author: RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

text:
    Richard Lamar GREEN a/k/a Richard Green v. STATE of Mississippi
    NO. 2017-KA-00770-SCT
    Supreme Court of Mississippi.
    October 18, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK, GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, JACKSON
    EN BANC.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Richard Lamar Green ("Green") was convicted in the Circuit Court of Rankin County for the attempted murder and kidnapping of his wife, Cathleen Green ("Cathy"). Green appeals his convictions, arguing that the State presented insufficient evidence to convict him of both counts. The Court finds that a reasonable juror could have found that the State had proved, beyond a reasonable doubt, each element of both convictions based on the testimony, evidence, and applicable law. We affirm Green's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. Green and Cathy had been arguing for a few days. Cathy wanted a divorce because she was ready to be with someone else. Green found Cathy's phone and demanded that she unlock it, but she refused. Green became so agitated by Cathy's refusal that he walked outside and retrieved a machete from the toolbox of his vehicle. He then walked back inside and into the bedroom where Cathy and their four-year-old son were watching cartoons. Green removed Cathy from her bed, separating her from their child. Cathy threw her phone to the child and told him to call 911. Green dragged Cathy out of the bedroom and away from her son. He then forcibly dragged her down the hall, leaving bruises up and down her arms. Cathy was kicking and flailing as she tried to free herself from Green's grip, but he would not release her.

¶ 3. Upon reaching the living room (and out of their child's sight), Green repeatedly struck Cathy in the head with the machete. She tried to defend herself and received defensive wounds in the process. Cathy was screaming, asking Green, "stop, stop, what are you doing?" Green told Cathy, "I'm going to kill you with this machete." She was rendered helpless on the living room floor. When Green came back past her, Green told their son, "don't look at mommy." Cathy began pleading for her life. She told Green, "I'm your wife. What have you done? I have kids. I only have so much time. I only have so much blood. You've got to do something now that you've done this." Green just looked at her, put his head in his hands and said, "I'm going to have to kill myself now." Cathy was left motionless, grew cold, and her bowels emptied. Green walked over her and out the front door, locking the door behind him. He also took all the cell phones from the house. Then, son in tow, he fled. Instead of killing himself, Green called 911 to report what he had done to Cathy.

¶ 4. The first officer to arrive was able to see Cathy lying on the floor behind the locked door. Other officers arrived to the scene and broke the window to enter. Cathy's face was covered in blood. Blood spatters covered the walls and a large amount of blood surrounded Cathy. Cathy's right pinky finger had been severed and was lying to the left side of her body. The officer testified that seeing all of her wounds was difficult because of the excessive blood, but that he could see that she had one laceration on her forehead and another behind her head. He also observed hair and brain matter on the floor around her.

¶ 5. Cathy was in and out of consciousness. She was able to tell the officers that "Richie" had caused the injuries with a machete, and that he had left with their son. The Pearl Police Department issued a county-wide be-on-the-lookout ("BOLO") notice for Green's vehicle, and a state-wide BOLO was dispatched. An investigator arrived, took photographs, and collected blood samples. He also observed pools of blood, hair, and brain matter on the carpet.

¶ 6. Green later was apprehended in Pike County and returned to the Pearl police station. Green was read his Miranda rights, which he, orally and in writing, agreed to waive. Green then confessed. The confession was recorded and played for the jury at trial. Cathy testified live. Her testimony corroborated Green's confession.

¶ 7. Cathy was hospitalized for one week and then was transferred to a rehabilitation center for four weeks. Cathy's skull was shattered, and part of it was missing. The cranium had been broken in a complex fashion and depressed against her brain. The inner lining of Cathy's skull was damaged, and her brain itself had been damaged. She also had brain matter in her wounds. Cathy received fifty staples on the crown of her head. Part of her head tissue died. Cathy also had sustained a cut that extended halfway down her face. Her eye socket was fractured, and a piece of her nose had been cut off. Cathy's pinky finger was amputated, and each of the tendons in one hand had been cut. Her ring finger also was broken. Cathy sustained cuts down her back and bruises down her neck and behind her ear.

¶ 8. Green was indicted for the attempted murder and kidnapping of Cathy. At trial, the law-enforcement officers, 911 operator, Cathy, and Cathy's treating physician testified. After the State rested, Green moved for a directed verdict. Green argued that the State had failed to prove all of the necessary elements for the charge of attempted murder. Specifically, Green argued that he had abandoned his attempt to murder Cathy because he called 911. Additionally, Green argued that no evidence was produced to support the charge of kidnapping. Instead, Green argued that what took place was merely a struggle that proceeded from one room to another. Despite evidence to the contrary, Green further claimed that he never restrained Cathy or kept her from leaving. The trial court denied Green's motion.

¶ 9. The jury found Green guilty, as charged in the indictment, of attempted murder in Count I and of kidnapping in Count II. The jury unanimously sentenced Green to life imprisonment on Count I. The jury was unable to agree on a penalty for Count II. The trial judge held a sentencing hearing on Count II and sentenced Green to a term of thirty years to be served consecutively with the sentence in Count I in the custody of the Mississippi Department of Corrections.

¶ 10. Green filed a motion for judgment notwithstanding the verdict ("JNOV"), or alternatively, a motion for a new trial. Green argued, inter alia , that the verdict was against the overwhelming weight of the evidence, reasserting his arguments that he had abandoned any attempt to murder Cathy and that he had not kidnapped Cathy. The trial judge denied Green's motion. Aggrieved, Green appeals.

ISSUES

¶ 11. Green does not challenge the weight of the evidence. Rather, Green challenges the sufficiency of the evidence, raising two issues on appeal:

I. Whether the State presented sufficient evidence to convict Green of kidnapping.
II. Whether the State presented sufficient evidence to convict Green of attempted murder.

STANDARD OF REVIEW

¶ 12. In considering whether the evidence is sufficient to sustain a conviction, this Court employs a de novo standard of review. Brooks v. State , 203 So.3d 1134, 1137 (Miss. 2016) (citing Kirk v. State , 160 So.3d 685, 695 (Miss. 2015) ). "The relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Hearn v. State , 3 So.3d 722, 740 (Miss. 2008) (quoting Bush v. State , 895 So.2d 836, 843 (Miss. 2005), abrogated on other grounds by Little v. State , 233 So.3d 288, 289 (Miss. 2017) ). "Under this inquiry, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be drawn from the evidence." Galloway v. State , 122 So.3d 614, 665 (Miss. 2013). Appellate courts "should reverse only where, with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Boyd v. State , 977 So.2d 329, 337 (Miss. 2008) (citation omitted) (internal quotations omitted).

DISCUSSION

I. Kidnapping

¶ 13. Green argues that the State failed to produce sufficient evidence to support his kidnapping conviction and asks this Court to reverse that conviction and to render a judgment of acquittal in his favor. Mississippi Code Section 97-3-53 defines kidnapping as follows:

Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will[.]

Miss. Code Ann. § 97-3-53 (Rev. 2014).

¶ 14. Green argues that any kidnapping was incidental to the "alleged assault" against Cathy, and that, if this Court affirms his conviction, "a kidnapping charge could be brought concurrently to every single assault." Curiously, Green cites Cuevas v. State , 338 So.2d 1236, 1238 (Miss. 1976), in support of his argument. In Cuevas , a Scott County prisoner confronted a jailer with a pistol and forced him to accompany him downstairs to the sheriff's office at gunpoint. Cuevas , 338 So.2d at 1237. Once downstairs, the prisoner forced a highway patrolman to accompany him to a vehicle in a nearby lot. Id. Then, the prisoner crossed the street to a building where he encountered two employees of an automobile agency. Id. The prisoner directed one employee to accompany him to the "parts department" of the building at gunpoint. Id. The prisoner then held two employees hostage in the parts department for nearly two hours. Id. The prisoner eventually surrendered and was charged with, and convicted of, kidnapping. Id. The prisoner challenged the sufficiency of the evidence to sustain the charge of kidnapping. Id. The Court found that the evidence was sufficient to support his conviction, holding that

If forcible detention or movement is merely incidental to a lesser crime than kidnapping, such confinement or movement is insufficient to be molded into the greater crime of kidnapping. An illustration might well be a strong-armed robbery where the victim is detained and perhaps moved a few feet while being relieved of his wallet. The detention and movement would not support kidnapping albeit with force and unlawful. On the other hand, if the confinement or asportation be not merely incidental to a lesser crime, but a constituent part of the greater crime, the fact of confinement or asportation is sufficient to support kidnapping without regard to distance moved or time of confinement.

Id. at 1238. The Cuevas Court concluded that the prisoner's purpose in "seizing and detaining [the hostage] was obviously to make good his escape." Id. "The confinement and movement of [the hostage] by force from the service entrance of the building to the parts department of the building was sufficiently proved to support Cuevas' conviction." Id. at 1238-39.

¶ 15. Green's argument that his kidnapping conviction should be reversed under Cuevas is without merit. As explained in Cuevas , "[i]f forcible detention or movement is merely incidental to a lesser crime than kidnapping, such confinement or movement is insufficient to be molded into the greater crime of kidnapping." Cuevas , 338 So.2d at 1238 (emphasis added). At the outset, there was no "lesser crime" than kidnapping in this case. Attempted murder is a "greater" crime than kidnapping under Mississippi's sentencing guidelines. Furthermore, the jury was not presented with evidence that would show the kidnapping was "merely incidental" to the attempted murder of Cathy. Rather, the jury was presented with testimony and evidence demonstrating that the kidnapping was a separate, independent crime. Green confessed that he did not use the machete to hack or slash Cathy until after he had removed her from the bed and dragged her, fighting and screaming, down the hall and into another room, outside the presence of the child. The forcible seizure, removal, and asportation of Cathy against her will was a separate, distinct, and independent crime that occurred prior to Green's attempt to murder Cathy. Following Cuevas , the distance of asportation or time of confinement is immaterial. Cuevas , 338 So.2d at 1238.

