text:
    STATE of Louisiana v. Wilkes LAIRD.
    No. KA 09-831.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.
    Rehearing Denied April 7, 2010.

      James David Caldwell, District Attorney — Sixth Judicial District Court, Tallu-lah, LA, for Plaintiff/Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Wilkes Laird.
    Marty L. White, Terri R. Lacy, Asst. Attorney General, Baton Rouge, LA, for Plaintiff/Appellee, State of Louisiana.
    Wilkes Laird, Cottonport, LA, for Defendant/Appellant, Wilkes Laird.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 Defendant, Wilkes Laird, was convicted by a jury of attempted manslaughter, in violation of La. R.S. 14:27 and 14:31, and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. He was adjudicated a second felony offender, pursuant to La. R.S. 15:529.1, and sentenced to thirty years at hard labor, without the benefit of probation, parole, or suspension of sentence on the attempted manslaughter conviction, and to fifteen years at hard labor, with a fine of $1,000, on the firearm possession charge, with the sentences to run concurrently.

The brief filed by Defendant’s appointed counsel alleges the trial court erred by not allowing Defendant to waive his right to counsel and represent himself in this case. Defendant’s pro se brief alleges the evidence was insufficient to convict him, and the trial judge improperly denied his motion for recusal.

FACTS

Daniel Johnson and his wife, Crystal, separated periodically, and she sometimes stayed at Defendant’s home. On the evening of Monday, February 26, 2007, Daniel testified he spoke two or three times to Crystal’s friend, Trista Carroll, and Defendant’s nephew, Timmy Laird, on the telephone. Trista and Timmy began calling Daniel around 10:00 or 10:30 p.m. Trista told Daniel she would have Crystal write a letter telling Daniel what she wanted to do about their marriage. At one point, Daniel told Timmy on the telephone he would “bust his head.” He was concerned Timmy would give drugs to Crystal. Daniel went to Defendant’s home to get the letter around 11:40 p.m. He believed Crystal was living at her mother’s home in Pitkin.

|2As Daniel approached the driveway of Defendant’s home, he saw Crystal’s car turning into it. He passed the driveway to give Crystal time to drop off the letter and leave, and then he returned to Defendant’s home. When he turned into the driveway, he saw Crystal’s car there. He exited his vehicle and left the motor running with the door open.

Daniel knocked on the front door, finding it odd that no lights were on in the trailer. No one answered the door. He left the steps and tapped on the side of the trailer, and in a loud voice, said he had just come for the letter. Daniel returned to the front door and knocked again. As he turned to leave the steps again, he heard the door rattle as if it were being opened. He turned around and saw Defendant coming through the door with a rifle over his head.

Defendant “bashed through the glass.” As Daniel went around the corner of the trailer, he felt a bullet hit him in the upper chest, and he fell. He got up and ran to the back of the trailer, hearing more gunshots. As Daniel ran toward the next-door home of Defendant’s mother, he felt another bullet hit his lower back, and he rolled to the ground. When he looked up, he saw Defendant coming toward him. Although Defendant was still trying to pull the trigger, the gun would not fire. Defendant “bashed [Daniel] toward the forehead,” and Daniel grabbed the gun. The two men “tussled with the gun” as Daniel kept asking Defendant not to kill him. Daniel saw blood on Defendant’s forehead. Defendant finally stood up, helped Daniel get up, and walked Daniel to his car, all the time telling Daniel he ought to kill him. Daniel got in his car, and Defendant went toward the porch with the gun.

As Daniel backed out of the driveway, he heard someone screaming his name, and he saw Crystal, Timmy, Trista, and Defendant on the porch. He also saw Dustin laWillis at the bottom of the steps, returning from Daniel’s car. Daniel called the police as he drove away in his vehicle to inform them of what had happened, where he was going, what he was driving, and who shot him. Crystal also made a 911 call in which she reported shots being fired. Daniel received emergency treatment at Oakdale Community Hospital and was taken to Shreveport for emergency surgery to stop internal bleeding. While at Oakdale, Daniel identified Defendant as the person who had shot him. Dr. Peter Chu treated Daniel at the emergency room for gunshot wounds to his right chest wall and his lower back. Daniel’s drug test was positive for methamphetamine.

