 4(d) cmt. (emphasis added). The advisory committee notes explain that Rules 4(d) and 4(e) and the related comments were amended in 1998 to “provide that a notice of appeal filed before disposition of specified post trial motions becomes effective on disposition thereof .... ” The plain language of Rule 4(d) and the comments establish that Mary’s notice of appeal was “suspended” until the trial judge ruled on Moore’s post-trial motion, regardless of whether the motion actually was pending at the time she filed. As such, the trial judge did not lose jurisdiction to rule on it.

¶ 12. Tellingly, all of the cases cited by RCI to support its assertion that the trial court lost jurisdiction were decided before 1998. And the one post-1998 case RCI cites is easily distinguishable. In McNeil v. Hester, 753 So.2d 1057 (Miss. 2000), this Court held only that the chancery court was without jurisdiction to close an estate and discharge the executors once a notice of appeal had been filed. Id. at 1075-76. There was no discussion of Rule 59 motions whatsoever, and McNeil simply cannot be read to support RCI’s position that the trial eourt here was without jurisdiction to rule on Moore’s Rule 59 motion, especially in light of Rule 4’s clear language. We find this issue to be without merit.

2. The trial judge erred in his interpretation of Section 13-5-1 and caselaw.

¶ 13. RCI argues next that “the new trial order is inconsistent with legislative intent to preserve jury verdicts.” Specifically, RCI argues that

the order requiring a second trial in this case achieves the result expressly instructed against in Mississippi Code Annotated Section 13-5-1, the statute setting forth the criteria to serve as a juror. That statute states plainly and unambiguously that the lack of qualification “on the part of one or more jurors shall not ... vitiate an indictment or verdict.” The trial court improperly ignored this language and rendered an entire sentence in the statute a nullity when it concluded ... that the jury’s verdict must be set aside[.]

(Emphasis in original.) We agree.

¶ 14. Mississippi Code Section 13-5-1 establishes the qualifications for jurors and states, in pertinent part:

Every citizen not under the age of twenty-one years, who is either a qualified elector, or a resident freeholder of the county for more than one year, is able to read and write, and has not been convicted of an infamous crime,[] or the unlawful sale of intoxicating liquors within a period of five years and who is not a common gambler or habitual drunkard, is a competent juror. No person who is or has been within twelve months the overseer of a public road or road contractor shall, however, be competent to serve as a grand juror. The lack of any such qualifications on the part of one or more jurors shall not, however, vitiate an indictment or verdict. Moreover, no talesman or tales juror shall be qualified who has served as such talesman or tales juror in the last preceding two years, and no juror shall serve on any jury who has served as such for the last preceding two years. No juror shall serve who has a case of his own pending in that court, provided there are sufficient qualified jurors in the district, and for trial at that term.

Miss. Code Ann. § 13-5-1 (Rev. 2012) (emphasis added). Although the trial judge referenced Section 13-5-1 in his order granting a new trial, he did not discuss the “vitiate” language at all. Rather, he relied on this Court’s opinion in Fleming v. State, 687 So.2d 146 (Miss. 1997), where this Court reversed and remanded a criminal conviction after the parties discovered that one of the jurors was a convicted felon, presuming prejudice. Id. at 147. While Fleming, at first blush, might appear to be inconsistent with our holding today, it is not.

¶ 15. In Fleming, a juror failed to disclose his felony conviction when asked in voir dire. Id. at 147-48. This Court reversed, not because the juror was not qualified under Section 13-5-1, but rather because the Court found the defendant had been denied a constitutional right to a fair and impartial jury. Nothing in Fleming suggests that every violation of Section 13-5-1 will rise to the level of a constitutional violation.

¶ 16. Here, Moore persuaded the trial judge he was entitled to a new trial because a juror was not qualified to serve under Section 13-5-1. Because he made no claim and presented no proof of a constitutional violation, the circuit judge’s reliance on Fleming was error.