¶ 16. Green acknowledges that Cuevas is the majority rule. Notwithstanding, Green argues that we should apply law from other jurisdictions and adopt a Mississippi Court of Appeals dissent from Salter v. State , 876 So.2d 412, 417 (Miss. Ct. App. 2003), that questioned Cuevas . In Salter , the defendant was convicted both of armed robbery and of kidnapping. Id. at 414. The defendant had held bank employees at gun point and had forced three of them to lie on the floor of the bank vault. Id. The defendant argued that no factual basis supported the kidnapping charges against him, and that any kidnapping had been merely incidental to the commission of the armed robbery and therefore was not a distinct and separate crime. Id. at 415. The Court of Appeals majority, citing this Court's holding in Cuevas , held that, by ordering the employees into the bank vault against their will, the defendant fulfilled the statutory definition of kidnapping, and that the distance of asportation was not important. Id. The dissent opined that "the better view to me is that telling people to move around inside the bank, even into the bank vault, did not have significance independent of the bank robbery itself." Id. at 419 (Southwick, P.J., dissenting). Although the defendant's act of forcing the employees into a bank vault at gunpoint "did not have significance" to the dissenting author, we surmise that it was a significant, terrifying experience for the bank employees. Green's argument to adopt the Salter dissent is rejected.

¶ 17. This Court recently affirmed a kidnapping conviction in Graham v. State , 185 So.3d 992, 995 (Miss. 2016), in which the kidnapping was committed along with another crime. In Graham , the defendant was convicted of kidnapping, forcible rape, and sexual battery. Graham , 185 So.3d at 995. The defendant challenged his kidnapping conviction, arguing that the victim never fought back against him, and that she was never told she was not free to leave. Id. at 1003. This Court rejected that argument, noting that the kidnapping statute does not require the victim to attempt to flee, nor does it require the kidnapper to tell the victim that he or she cannot leave. Id. The defendant also argued that neither he nor his co-conspirator did anything that could be construed as kidnapping, and "that if the kidnapping statute were to be interpreted so broadly, every single rape or assault allegation could be accompanied by a kidnapping charge"-the same argument presented today. Id. This Court rejected the defendant's "parade-of-horribles" argument. Id. The Court observed, inter alia , that the victim had been punched by one of the defendants, that they had blocked her exit when she realized she was in danger, and that, as soon as the defendants had backed away to fix their clothes after the sexual assault, she fled. Id. at 1003-04. We held that a reasonable juror could have found that the evidence supported the victim's allegation of kidnapping based on the testimony and evidence presented. Id. at 1004.

¶ 18. Here, the jury heard testimony that Green entered the bedroom where Cathy was lying with their four-year-old child, that he snatched her from the bed against her will, and that he forcefully dragged her out of the bedroom, down a hall, and into the living room. See Williams v. State , 544 So.2d 782, 790 (Miss. 1987) (holding that reasonable juror could have found that murder victim was also kidnapped when "she was dragged or carried into the woods from the truck"). Furthermore, Cathy testified that she was kicking and flailing as Green dragged her down the hallway, and that Green would not let her go. Cathy tried to free herself, but could not. Only after the asportation was complete did Green begin to hack Cathy with a machete until her blood and brain matter covered the floor and walls and she could no longer move. Then, he stepped over her body, left the home with her cell phone, and locked the door behind him. Viewing the evidence and testimony in the light most favorable to the State, a reasonable juror could have found that the State had proved, beyond a reasonable doubt, each element of kidnapping. Graham , 185 So.3d at 1003.

II. Attempted Murder

¶ 19. Despite Cathy's testimony that Green had told her, "I'm going to kill you with this machete," Green argues that the State produced insufficient evidence to convict him of attempted murder, because he alleges he abandoned any attempt to kill Cathy by calling 911. Green requests that this Court reverse his conviction, render a verdict of not guilty, and remand for resentencing for aggravated assault. Mississippi Code Section 97-1-7(2) defines attempted murder as follows:

Every person who shall design and endeavor to commit an act which, if accomplished, would constitute an offense of murder under Section 97-3-19, but shall fail therein, or shall be prevented from committing the same, shall be guilty of attempted murder[.]

Miss. Code Ann. § 97-1-7(2) (Rev. 2014). "An attempt to commit a crime consists of three elements: (1) an intent to commit a particular crime; (2) a direct [overt] act done toward its commission; and (3) the failure to consummate its commission." Brooks v. State , 18 So.3d 833, 841 (Miss. 2009). "The mere intention to commit a crime is not punishable; 'the intention must therefore be coupled with an overt act.' " Croft v. State , 992 So.2d 1151, 1159-60 (Miss. 2008) (quoting Bucklew v. State , 206 So.2d 200, 202 (Miss. 1968) ).

¶ 20. Green argues that he abandoned any attempt to kill Cathy, and that, under Mississippi's attempt statute, prevention from or frustration of the crime's completion must result from extraneous causes. Green cites West v. State , 437 So.2d 1212, 1213 (Miss. 1983) (holding defendant did not commit the specific crime of attempted sexual battery because there was no sexual penetration), and Bucklew , 206 So.2d at 202 (holding that defendant did not attempt to embezzle city funds because he did not commit an overt act toward the commission of the crime). Green asserts that the State's indictment and its jury instruction allege that the prevention or frustration of Green's attempt to murder Cathy was Green's calling 911. Thus, Green argues that the completion of the crime was prevented or frustrated by the 911 call and not by extraneous causes.

¶ 21. The State argues that, while Green did not succeed in killing Cathy, Green completed the crime of attempted murder. The State cites Jackson v. State , in which this Court held,

It must be remembered that an attempt to commit the crime of burglary (or an attempt to commit any other crime, for that matter) is just as much a crime as the completed act is a crime. Where a person with the intent to commit a crime performs some overt act toward the commission of the intended crime, he is guilty of the crime of "attempt to commit the crime," provided the act is more than mere preparation. One may intend to commit the crime of murder and may procure [a] firearm for that purpose, but until his acts go beyond mere preparation to the extent of doing some overt act in the actual carrying into effect his intent, he is not guilty of an "attempted murder." If, on the other hand, one proceeds beyond mere preparation, his voluntary abandonment will not bar his conviction.

Jackson v. State , 254 So.2d 876, 878 (Miss. 1971) (emphasis added).

¶ 22. Based on this Court's holding in Jackson , the State asserts that, because Green's action of striking Cathy with the machete went beyond mere preparation, he cannot claim that he voluntarily abandoned his attempt by calling 911 afterward. We agree.

¶ 23. The jury heard testimony that Green intended to murder Cathy and that Green took action to carry out the crime, well beyond mere preparation, by repeatedly striking her with a machete. Even if Green prevented Cathy from succumbing to the wounds he inflicted by calling 911 after he left the home, he completed the crime of attempted murder when he proceeded beyond mere preparation in carrying out his intent to kill Cathy. Jackson , 254 So.2d at 878. Thus, any alleged "abandonment" by Green "will not bar his conviction." Id. See also Bucklew , 206 So.2d at 204 ("[A] voluntary abandonment of an attempt which has proceeded beyond mere preparation will not bar a conviction for the attempt."). The State presented sufficient evidence such that a reasonable juror could have found that the State had proved, beyond a reasonable doubt, each element of attempted murder.

¶ 24. Green alternatively argues in a footnote that the attempted-murder statute, Mississippi Code Section 97-1-7(2), is "probably" unconstitutionally vague and overbroad. Green states that the Court need not address this argument in order to reverse based on the State's alleged failure to produce sufficient evidence to convict Green of attempted murder. As discussed, a reasonable juror could have found that the State had proved, beyond a reasonable doubt, each element of attempted murder. Furthermore, Green cites no authority for his argument that the attempted-murder statute is "probably" unconstitutionally vague and overbroad. The Court declines to consider Green's alternative argument. See Byrom v. State , 863 So.2d 836, 853 (Miss. 2003) ("Failure to cite relevant authority obviates the appellate court's obligation to review such issues.").

CONCLUSION

¶ 25. The State produced sufficient evidence such that a rational juror could have found that the elements of kidnapping and attempted murder had been proved beyond a reasonable doubt. The Court affirms Green's convictions and sentences.

¶ 26. AFFIRMED.

COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND KITCHENS, P.J.

KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 27. Although I agree with the majority's conclusion that the State produced sufficient evidence to support Green's attempted murder conviction, I respectfully dissent from the majority's finding that the State produced sufficient evidence to support his kidnapping conviction. I would find that Green's act of moving Cathy from the bedroom of her house to the living room of her house merely was incidental to the attempted murder.

¶ 28. Green argues that, because his confinement of Cathy had no significance independent of his assault of Cathy, his kidnapping conviction should be reversed and rendered. "When assessing the legal sufficiency of a conviction, a reviewing court determines '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 beyond a reasonable doubt.' " Powell v. State , 249 So.3d 355, 361 (Miss. 2018) (quoting Cotton v. State , 144 So.3d 137, 142 (Miss. 2014) ). Pursuant to Mississippi Code Section 97-3-53, the crime of kidnapping is committed when

Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will ....

Miss. Code Ann. § 97-3-53 (Rev. 2014). However, when a confinement is merely incidental to a lesser crime than kidnapping, this Court has found that confinement to be insufficient to support a kidnapping conviction. Cuevas v. State , 338 So.2d 1236, 1238 (Miss. 1976). In Cuevas , this Court held,

If forcible detention or movement is merely incidental to a lesser crime than kidnapping, such confinement or movement is insufficient to be molded into the greater crime of kidnapping. An illustration might well be a strong-armed robbery where the victim is detained and perhaps moved a few feet while being relieved of his wallet. The detention and movement would not support kidnapping albeit with force and unlawful. On the other hand, if the confinement or asportation be not merely incidental to a lesser crime, but a constituent part of the greater crime, the fact of confinement or asportation is sufficient to support kidnapping without regard to distance moved or time of confinement.

Cuevas , 338 So.2d at 1238.

¶ 29. Green's case is akin to the strong-armed robbery illustration in Cuevas . Here, Green did not remove Cathy from her house or transport her to any location outside of her own house. The Model Penal Code states that "a person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation ...." Model Penal Code § 212.1 (Am. Law Inst. 2017) (emphasis added). Similarly, after an analysis of kidnapping laws in numerous jurisdictions, the United States Court of Appeals for the Third Circuit determined that four factors are used in each approach to kidnapping:

(1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.

Gov't of Virgin Islands v. Berry , 604 F.2d 221, 227 (3d Cir. 1979).

¶ 30. The instant case involves no substantial duration of detention or asportation. Green's act of moving Cathy to the living room also created no significant danger to Cathy independent of Green's attempt to murder her. In fact, Green stated that when he became agitated with Cathy, he first went to his truck to retrieve his machete; he then came back into the house and commenced his assault on Cathy. Therefore, although the majority reasons that Green began his assault on Cathy only after the asportation was complete, Green already had commenced his attempted murder on Cathy when he walked into the house to the bedroom where Cathy was located. Because Green's removal of Cathy to the living room and his assault of Cathy are so interwoven, I believe that the removal was merely incidental to the attempted murder of Cathy. Accordingly, I would hold that, considering the evidence in the light most favorable to the verdict, the evidence was insufficient to support Green's kidnapping conviction. I would affirm his conviction of attempted murder.

WALLER, C.J., AND KITCHENS, P.J., JOIN THIS OPINION.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Attempted murder carries a minimum sentence of twenty years. Miss. Code Ann. § 97-1-7 (Rev. 2014). Kidnapping carries a minimum sentence of only one year. Miss. Code Ann. 97-3-53.

      Inter alia , Green cites a Connecticut decision that involves legislative intent of a Connecticut statute. State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008). Equally unavailing is the Third Circuit's interpretation of a Virgin Islands statute and the wording of the Model Penal Code. Sep. Op. ¶ 28-29. The controlling law is Mississippi Code Section 97-3-53.

      Graham was introduced in this appeal by Green, albeit for a different purpose.

      See also State v. Salamon , 287 Conn. 509, 545-46, 949 A.2d 1092, 1119 (2008) ("Although [the cases cited above] involve varying statutory language and analyses, they share a common theme, namely, that it is unlikely that the legislature intended to expose an accused to a kidnapping conviction, and the severe sanctions accompanying such a conviction, when the restraint involved is merely incidental to the commission of a separate, underlying crime.").


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    The MISSISSIPPI BAR v. Bruce D. BURTOFF
    NO. 2018-BD-01072-SCT
    Supreme Court of Mississippi.
    October 18, 2018
    ATTORNEYS FOR APPELLANT: JAMES RUSSELL CLARK, ADAM KILGORE, JACKSON
    ATTORNEY FOR APPELLEE: BRUCE D. BURTOFF (PRO SE)
    EN BANC.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. The Mississippi Bar, under Rule 13 of the Rules of Discipline for the Mississippi Bar, filed a formal complaint against Bruce D. Burtoff. Because the Supreme Court of Florida issued a public reprimand to Bruce D. Burtoff, and because he is licensed to practice in Mississippi, the Bar is obligated to present a certified copy of the judgment to this Court and to seek reciprocal discipline. The Bar asks this Court to discipline Burtoff appropriately and to tax all costs and expenses incurred in filing the formal complaint to Burtoff. After due consideration, we find that the requested relief should be granted.

FACTS & PROCEDURAL HISTORY

¶ 2. In 2004, Burtoff drafted estate planning documents for his mother-in-law and father-in-law, Mary and Charles Bullington. Mary Bullington died in 2012, and a dispute arose regarding the trust Burtoff had drafted. Burtoff represented his wife, the personal representative of Mary Bullington's estate and filed suit against Charles Bullington, his former client. Burtoff took positions contrary to the interests of his former client and continued representation of his wife in the probate matter when he knew or reasonably should have known he had a conflict of interest. Burtoff ultimately was disqualified as counsel for his wife and was found to have acted in violation of Rule 4-1.9(a) of the Rules Regulating the Florida Bar. On May 31, 2018, the Supreme Court of Florida reprimanded Burtoff publicly. Because Burtoff is licensed to practice in Mississippi, the Mississippi Bar, in compliance with Rule 13 of the Mississippi Rules of Discipline, filed its formal complaint.

DISCUSSION

¶ 3. This Court possesses "exclusive and inherent jurisdiction" over the discipline of attorneys under the Mississippi Rules of Discipline. McIntyre v. Miss. Bar , 38 So.3d 617, 623 (Miss. 2010). Burtoff is a licenced attorney in Mississippi and, therefore, is subject to the disciplinary jurisdiction of this Court. Mississippi Rule of Discipline 13, which governs reciprocal discipline, provides,

When an attorney should be subjected to disciplinary sanctions in another jurisdiction, such sanction shall be grounds for disciplinary action in this state, and certification of such sanction by the appropriate authority of such jurisdiction to the Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered, and it will not be necessary to prove the grounds for such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

M.R.D. 13. Under Rule 13, the certified copy of the judgment of public reprimand is "conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered." Id. This Court will not engage in further fact-finding when a sanction is imposed by another jurisdiction. Miss. Bar v. Shah , 749 So.2d 1047, 1049 (Miss. 1999). The sole issue before this Court is "the extent of final discipline to be imposed on the attorney in this jurisdiction." Id.

¶ 4. In this Court's application of the reciprocity doctrine, the sanction imposed here generally mirrors the sanction imposed in the sister state, absent extraordinary circumstances which compel, justify, or support variance from the foreign jurisdiction's sanction. Miss. Bar v. Drungole , 913 So.2d 963, 970 (Miss. 2005). The Court may impose sanctions less than or greater than those imposed by another jurisdiction. Miss. Bar v. Gardner , 730 So.2d 546, 547 (Miss. 1998). The following nine criteria are considered when determining reciprocal discipline:

(1) the nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of the dignity and reputation of the profession; (4) protection of the public; (5) the sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer's mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating and/or mitigating factors.

Miss. Bar v. Ogletree, 226 So.3d 79, 83 (Miss. 2015). So long as each is taken into consideration, this Court need not address each criterion separately. Id. An attorney "who is subject to reciprocal discipline may ... offer any mitigating factors which he thinks serve to diminish his culpability and therefore diminish the necessity for, or severity of, sanctions to be imposed by this Court." Miss. Bar v. Strauss , 601 So.2d 840, 844 (Miss. 1992).

CONCLUSION

¶ 5. In imposing the sanction of public reprimand upon Burtoff, the Supreme Court of Florida explicitly or implicitly considered the nine criteria utilized by this Court to determine an appropriate sanction for attorney misconduct. Burtoff acknowledged the truth of the allegations in the formal complaint and did not provide any mitigating factors. Therefore, we fully support the Supreme Court of Florida's imposition of the sanction of public reprimand and we likewise order a public reprimand and tax all costs and expenses incurred in filing the formal complaint to Burtoff. "Ordinarily, public reprimands are carried out by the senior circuit judge in the attorney's county of residence." Miss. Bar v. Jones , 226 So.3d 89, 92 (Miss. 2015) (citing Miss. Bar v. Abioto , 987 So.2d 913, 916 (Miss. 2007) ). In both Jones and Abioto , this Court ordered the attorneys to be publicly reprimanded in DeSoto County, Mississippi, because the attorneys lived in Memphis, Tennessee. Jones , 226 So.3d at 92 (citing Abioto , 987 So.2d at 916 ). Here, Burtoff's Response and General Admission to Formal Complaint indicates that his address is 1524 SE Eleventh Street, Fort Lauderdale, Florida 33316. The Mississippi Supreme Court and Court of Appeals Bar Roll states the same. But the Mississippi Bar's Lawyer Directory provides the following address for Burtoff: 108 Railroad Avenue, Orange, Virginia 22960-1623. We hold that Burtoff shall appear the first day of the next term of the Circuit Court of the First Judicial District of Hinds County after the mandate is issued to be publicly reprimanded in open court by the presiding judge.

¶ 6. BRUCE D. BURTOFF SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE ON THE FIRST DAY OF THE NEXT TERM OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY AFTER THE ISSUANCE OF THE MANDATE. BRUCE D. BURTOFF SHALL BE ASSESSED ALL COSTS AND EXPENSES.

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


author: WALLER, CHIEF JUSTICE, FOR THE COURT:

text:
    Tobias COLEMAN a/k/a Tobias R. Coleman a/k/a Tobias Rayshun Coleman a/k/a Tabias Coleman a/k/a Tabias Rayshun Coleman v. STATE of Mississippi
    NO. 2017-KA-00342-SCT
    Supreme Court of Mississippi.
    October 25, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, Jackson
    EN BANC.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. A jury found Tobias Coleman guilty of aggravated assault for shooting a man in the head. The judge sentenced him to twenty years' imprisonment, with five years suspended. Coleman now appeals.

¶ 2. We find that the trial court committed reversible error by admitting into evidence an undated, grainy Facebook image taken of the defendant Tobias Coleman holding what appears to be a handgun, years before the alleged crime, through the testimony of a witness who denied ever having seen Coleman's Facebook page or the photograph in question. We reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 3. On March 30, 2014, Zacharias Blanchard was shot in the head on the grounds of Club Rock, located in Oktibbeha County just outside of Starkville, Mississippi. Blanchard was taken to the Oktibbeha County Hospital by Joanna Burchfield, who had found him lying next to her car and bleeding. Blanchard was transferred by helicopter to the University of Mississippi Medical Center in Jackson for treatment by a neurosurgeon.

¶ 4. Upon returning to Starkville, Blanchard identified Tobias Coleman as the man who shot him. A grand jury charged Coleman with aggravated assault. Coleman was tried over two days in January 2017.