¶ 17. As for cases that discuss statutorily disqualified jurors along with Section 13-5-1, we note two. First, in Brown v. State, 529 So.2d 537 (Miss. 1988), this Court addressed a situation in which a juror had a case pending in the same court in which she was serving (which Section 13-5-1 prohibits). Id. at 538-39. This Court briefly noted Section 13-5-1’s “vitiate” language in its discussion, with the entirety of that analysis as follows:

We note that after the initial definition of who is competent to serve the statute provides that the lack of such qualifications will not vitiate a verdict. The statute then goes on to unequivocally prohibit service of any juror who has a case pending in that court.

Id. at 540. So, while the Broim Court did hold that the motion for a new trial should have been granted, we find that Brown’s holding is not applicable here, because the facts are distinguishable. InBroim, the disqualification at issue was that the juror had a case pending in the same court. As a matter of fact, the juror’s case was scheduled for the following Monday following Brown’s trial. Id. at 538. That disqualification comes after the “vitiate” language in the statute. But here, the “crime” disqualification language comes before the “vitiate” language in the statute. Thus, Brown does not mandate, or even support, the trial judge’s ruling here.

¶ 18. Second, in Wright v. State, 805 So.2d 577 (Miss. Ct. App. 2001), the Court of Appeals addressed “[wjhether the trial court erred in failing to grant a new trial when it was discovered by the judge, post-trial, that a juror was living in Memphis, Tennessee at the time he was selected to serve on the jury[.]” Id. at 579. After noting this Court’s decision in Brown, the Court of Appeals reasoned that

On the other hand, in cases such as Wright’s, where some other qualification [besides having a case pending in the same court] is in question, the statute itself- provides that “[t]he lack of any such qualifications on the part of one or more jurors shall not, however, vitiate an indictment or verdict.”

Id. at 580. Thus, the Court of Appeals concluded that a new trial was not warranted. Id.

¶ 19. In sum, the statute that establishes jury qualifications says unequivocally that the “lack of any such qualifications on the part of one or more jurors shall not, however, vitiate an indictment or verdict.” Miss. Code Ann. § 13-5-1 (Rev. 2012). The statute controls the outcome here. While the Fleming Court did mandate a new trial where a juror was a convicted felon, it addressed the defendant’s constitutional right to a fair and impartial jury under the facts of that case. It did not analyze section 13-5-1’s “vitiate” language and relied on precedent that was irrelevant to the issue at hand, To the extent that Fleming stands for the proposition that a violation of the first section of Section 13-5-1 requires an automatic reversal or invokes a presumption of prejudice, it is hereby overruled. Further, the Brown Court reached its result after engaging in statutory analysis that is inapplicable here. As such, this Court reverses the trial judge and reinstates the jury verdict.

3. RCI’s “Prejudice” Arguments

¶ 20. Because we find the second issue dispositive, we do not discuss the remainder of RCI’s arguments.

CONCLUSION

¶ 21. While Juror Turner was statutorily disqualified to serve as a juror under Section 13-5-1, his lack of qualification “shall not” vitiate the verdict rendered here. We therefore reverse the trial court’s order granting a new trial, and we render judgment here reinstating the trial court’s judgment entered in accordance with the jury verdict.

¶ 22. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAXWELL AND BEAM, JJ„ CONCUR.

      . Between the time that Moore filed his complaint and trial began, his mother had been appointed conservator "of the Estate and of the person of Marcus Moore,” after the chancellor found that "because of his [drug] addiction, Marcus Moore is unable to manage his own estate and take care of himself and it is necessary and in the best interest of Marcus Moore that a Conservator be appointed .... ”

      . RCI presents an argument on appeal about the timing of the notice of appeal and the post-trial motion. But, although it argued various issues in the trial court regarding the validity of Mary’s removal as conservator and her purported firing of Moore's counsel, it does not appear to raise any further argument about those specific issues on appeal. Also, the appeal filed by Mary since has been dismissed voluntarily.

      . The parties argued extensively below about the nature of Turner’s actual crime and his conviction, For purposes of this appeal, though, RCI conceded that Turner was not a qualified juror.