¶ 5. Blanchard testified that on the night of March 30, 2014, he arrived at Club Rock under the influence of "Molly," a drug described by Blanchard as a "sexual enhancer," and alcohol. Blanchard was accompanied by his friend Stephen Thomas Jr. Once inside Club Rock, Blanchard's cousin told him that Coleman and a group of friends had trapped him in the bathroom. To take up for his cousin, Blanchard walked outside to confront Coleman. Blanchard yelled at Coleman "from a distance," but he could not recall what he said. Blanchard also could not recall whether the area outside the club was well-lit or dark, although he remembered that Coleman was wearing a black t-shirt and black jeans. Upon seeing Coleman walking towards him, Blanchard testified that he did not protest or run because "if it was [his] time, it was [his] time." Blanchard stated that Coleman had "walked upon [him]" from behind and shot him "from the back." When asked why he would walk to a dark area and turn his back on a person that Blanchard alleged had previously tried to kill him, Blanchard responded that he "respect[ed] all and fear[ed] not."

¶ 6. Dr. Allen Butts was the State's second witness. He examined Blanchard at the Oktibbeha County Hospital. He determined that Blanchard had been injured by a gunshot wound that had entered through his forehead, and he stabilized Blanchard prior to his transfer to Jackson.

¶ 7. The State's last witness was Lieutenant Brett Watson, an investigator with the Oktibbeha County Sheriff's Office. He testified that between eight hundred to one thousand people were at Club Rock on March 30, 2014. Five people, including Blanchard, had been shot that night. Investigators found shell casings from three different calibers of guns-.380, .40, and .45 caliber. Lieutenant Watson testified that the different calibers of ammunition meant there likely had been multiple shooters that night. Shell casings were found in several different locations, but no DNA samples were recovered from the casings. The area where Blanchard was shot contained both .40 and .45 caliber shell casings, which, according to Lieutenant Watson, indicated that there had been more than one shooter. Lieutenant Watson and other investigators conducted interviews with the shooting victims, but most patrons had left the scene before law enforcement arrived. Investigators received names, nicknames, and tips about potential shooters. None were ever confirmed.

¶ 8. Lieutenant Watson interviewed Blanchard after he returned to Starkville from Jackson. Blanchard positively identified Coleman as the shooter, having picked him out of a photograph lineup.

¶ 9. After the State rested, the defense called Marcus Johnson. Johnson testified that he had been at Club Rock that night and had witnessed the shooting. According to Johnson, Blanchard and Thomas were involved in an altercation with another man. Johnson testified that both Blanchard and Thomas brandished their weapons and fired at a "dude with dreads[.]" But Johnson claimed that the man was not Coleman.

¶ 10. During cross-examination, the State asked Johnson how long he had known Coleman and if he had ever seen Coleman with a gun. Johnson testified he had known Coleman several years and had never seen him with a gun. The State then asked if Johnson had ever seen Coleman's Facebook page. Johnson answered that he had never seen Coleman's Facebook page because he had many "Facebook friends." In response, the State sought to introduce photographs from Coleman's Facebook page. Coleman objected, and the jury was excluded. The trial court reviewed the photographs-one showed Coleman holding a handgun; the other showed him holding a rifle. While the trial court excluded the photograph showing Coleman holding a rifle, the trial court found the other photograph to be relevant because it showed Coleman holding a black, semiautomatic pistol "in his life."

¶ 11. Coleman testified on his own behalf. He stated that the Facebook picture proffered by the State had been taken four years before the crime when he was still in high school. Coleman also stated that he was not in possession of a pistol the night of the shooting. Coleman denied Blanchard's allegations that he was the shooter and claimed to have fled Club Rock upon hearing the gunshots.

¶ 12. The jury found Coleman guilty of aggravated assault. The judge sentenced Coleman to twenty years in prison, with five years suspended. The trial court denied Coleman's motion for a new trial. Coleman now appeals.

DISCUSSION

¶ 13. On appeal, Coleman argues that the photograph, introduced through a witness who had no knowledge of the pistol and used as impeachment evidence, was irrelevant, inflammatory, and prejudicial.

¶ 14. The photograph was proffered by the State to impeach the defense witness, Marcus Johnson, who testified that he had never seen Coleman with a gun before. The photograph was an undated, grainy image purportedly taken from Coleman's Facebook page. The following exchange took place between the State, the trial court, and defense counsel regarding whether photograph should be admitted:

[The State]: My question to the witness was, had he ever been on Tobias Coleman's [F]acebook page. Those pictures were taken from his [F]acebook page. And I was going to ask him did he recognize Tobias from those photographs.
BY THE COURT: Okay
[The State]: And also I was going to ask him has he ever seen him with a gun? That was going to be the first question. Ask [sic] the Court can see in both of those photographs, the defendant is holding a gun, both a handgun and a rifle.

¶ 15. In response, defense counsel objected to the admission of the photograph on the basis of relevance. The following exchange occurred between defense counsel and the trial court:

[Defense Counsel]: Judge, if you will look at his hair on that picture, you can tell that picture is years and years old.
BY THE COURT: Well, from today, sure. I mean -
[Defense Counsel]: That should be relevant when he was carrying a pistol, too. Not that he's ever used it in his life.
BY THE COURT: What it shows is, him [Coleman] with a black-semiautomatic pistol in his life . And it's clearly him [Coleman].

(Emphasis added.)

¶ 16. We are troubled that the trial court did not apply the same logic when it refused to allow Coleman to impeach the victim, who tested positive for marijuana the night of the shooting. Coleman sought to cross-examine Blanchard regarding a toxicology screening conducted by the hospital that demonstrated that Blanchard, the only eyewitness to the shooting, tested positive for marijuana the night in question. The following exchange demonstrates inconsistent reasoning by the trial court:

[Defense Counsel]: So, would the Court be satisfied if he says he smoked weed two days prior but not that day but it was in his system? Does he need to testify that he's never smoked weed in his life?
[The State]: No, sir. That's not relevant whether or not he's ever smoked weed in his life .
BY THE COURT: That's exactly right. What you're seeking to do is, you're seeking to show that he was inebriated. And I understand that. You're hoping to show that he was - his recollection of things would not be good because he was impaired somewhat. Fair enough. That's allowable. But you can't do it through that document with him.
[Defense Counsel]: I understood that you should be able to impeach someone with anything.
BY THE COURT: Then you understood wrong. Who taught you evidence?

(Emphasis added.)

¶ 17. Not only did Blanchard-the only eyewitness to the shooting-test positive for marijuana the night in question, but he also testified that he taken "Molly" and had been drinking alcohol the entire day before arriving at Club Rock. We fail to see how the trial court could at one point make the determination that, because Coleman had wielded a gun "in his life," a blurry, four-year-old photograph taken from Facebook was relevant, but that a drug test conducted on Blanchard the night of the shooting was not, because "whether or not he's ever smoked weed in his life" was immaterial.

¶ 18. The trial court allowed the State to continue questioning Johnson regarding the photograph, and Johnson testified that he had never seen Coleman's Facebook page. When shown the picture by the State, he identified Coleman but said he looked much younger than he had looked at the time of shooting. When the State asked Johnson what Coleman was holding, Johnson said that it "might be a BB gun" and that, if it was a gun, he could not determine what type it was. With respect to the color of the weapon, Johnson testified that it appeared to be silver.

¶ 19. The State contends that the issue of whether it was proper to impeach Johnson with the photograph was not preserved by Coleman during that portion of the trial. However, immediately after Johnson testified that the gun portrayed in the photograph appeared to be silver, the following exchange took place:

[The State:] When was the last time you had your eyes checked?
[Johnson:] I don't remember.
[The State:] Okay. Do you have any problem with color vision?
[Johnson:] No sir.
[The State:] Okay. And you're telling this jury - you're telling them -
[Johnson:] You're telling me that don't look silver?
[The State:] No, sir, it does not. Does that gun look silver to you?
[Johnson:] Yes, sir.
[The State]: Your Honor, now I believe that the photographs should go into evidence for two reasons. One, it should go into evidence to - because [Johnson] stated earlier, he had never seen him with a gun, to impeach -
...
...
[Defense Counsel]: Your Honor, I would object to the picture, again . There's a lack of foundation . There's a lack of relevancy . And it's inadmissible hearsay in this matter.
My client tells me that he has a picture that's unblurred [sic] that would show that the actual gun is silver. And I asked that he be allowed to produce it.
[The State]: Your client can take the stand and testify to whatever he wants to.
BY THE COURT: Okay. I will allow the picture to be introduced. I will at least allow you to inquire of the witness, especially in light of the fact that Mr. Blanchard [the victim] has testified that there was a black semi-automatic pistol that your client had on that particular night . And there was an attempt to impeach him or he was impeached or allowed to -
So I will allow this to come in.

(Emphasis added.)

¶ 20. Therefore, the objection by Coleman preserved the issue See Carter v. State , 722 So.2d 1258, 1261 (Miss. 1998) (holding that a defense objection on the grounds of relevance, but not specifically on the grounds of Rule 404(b), was not procedurally barred since Rule 404(b) is an issue of relevance and the defense had objected on the grounds of relevance).

¶ 21. The trial transcript above also illustrates that the trial court based its evidentiary decision, in part, on Blanchard's testimony. Blanchard believed the handgun used by Coleman to be of a .40 or .45 caliber. However, when asked on cross-examination if he recalled giving a statement to the police in which he stated Coleman was carrying a .380 caliber weapon, Blanchard replied that he could not recall. Upon later taking the stand, Coleman testified that, while he was in the photograph, it had been taken four years prior to the shooting; he was holding a neighbor's weapon simply "trying to look cool."

¶ 22. In support of the admission of the Facebook photograph, the State relies on both Grant v. State , 762 So.2d 800, 805 (Miss. Ct. App. 2000), and Fraise v. State , 17 So.3d 160, 166 (Miss. Ct. App. 2009). In those cases, also cited by the concurrence, the Court of Appeals found that the probative value of photographs in which the defendants appeared holding guns had not been outweighed sufficiently by the prejudicial effect. The State contends that each case "directly addressed" the issue before this Court; however, both cases are distinguishable.

¶ 23. In Grant , the defendant was on trial for armed robbery and possession of a concealed weapon by a convicted felon. Grant , 762 So.2d at 803. At trial, not only did two eyewitnesses testify that Grant had been holding the gun, but one eyewitness testified with particularity about the distinctive features of the gun in question. Id. at 805. Specifically, the witness described the gun as a ".357 [caliber] that had a black handle with molded hand grips and an emblem imprinted on the side of the handle." Id. at 803. Further, the gun recovered from the crime scene appeared identical to the gun documented in the photograph. Id. at 805. As a result, the court found the admission of the photograph to have been more probative than prejudicial. Id. at 806.

¶ 24. Likewise, in Fraise , the defendant also was on trial for armed robbery and possession of a weapon by a convicted felon. Fraise , 17 So.3d at 162. Three eyewitnesses to the armed robbery described the gun used by the assailant as "black and silver in color." Id. at 166 (emphasis added). As in Grant , the gun in the photograph recovered from the defendant's home appeared identical to the distinctive features of the gun described in the three eyewitnesses' testimony. Id. Therefore, the court found the photograph highly probative and held its admission had not been an abuse of discretion. Id.

¶ 25. Unlike Grant and Fraise , here, no eyewitnesses other than the victim testified that Coleman had been the shooter. Neither the gun nor the caliber of the gun used in the shooting could be ascertained from the evidence. Additionally, the color of the weapon and the exact kind of weapon depicted in the picture were disputed. Most importantly, Coleman testified that the photograph had been taken four years prior to the shooting. The holdings in Grant and Fraise are thus distinguishable.

¶ 26. The concurrence also cites Ross v. State , 954 So.2d 968, 993 (Miss. 2007), in which this Court held that "Rule 401 is construed broadly in favor of admitting evidence with even slight probative value." Respectfully, however, Ross is not applicable here. First, in Ross , the defendant sought to suppress the introduction of what was alleged to have been the actual murder weapon, not a grainy, undated photograph from Facebook that the testifying witness knew nothing about. Id. Second, an eyewitness testified that the defendant had thrown the weapon in the same ditch in which it eventually was recovered after the defendant allegedly had admitted to the murder. Id. Third, the weapon was a .22 caliber pistol, which not only was found in the ditch behind where the victim was killed, but also was of the same caliber as the weapon responsible for the victim's death. Id. Fourth, the State identified the owner of the weapon and demonstrated that the defendant had access to it. Id. Finally, the issue was not preserved properly by the defendant at trial and, thus, was procedurally barred from appellate review. Id. Even so, because Ross had been charged with capital murder, a plain-error analysis was conducted to determine whether the admission of the weapon was proper. Id. at 992. As such, this Court found that, "[u]nder the circumstances , the trial court did not abuse its discretion in admitting the pistol into evidence." Id. at 993 (emphasis added).

¶ 27. This Court is mindful of the wide discretion afforded a trial judge with respect to the admission and exclusion of evidence. But this Court has a constitutional duty to enforce the rules promulgated by this Court "fairly, evenly and predictably." Patton v. State , 34 So.3d 563, 572 (Miss. 2010). The bench and bar are entitled to rely on this Court "to apply the rules no less diligently to the courts than to the lawyers and litigants." Id.

¶ 28. When prejudicial evidence is admitted that fails to link the defendant to the crime alleged, the decision of the trial court to admit such evidence constitutes an abuse of discretion. See Walker v. State , 878 So.2d 913, 917 (Miss. 2004) (holding that the trial court erred in admitting a towel allegedly containing the defendant's semen because "the [State]'s failure to positively connect the semen on the towel to [the defendant] render[ed] the towel inadmissible").

¶ 29. Though an abuse-of-discretion standard affords great discretion to the trial judge, "[t]his Court has not hesitated to invoke its authority to order a new trial and allow a second jury to pass on the evidence where it considers the first jury's determination of guilt to be based on extremely weak or tenuous evidence[.]" Dilworth v. State , 909 So.2d 731, 737 (Miss. 2005).

¶ 30. A factually analogous decision relating to the admission of highly prejudicial photographs is the Florida Supreme Court's ruling in Agatheas v. State , 77 So.3d 1232 (Fla. 2011), in which the Florida Supreme Court considered whether the admission of photographs of a gun recovered from a backpack in the defendant's possession five years after the charged murder was error. Id. at 1237. The Florida Supreme Court in Agatheas determined that the gun, which was discovered five years after the crime and which had a different caliber than the bullet casings found at the crime scene, was in no way related to the murder. Id.

¶ 31. Moreover, the Florida Supreme Court in Agatheas held that the gun, along with the photographs of the gun, were not relevant to corroborate the testimony of the State's witness, the defendant's former girlfriend. Id. at 1239. The girlfriend had testified that the backpack in which the defendant kept his gun was missing on the night of the murder. Id. The Florida Supreme Court found that the gun recovered from the backpack was relevant only to demonstrate the defendant's bad character or propensity; thus, the admission of the photographs and testimony regarding the weapon was "unquestionably error." Id. at 1241.

¶ 32. Here, we fail to understand the probative value of a blurry, undated photograph showing Coleman, years prior to the alleged crime, holding an unidentified weapon-the type and color of which were disputed. We agree with the concurrence that the photograph neither impeached Johnson's testimony regarding whether he had ever seen Coleman with a gun, nor did it corroborate Blanchard's testimony that he had been shot by a "black, semiautomatic weapon." Instead, the photograph was admitted by the trial court to show that Coleman had possessed a pistol at some point "in his life ." Moreover, because no evidentiary connection was established by the State between Johnson's testimony, the Facebook photograph, and the weapon alleged to have been used by Coleman, the admission of such a photograph, as stated so eloquently in Agatheas , would be only to "demonstrate [the defendant]'s bad character or propensity." Id. at 1239.

CONCLUSION

¶ 33. Because the trial court abused its discretion by admitting the photograph, Coleman's conviction and sentence for aggravated assault are reversed, and this case is remanded to the trial court for a new trial.

¶ 34. REVERSED AND REMANDED .

KITCHENS, P.J., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.; WALLER, C.J., AND BEAM, J., JOIN IN PART.

MAXWELL, JUSTICE, CONCURRING IN PART IN RESULT:

¶ 35. I agree with the majority that this case should be reversed and remanded. But the problem here is not with the photograph itself-it is the manner in which the State introduced it. I find no fault with the judge's general discretionary call that the photograph of Coleman brandishing a pistol was of sufficient probative value. But I do find he erred in admitting it as impeachment evidence. I write separately to address that notion.

I. Mississippi Rules of Evidence 401 and 403

¶ 36. The majority re-weighs the evidence-giving its own personal view of the photograph's evidentiary worth. I respectfully suggest this approach is inappropriate because it cuts against the broad discretion granted trial judges when making general evidentiary calls. " Rule 401 is construed broadly in favor of admitting evidence with even slight probative value." Ross v. State , 954 So.2d 968, 993 (Miss. 2007) (citation omitted) (emphasis added). And this Court has been consistent and clear that trial judges have "sound discretion" whether to admit potentially prejudicial evidence. Baldwin v. State , 784 So.2d 148, 158 (Miss. 2001). Indeed, "[u]nder Rule 403, the exclusion of prejudicial evidence is permissive "-meaning exclusion of such evidence is not mandated by rule. Ross , 954 So.2d at 993 (emphasis added). In other words, even in those instances in which "a trial court determines that the prejudicial effect of evidence substantially outweighs its probative value, it is not obligated to exclude the evidence , but may do so at its discretion ." Id. (emphasis added).

¶ 37. Blanchard testified that Coleman was the shooter. But the actual pistol was not recovered, and the bullet could not be removed safely from Coleman's head for comparison with the recovered shell casings. Blanchard had already described the pistol as a black pistol bearing semiautomatic characteristics. And the judge found Coleman's pistol in the photograph to have been similar enough to Blanchard's description to be relevant and admissible. Not only is this a discretionary call on the trial judge's part, but the Court of Appeals has directly addressed similar findings at least twice.

¶ 38. In Grant v. State , the Court of Appeals affirmed a trial judge's admission of a photograph of the defendant "wielding a gun that appears to be identical to the weapon used in the robbery ...." Grant v. State , 762 So.2d 800, 805 (Miss. Ct. App. 2000). Though the photograph was prejudicial, it was also highly probative. Id. In Fraise v. State , the Court of Appeals again affirmed a trial judge's decision to admit a photograph of a defendant "holding a handgun almost identical to the one used in the robbery." Fraise v. State , 17 So.3d 160, 166 (Miss. Ct. App. 2009). Because the photograph depicted the defendant with a gun similar to the one used in the alleged crime, the court deemed it "highly probative." Id. See also United States v. Brooks , 715 F.3d 1069, 1077 (8th Cir. 2013) (photographs showing defendant in possession of a firearm resembling the one used in a bank robbery were admissible because evidence was intrinsic to charged offense); Johnson v. United States , 701 A.2d 1085, 1092 (D.C. 1997) (photograph of defendant holding revolver of same caliber as gun used in murder was admissible, even though photograph was more than a year old, "because the requisite link was made between the gun" depicted in photograph and the gun used in the crime).

¶ 39. That this particular photograph may have been older perhaps tempered its weight some, but it did not, in the judge's view, impermissibly overshadow its probative value. Had the photograph been authenticated, introduced by, and admitted through a proper sponsoring witness during the State's case, or perhaps in rebuttal, I would have no concern with its admission. But it was not.

II. Improper Impeachment

¶ 40. Instead, the State tried to shoehorn the photograph in evidence after it rested. It waited until the defense's case-in-chief and tried to cast the photograph as impeachment evidence. This occurred after a defense witness testified he had never seen Coleman with a gun. The problem with admitting the photograph in this posture was the fact that the witness testified he had never visited Coleman's Facebook page-the site on which Coleman was alleged to have posted the photograph. And the witness had never previously seen the subject photograph. In other words, the witness did not testify about anything for which the photograph could be used to impeach him. So the photograph was not proper extrinsic impeachment evidence. The defendant lodged an objection to the photograph's admission as impeachment evidence, which should have been sustained. For this reason, under the facts of this particular case, I agree with the majority that reversal is appropriate.

RANDOLPH, P.J., JOINS THIS OPINION. WALLER, C.J., AND BEAM, J., JOIN THIS OPINION IN PART.

      "If photographs are 'grainy,' they are not clear because the many black and white or coloured dots that make up the image can be seen." Grainy , Cambridge Dictionary (2018), https://dictionary.cambridge.org/us/dictionary/english/grainy (last visited September 27, 2018).

      It is undisputed that Blanchard and Coleman had a history. Blanchard claimed at trial that Coleman previously had sought to buy a car from him, and upon realizing he could not afford it, he tried to buy the car with drugs. When Blanchard refused, Coleman tried to shoot Blanchard, but his gun jammed. Coleman disputed Blanchard's claim and stated that, although he and Coleman at one point "had beef over a female," they were no longer enemies.

      Because this issue is dispositive, we need not address issues II and III. The errors assigned on appeal are as follows:
      I. Whether a photograph recovered from Coleman's Facebook account was erroneous when the witness it was used to impeach testified to having no knowledge either of the photograph or of Coleman owning a gun.
      II. Whether the trial court erred in limiting Coleman's cross-examination of Lieutenant Watson regarding his notes that designated other potential suspects in the shooting.
      III. Whether the verdict was contrary to the weight of the evidence.

      While the issue of whether Coleman's Facebook page was authenticated properly is not before this Court on appeal, we acknowledge that at no point during the trial did the State seek to ascertain when the picture had been uploaded. See Smith v. State , 136 So.3d 424, 433 (Miss. 2014) (holding that the court abused its discretion because the State failed to provide evidence other than the defendant's Facebook profile picture in determining whether to authenticate messages purportedly sent by the defendant through Facebook).

      Although not before this Court, substantial authority supports Coleman's attempted cross-examination of Blanchard with the toxicology test. See Brown v. State , 690 So.2d 276, 286 (Miss. 1996) (holding that a drug test was admissible based on the fact that it was relevant for the purpose of proving discrepancies in [the defendant]'s statement to police); see also Newell v. State , 49 So.3d 66, 73 (Miss. 2010) (finding the trial court's exclusion of a shooting victim's blood toxicology results was reversible error because the trial court's refusal to admit the toxicology screening prevented the defendant from fully presenting his defense theory); Byrd v. State , 154 Miss. 742, 123 So. 867, 869 (1929) (holding that the defendant can raise the victim's intoxication to demonstrate all the conditions existing at the time and giving rise to the killing, including the victim's mental state).


text:
    Brian KING a/k/a Brian King, Jr. a/k/a Brian S. King, Jr. v. STATE of Mississippi
    NO. 2017-KA-01632-SCT
    Supreme Court of Mississippi.
    November 29, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES, JACKSON.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, JACKSON.
    BEFORE RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Brian King was indicted as a habitual offender and charged with one count of possession of a firearm by a convicted felon. After being found guilty, King was sentenced to a term of ten years without the possibility of parole. King contends that the trial court erred in denying his request for a psychological examination and in allowing the introduction of evidence of prior bad acts. Finding no error, we affirm King's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. At trial, the State called Heath Blancett, an officer with the Laurel Police Department. Blancett testified that he responded to a call about an attempted armed robbery of Carlos Malone. Malone, who at the time of trial was in jail on a parole violation, testified that he was walking down the street one evening when two men approached him from behind. Malone testified that when he turned around, King was pointing a gun at him. The men demanded Malone's phone but left before he gave it to them. Malone called the police to report the attempted armed robbery and later was able to identify the gun, which was recovered by the police from King's apartment, as the gun used by King. Malone testified that, although he was not familiar with guns, he initially believed King's gun was a .40 caliber Glock. Malone testified on cross-examination that he informed the police that he no longer wanted to pursue the attempted armed robbery charge.

¶ 3. Officer Charlie Turner with the Laurel Housing Authority informed Investigator Stewart of King's location. Turner and Stewart went to that address and found King there in an apartment on the second floor. Turner testified that he did not observe anyone with King. Turner found a weapon under the mattress in the bedroom of the apartment. The fully loaded gun was later turned over to Investigator Reaves, who testified that he swabbed the gun for DNA and then sent it to the Mississippi Crime Lab for prints. Reaves was able to identify the weapon retrieved from the apartment as the .45 caliber Glock 21 in evidence.

¶ 4. Jamie Bush, a forensic scientist with the crime lab, was tendered as an expert in forensic latent prints. Bush testified that he found a latent palm print on the magazine of the gun found in the apartment. He identified the palm print as having been made by King's left palm.

¶ 5. The State rested, and King chose not to testify in his defense. The defense rested after calling no witnesses. The jury found King guilty of possession of a firearm by a convicted felon.

¶ 6. In a separate hearing, the trial court examined King's prior sentencing orders and, finding that Mississippi Code Section 99-19-81 (Rev. 2015) was satisfied, sentenced King to a term of ten years without the possibility of parole. King moved for judgment notwithstanding the verdict, which the trial court denied.

STATEMENT OF THE ISSUES

I. Whether the trial court erred in refusing the defendant a psychological examination when defense counsel, having personal knowledge of King's detachment from reality, provided reasonable grounds to the court why the defendant was unable to assist in his own defense.

II. Whether the State knowingly interjected improper evidence of other bad acts, thereby prejudicing the jury against the defendant.

ANALYSIS

I. Whether the trial court erred in refusing the defendant a psychological examination when defense counsel, having personal knowledge of King's detachment from reality, provided reasonable grounds to the court why the defendant was unable to assist in his own defense.

¶ 7. Trial courts are afforded broad discretion in determining whether to order a mental evaluation and competency hearing. Harden v. State , 59 So.3d 594, 603 (Miss. 2011). In determining whether an abuse of discretion occurred, this Court considers whether "the trial judge received information which, objectively considered, should reasonably have raised a doubt about the defendant's competence and alerted the judge to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense." Goff v. State , 14 So.3d 625, 644 (Miss. 2009).

¶ 8. King claims that the trial court erred in denying his request for a mental examination to determine if he was competent to stand trial. Prior to trial, defense counsel filed a motion requesting that the trial court order a psychiatric examination for King. Counsel argued that he had "reason to believe his client suffers from some mental disease, injury or deficiency which could render his client incapable of assisting in preparation of his defense of the cause against him, or in standing trial on said cause." Counsel also argued that King might be "incapable of intelligently pleading on the merits of his case."

¶ 9. During the hearing on counsel's motion, counsel argued that King's inability to communicate and reconcile with reality necessitated that a psychiatric examination be performed. King asked the trial court if he could speak, and the court granted him the opportunity. King was placed under oath and testified that he understood he did not have to speak at the hearing in support of his motion. King stated that it was his choice to testify.

¶ 10. King testified that he previously was indicted on the exact charge for which he, at the time of his trial, was serving time. He argued that such was improper due to double jeopardy. From King's testimony, the trial judge determined that King had pleaded guilty in 2013 to possession of a firearm. He was sentenced to a ten-year term, with three years suspended. The trial judge explained to him that the 2015 charge was for a similar offense that had occurred approximately two years after the first charge.

Mr. King, once you're a felon, even though you may can get convicted of an earlier possession of a firearm like the one you were arrested for in 2013, and you're doing time on that, that doesn't mean that you can later carry a firearm without consequence two years later.

¶ 11. King then argued that he was never arrested for possession of a gun, only for armed robbery. The district attorney then explained that King initially was arrested for armed robbery, but that those charges had been reduced to possession of a firearm by a felon because the State did not consider credible the alleged victim of the armed robbery. When police arrested King the day after the alleged armed robbery, a weapon was found in his apartment. The State decided to proceed only on the weapon charge and not the armed-robbery charge. King acknowledged that he understood the State was only pursuing the felon-in-possession-of-a-firearm charge.

¶ 12. The trial judge stated as follows:

I do not find, based on my and your conversation, that you have any kind of mental deficiency. In fact, it seems the opposite of that to me, that you have none at all, that you're perfectly coherent, capable of assisting your attorney. You have rational thoughts, rational argument. But this is your attorney. And you're facing this charge of possession of a firearm. It is not the same event that you were charged with back in 2013. It's one on October 27th, 2015.

¶ 13. Defense counsel continued to argue that, while it appeared King could rationalize, he could not reconcile his double-jeopardy argument. When the trial judge once again asked King if he understood the charges against him, King argued that he never had a gun. The trial judge explained that was a fact issue for trial.

If you say you didn't have a gun, that's a fact issue for trial. And you can testify at your trial that you didn't have a gun, this is all a mistake. You can testify to that at the trial. You have that right to say, I didn't even have a gun; I didn't do this. You have that right to testify at trial. You have every right to do that.

The trial judge denied the motion for a psychiatric examination.

¶ 14. At the time King was indicted and the motion for a psychiatric examination was filed, Rule 9.06 of the Mississippi Uniform Rules of Circuit and County Court Practice controlled competency to stand trial. Rule 9.06 reads in pertinent part,

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with a § 99-13-11 of the Mississippi Code Annotated of 1972.

URCCC 9.06. However, prior to trial on July 1, 2017, that rule was abrogated by Rule 12 of the Mississippi Rules of Criminal Procedure.

There is a presumption of mental competency. In order to be deemed mentally competent, a defendant must have the ability to perceive and understand the nature of the proceedings, to communicate rationally with the defendant's attorney about the case, to recall relevant facts, and to testify in the defendant's own defense, if appropriate. The presence of a mental illness, defect, or disability alone is not grounds for finding a defendant incompetent to stand trial. If as a result of mental illness, defect, or disability, a defendant lacks mental competency, then the defendant shall not be tried, convicted, or sentenced for a criminal offense.

MRCrP 12.1.

If at any time before or after indictment, the court, on its own motion or the motion of any party, has reasonable grounds to believe that the defendant is mentally incompetent, the court shall order the defendant to submit to a mental examination.

MRCrP 12.2. Because no change in the law had occurred, the trial court proceeded under the new criminal rules.

¶ 15. After questioning King, the trial court found no reasonable grounds to support that King was mentally incompetent. In fact, the trial court found the opposite-that King was coherent and rational. King failed to meet his burden and to overcome the presumption that he was competent to stand trial. King presented no evidence to raise any doubt about his competency to stand trial or to rationally aid in his defense. See Goff , 14 So.3d at 644. We find that the trial court did not abuse its discretion in denying the motion for a psychiatric examination.

II. Whether the State knowingly interjected improper evidence of other bad acts, thereby prejudicing the jury against the defendant.

¶ 16. King argues that the State improperly adduced evidence of an armed robbery against Carlos Malone. While the armed robbery was mentioned numerous times, the evidence was presented to inform the jury how the investigation against King began. Malone initially reported that King had robbed him at gunpoint. Further, the trial court informed the jury early on in the trial that any mention of robbery was not to prove that a robbery actually had occurred.

¶ 17. "Proof of another crime is admissible where the offense charged and that offered to be proved are so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences." Neal v. State , 451 So.2d 743, 759 (Miss. 1984). See also Wheeler v. State , 536 So.2d 1347, 1352 (Miss. 1988). We have also held that the State has a "legitimate interest in telling a rational and coherent story of what happened ...." Neal , 451 So.2d at 759. See also Brown v. State , 483 So.2d 328, 330 (Miss. 1986) ("Where substantially necessary to present to the jury the complete story of the crime evidence or testimony may be given even though it may reveal or suggest other crimes.").

¶ 18. King's act of possessing the weapon during the attempted robbery of Malone and his mere possession of the weapon was a single transaction. In an attempt to present the full story to the jury, Blancett testified that he was called to the scene of an attempted robbery and that the victim identified the person with the gun as King.

¶ 19. The parties stipulated that King was a convicted felon. Malone testified that he had known King his entire life and that King had pointed a gun at Malone. King did not testify and did not put on any witnesses to refute the State's evidence that he, a convicted felon, had possessed a weapon. We find this issue lacks merit.

CONCLUSION

¶ 20. We affirm the trial court's denial of King's motion for a psychiatric examination, because no reasonable grounds existed to believe that King was mentally incompetent. Further, King's argument that the State improperly interjected evidence of other bad acts is without merit, because the attempted armed robbery and possession of a firearm stemmed from the same transaction or occurrence and provided to the jury a complete story of what happened. We affirm the conviction and sentence of Brian King.

¶ 21. AFFIRMED.

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


text:
    Robert Bryan OGLETREE v. The MISSISSIPPI BAR
    NO. 2018-BR-00758-SCT
    Supreme Court of Mississippi.
    November 29, 2018
    TIMOTHY D. MOORE, Jackson, ATTORNEY FOR PETITIONER
    ADAM B. KILGORE, Jackson, ATTORNEY FOR RESPONDENT
    En Banc.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. This is Robert Bryan Ogletree's first petition for reinstatement to the practice of law following his six-month suspension in 2015. Ogletree has met the jurisdictional requirements for reinstatement and has met his burden of proving that he has rehabilitated his conduct and moral character. Accordingly, this Court grants Ogletree's petition for reinstatement.

FACTS & PROCEDURAL HISTORY

¶ 2. The facts leading to Ogletree's suspension are set out in this Court's opinion in Mississippi Bar v. Ogletree , 226 So.3d 79, 80-81 (Miss. 2015) :

In January 2011, John Buckley hired Ogletree to represent him in a child-support modification matter. Ogletree requested a $1,000 retainer, from which he would charge $250 per hour. Buckley gave Ogletree a check for $400 as partial payment of the retainer. While Ogletree maintained three trust accounts at the time, he did not deposit Buckley's $400 check into any of them. Rather, the check was deposited into Ogletree's general operating account. Ogletree subsequently terminated his representation of Buckley. Ogletree wrote Buckley a check for $400 from one of his trust accounts to refund Buckley's partial payment of the retainer. The check was returned for insufficient funds. Ogletree then delivered $440 in cash to Buckley.
....
The Formal Complaint alleged that Ogletree had failed to safekeep client funds, that he had commingled personal and business funds with client and third-party funds, that he had written checks for personal and business expenses from his trust accounts, and that his trust accounts were overdrawn several times and several checks were returned for insufficient funds. The formal complaint asserted that Ogletree had violated Rule 1.15(a) and Rule 8.4(a) and (d) of the Mississippi Rules of Professional Conduct. In response to the Formal Complaint, Ogletree admitted that he had paid personal expenses out of his own trust accounts, that the trust accounts had been overdrawn, and that checks had been returned for insufficient funds. However, he claimed that the errors were inadvertent mistakes and the result of miscalculations; he denied commingling or intentional misappropriation of client funds.

At the hearing before the Complaint Tribunal, Ogletree testified that, in 2002, his wife learned that she had a brain tumor and underwent major surgery. Id. Ogletree testified that, as a result of his wife's illness, he suffered from depression, anxiety, and insomnia-conditions for which he took medications. Id. Due to his mental state at the time, Ogletree admitted that he failed to adequately monitor his accounts. Id. at 82. Ogletree fully acknowledged that he made a mistake and that he should have paid his business and personal expenses out of his operating account. Id.

¶ 3. Ultimately, the Complaint Tribunal held that Ogletree had violated Rules 1.15(a) and 8.4(a) and (d) of the Mississippi Rules of Professional Conduct. Id. Consequently, Ogletree was suspended from the practice of law for six months and was referred to the Lawyers and Judges Assistance Program. Id. On the Bar's appeal from the Tribunal's decision, this Court affirmed, finding that, given the totality of the circumstances, the six-month suspension was appropriate to punish Ogletree for his misconduct. Id. at 87. Justice Coleman, joined by Presiding Justice Randolph, dissented and would have imposed a three-year suspension. Id. at 87-89 (Coleman, J., dissenting).

STANDARD OF REVIEW

¶ 4. This Court has exclusive jurisdiction over attorney-reinstatement cases. In re Morrison , 819 So.2d 1181, 1183 (Miss. 2001). This Court conducts a de novo review of the evidence in such cases, acting as the trier of fact on a case-by-case basis. Id. The petitioner "carries the burden of proving that he has rehabilitated himself and has established the requisite moral character to entitle him to the privilege of practicing law." Stewart v. Miss. Bar , 5 So.3d 344, 346-47 (Miss. 2008) (citing In re Holleman , 826 So.2d 1243, 1246 (Miss. 2002) ). The petitioner must exhibit "[a] firm resolve to live a correct life evidenced by outward manifestations sufficient to convince a reasonable mind clearly that the person has reformed ...." Phillips v. Miss. Bar , 427 So.2d 1380, 1382 (Miss. 1983) (quoting Ex parte Marshall , 165 Miss. 523, 556, 147 So. 791, 798 (1933) ). The standard of proof in reinstatement cases is clear and convincing evidence. Wong v. Miss. Bar , 5 So.3d 369, 371 (Miss. 2008).

DISCUSSION

I. Jurisdictional Requirements

¶ 5. The petitioner must meet the jurisdictional requirements under Rule 12 of the Mississippi Rules of Discipline for the State Bar. Miss. R. Discipline 12; In re Benson , 890 So.2d 888, 890 (Miss. 2004) (citing In re Holleman , 826 So.2d at 1247 ).

¶ 6. Rule 12 requires that a petitioner (1) state the cause or causes for suspension or disbarment; (2) provide the names and current address of all persons, parties, firms, or legal entities who suffered pecuniary loss as a result of the improper conduct; (3) make full amends and restitution; (4) demonstrate that he or she has the necessary moral character to practice law; and (5) show that he or she possesses the requisite legal education to be reinstated. Miss. R. Discipline 12.7; see also In re Benson , 890 So.2d at 890.

¶ 7. Though not a jurisdictional requirement, the Bar's position is a factor for consideration as well. In re Benson , 890 So.2d at 890 (citing In re Holleman , 826 So.2d at 1248 ). The Bar supports Ogletree's reinstatement based on the fact that he took responsibility for his actions, the mitigating circumstances of his wife's illness during the period of the violation, and his aggressive and honest pursuit of rehabilitation.

A. Cause for Suspension

¶ 8. Ogletree, in his petition, accepted full responsibility for his actions in his representation of Buckley, which resulted in his suspension. In addition, he provided the Bar with copies of this Court's decision suspending him and discussed the matter thoroughly throughout his deposition. Through his petition and testimony, Ogletree sufficiently explained the reason for his suspension and accepted full responsibility.

B. Names and Current Addresses of all Persons, Parties, Firms, or Legal Entities Who Suffered Pecuniary Loss Due to Ogletree's Misconduct

¶ 9. Ogletree avers that no person, party, firm, or legal entity suffered any pecuniary loss or indirect pecuniary harm as a result of his misconduct. Ogletree has declared that no clients were harmed by his suspension, that none of his clients' cases were adversely affected, and that none his clients had trouble finding new counsel. The Bar does not contest this assertion. Ogletree reimbursed the Bar for costs.

C. Amends and Restitution

¶ 10. Ogletree also avers that he has made full amends and restitution to those hurt financially by his conduct. Specifically, Ogletree refunded to Buckley all costs and losses-including overdraft charges-he incurred from a check that was refused for insufficient funds. In his deposition and petition Ogletree states that no other funds were owed to Buckley or any of his other clients. The Bar does not contest this assertion.

D. Requisite Legal Education for Reinstatement

¶ 11. Ogletree testified that he has completed twenty-four hours of continuing legal education. In addition, Ogletree asserts that he consistently reads summaries of new opinions from this Court and the Court of Appeals and that he has studied regulations related to workplace safety. Ogletree has also taken two week-long classes related to Occupational Safety and Health Administration ("OSHA") regulations and he currently serves as an authorized OSHA instructor for general industry. Furthermore, Ogletree testified that he has studied multi-party liability and construction issues, an area of law in which he intends to practice in the event of his reinstatement.

E. Rehabilitation and Requisite Moral Character

¶ 12. Ogletree provides the following evidence as proof he has demonstrated the necessary moral character to be reinstated to the practice of law.

1. Letters of Support

¶ 13. Ogletree submitted twelve letters of support for his reinstatement. Chip Glaze, Director of the Lawyer and Judges Assistance Program ("LJAP"), wrote that Ogletree had met the criteria for fitness to practice law. Every letter submitted supported Ogletree's skill and fitness for the practice of law. Moreover, these letters uniformly state that Ogletree has been both honest and remorseful about the actions that resulted in his suspension and express provide high opinions of Ogletree's honesty, humility, and dedication to his community.

2. Employment Since Suspension

¶ 14. Ogletree testified that he ceased to practice law in the fall of 2012, almost a year before his suspension. During that time, Ogletree worked as an automobile salesman in order to "pay the bills." After Ogletree's suspension in 2013, he worked as a construction safety worker. Since August of 2013, Ogletree has been employed by the Alabama Department of Transportation.

3. Mental and Emotional Status

¶ 15. The Bar reported that, during his deposition, Ogletree appeared to be mentally fit and without apparent medical problems. Ogletree testified that he does not use illegal drugs, that he does not abuse alcohol, that he no longer suffers from depression, and that he generally is in good health. Ogletree contended that his depression manifested after his wife's first brain tumor from 2001 to 2002. He testified that he felt "helpless and despair" that he had never felt before. As a result, Ogletree's depression was considered by this Court to be a mitigating factor in the evaluation of his actions and, in turn, his suspension. Ogletree , 226 So.3d at 84.

¶ 16. Since Ogletree had asserted that his depression was an underlying cause of the disciplinary matter, the Complaint Tribunal ordered that he be referred to LJAP for evaluation. Ogletree had submitted to the LJAP regarding treatment for his depression prior to his disciplinary hearing.

Ogletree underwent a full psychiatric assessment on referral from LJAP.

¶ 17. Ogletree successfully addressed his depression and self-esteem issues through his participation in LJAP. He began to rebuild his self-esteem, and his depression diminished. On April 18, 2017, Ogletree's psychiatrist, Andrew Bishop, M.D., opined that Ogletree was "doing well mentally and physically and [is] well adjusted socially in [his] home life and occupational life." Dr. Bishop further observed that, "[t]here is no medical or psychological contraindication to [Ogletree's] practicing law."

4. Civic, Church, and Charitable Involvement

¶ 18. Ogletree's civic and charitable involvement is limited. In particular, his wife was recently diagnosed with thyroid cancer, separate and apart from the brain tumors that she was diagnosed with in 2002. As noted above, Ogletree's work forced him to travel "four or five" days a week, and he had to be available at all times to assist his wife. Ogletree asserted that, when he is home, he tries "to take care of the grass, ... the house, ... and what needs to be done for [his wife]." As a result of his obligations to his family and work, Ogletree contends he has little to no spare time.

¶ 19. However, Ogletree testified that he does attend Meadow Grove Baptist Church, where he attends Sunday school classes and participates in clothes and food drives. In addition, Ogletree has provided monetary donations to St. Jude Hospital.

F. Future Plans

¶ 20. Ogletree testified that, if his petition is granted, he planned to continue his current line of work-but in a legal capacity. Ogletree stated that he has the requisite knowledge to practice law and believes that, were he readmitted to the practice of law, he could benefit his clients. Ogletree asserted that he has no intention, for the time being, of returning to private practice.

G. Recommendation of the Bar

¶ 21. After conducting a deposition of Ogletree and an investigation into the merits of his Petition for Reinstatement, the Bar recommends that Ogletree be reinstated to the practice of law.

II. Analysis and Decision

¶ 22. This Court has exclusive and inherent jurisdiction over matters pertaining to attorney discipline and is the final judge in such proceedings. James v. Miss. Bar , 962 So.2d 528, 532 (Miss. 2007) ; Shah v. Miss. Bar , 962 So.2d 514, 521 (Miss. 2007). The fundamental issue in a reinstatement case is "whether [the attorney] has rehabilitated himself in conduct and character since the suspension was imposed." In re Steele , 722 So.2d 662, 664 (Miss. 1998).

¶ 23. As noted above, Ogletree conceded that he had commingled client funds. This Court has held that "[t]here may be worse sins, but the ultimate wrong of a lawyer to his profession is to divert clients' and third parties' funds entrusted to him to an unauthorized use." Haimes v. Miss. Bar , 601 So.2d 851, 855 (Miss. 1992). Accordingly, "[a] lawyer guilty of such conduct exhibits a character trait totally at odds with the purposes, ideals, and objectives of our profession." Id.

¶ 24. This Court has granted petitions for reinstatement filed by attorneys under similar circumstances as Ogletree's. For instance, this Court considered the readmittance of John Allen Derivaux, Jr., an attorney whose legal practice was focused primarily in real estate. Derivaux v. Miss. Bar , 226 So.3d 97, 98 (Miss. 2016). As a part of his real-estate practice, Derivaux had a title-agency agreement with a title-insurance company which allowed him to write and sell title-insurance. The agreement was terminated in January 2009, but Derivaux continued to hold himself out to lenders and third parties as a title-insurance agent. Id. Derivaux admitted holding out funds at closings for title insurance that were never transferred from his trust account. Id. He also acknowledged altering forms used in his previous real estate transactions by "cutting" and "pasting" information in such a way that the old forms appeared authentic. Id. This Court disciplined Derivaux by suspending him from the practice of law for two years. Id. Like Ogletree, Derivaux's misconduct stemmed from personal matters. His wife died suddenly in 2010, and as a result, Derivaux became careless in his legal practice. Id. at 100. Like Ogletree, Derivaux participated in LJAP, which attested that Derivaux had fully complied with all requirements of the program, including one-on-one counseling sessions with a program-approved psychiatrist. Id. Upon his petition for reinstatement this Court found that Derivaux had exhibited both moral and professional rehabilitation and granted his petition for reinstatement. Id. at 101.

¶ 25. Likewise, this Court considered the readmission of attorney Kenneth A. Pels, Sr., who was suspended for the commingling of client funds. Miss. Bar v. Pels , 708 So.2d 1372 (Miss. 1998). Pels had placed settlement funds in an account used for both business operations and for personal expenses and then allowed the balance to drop below the amount needed to satisfy third-party claims against the client's funds. Id. at 1373. Like Ogletree, no evidence was adduced in Pels that the attorney had engaged in dishonesty, misrepresentation to his client, lying to the disciplinary authorities, or using his client's funds for personal purposes. Id. at 1375. Pels was disbarred in the District of Columbia, but when the matter came before this Court for reciprocal discipline, we found that, given the totality of the circumstances, the protection of the legal profession was best served by a thirty-day suspension. Id. at 1376.

¶ 26. Turning to the instant case, this Court finds that the evidence of Ogletree's rehabilitation rises at least to the level of what was presented in Derivaux and Pels . This Court previously acknowledged that, while Ogletree's conduct was "certainly careless and possibly negligent[,] ... he did not seem to have an intent to steal. Ogletree [had] no prior disciplinary history, nor did he lie to his clients or to disciplinary authorities." Ogletree , 226 So.3d at 85. Moreover, like Derivaux, this Court previously characterized Ogletree's mental state as a mitigating factor "that at least implicitly caused Ogletree's lapses in judgment." Id. at 87. While Derivaux, Pels, and Ogletree received varied punishments, each demonstrated that he possessed the requisite character to be reinstated to the practice of law.

¶ 27. The complaint tribunal found that, before Ogletree could be reinstated, he must be evaluated by LJAP and complete any treatment determined and recommended by LJAP. Further, he was ordered to provide proof that he had retained an accountant or bookkeeper to institute a system of banking, accounting, and bookkeeping in accordance with Rule 1.15 of the Mississippi Rules of Professional Conduct. Finally, Ogletree was required to notify all of his clients with active matters pending that he had been suspended from the practice of law within thirty days of this Court's entry of the opinion and final judgment.

¶ 28. While Ogletree has satisfied the first two requirements, he admitted that he did not file the necessary affidavits until April 5, 2017. Rule 12.2 states, "[i]n cases of suspension pending satisfaction of conditions precedent, reinstatement shall not be permitted except upon proof that the conditions have been met." However, Ogletree had no clients at the time of his suspension, nor was he involved in any lawsuits filed in Mississippi. Therefore, both Ogletree and the Bar contend that Ogletree's failure to timely file the affidavits should not be considered fatal to his petition. We agree.

¶ 29. After reviewing Ogletree's petition, the Bar's response, and all of the evidence in the record, this Court finds that Ogletree has met the jurisdictional requirements of Rule 12 and has provided clear and convincing evidence of his rehabilitation in conduct and character so as to convince a reasonable person that he has been reformed. Accordingly, this Court grants Ogletree's petition for reinstatement.

CONCLUSION

¶ 30. For the foregoing reasons, this Court grants Ogletree's petition for reinstatement to the practice of law.

¶ 31. PETITION OF ROBERT BRYAN OGLETREE FOR REINSTATEMENT TO THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI IS GRANTED.

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

      While Ogletree initially denied the Bar's allegations in his answer to the Bar's Formal Complaint, he admitted to the facts submitted by the Bar and fully acknowledged wrongdoing at the time of his discipline hearing. Further, he entered into a stipulation of facts in which he formally admitted to the alleged wrongdoing. See paragraph 8, infra.

      Letters were written by Edward Currie, Jr., Timothy Moore, Donnie Bell, Don McGraw, Jamie Priest, Patrick Rand, Jack Brenemen, Andrew Bishop, Chip Glaze, Stacy Ottnat, Katherine Lewis, and David Sullivan.