While Daniel was in Shreveport, he learned of an attempt to serve a restraining order on him at his mother’s house. Daniel had no knowledge of the restraining order when he knocked on the door of Defendant’s home.

About three days prior to the incident, Daniel had been at Defendant’s home talking to him about trading a truck. Defendant was cleaning a .22 rifle at the time; Daniel believed it was the same gun used to shoot him on February 26, 2007. On that occasion, Daniel asked Defendant if he was romantically involved with Crystal, and Defendant said no.

Trista Carroll’s testimony was similar. She said she, Crystal, Timmy, and Defendant were inside the trailer when they heard someone knock. She looked through the blinds and told Crystal it was Daniel. Crystal locked herself in the bathroom and would not talk to Daniel. Defendant jumped up and got a long gun from on top of some cabinets. Either Defendant or Daniel kicked the door, and Defendant went outside with the gun. She heard about three shots, and then | ,]Defendant came inside. Trista does not remember what happened after that, but she thinks she may have returned to Timmy’s house across the road.

According to Trista, they were using a lot of cocaine and pills at Defendant’s home that night — so much that she overdosed and woke up the next day in the hospital. She did not recall talking to Daniel on the telephone, but she believed Timmy talked to him. She could not say she was one hundred percent sure of the facts as she testified because of the drugs. Her testimony was not trustworthy by her own admission.

Scotty LaBorde, the Oakdale Chief of Police at the time of trial, worked as an Allen Parish Sheriffs Deputy on February 26, 2007. He received a call about shots being fired on Dovie Laird Road around 11:44 p.m. When he turned onto Dovie Laird Road, he met a vehicle with emergency flashers activated. He turned his vehicle around and stopped the other vehicle to find Crystal Johnson in it, crying and upset, with a .22 rifle on the passenger’s side. Crystal blurted she had just shot her husband. Deputy LaBorde had another deputy transport Crystal to the Oakdale Police Department, and he proceeded to Defendant’s residence, where he found Dusty Willis as the only person there.

Detective Chris Oakes testified that the Sheriffs Department’s investigation showed the glass from the trailer’s front storm door was missing, with a small amount of broken glass inside the trailer, and most of it on the exterior. The door seal was not affected as it would have been if someone had tried to damage it from the outside. Investigators also found a spent .22 shell casing on the front porch; Detective Oakes testified the casing would eject at the site where the shooter was located.

IsDetective Oakes also processed the gun involved in the incident for fingerprints. The gun, examined for latent prints, “lacked sufficient ridge detail for comparison purposes.” Fingerprint testing was not performed on a pocket knife or a lighter found in the yard of Defendant’s home.

On March 5, 2007, Defendant contacted Detective Mike Slaney of the Allen Parish Sheriffs Department. Detective Slaney had typed up a warrant for Defendant and had been to his residence looking for him.

The defense submitted testimony in support of the argument that Defendant was out of town at the time of the shooting. Cecil Laird, Defendant’s brother, testified Defendant called him around 8:00 p.m. on the night of the incident and asked Cecil to take him to Hineston, Louisiana, to help John Lewis do some mechanic work at John’s shop. Crystal was at Defendant’s home when Cecil arrived. Cecil and Defendant arrived in Hineston around 9:00 p.m. Cecil dropped off Defendant, and he saw no one at the home of John Lewis, where he left Defendant. The next day, Cecil heard of the shooting on Dovie Laird Road. While Cecil testified he learned from their mother that authorities were looking for Defendant, he also testified he had no knowledge Defendant was a suspect until three or four days later when he discussed the case with Detective Slaney.

Crystal Johnson testified she and Daniel were married at the time of Defendant’s trial, but she had left him about two weeks before this incident. At times Daniel was a good man, but at other times he would accuse her of doing “things that he would think of’ and be verbally, mentally, and physically abusive. On the night of the incident, Crystal said she was asleep in bed at Defendant’s home, and Dusty Willis was asleep in the back of the house. Someone woke her or she received a | (¡telephone call that her “old man was coming down there fixing to kill everybody.” Almost immediately, she heard Daniel’s vehicle in the driveway. She did not see Defendant at his home that night.

When asked whether she could recall what happened, Crystal replied:

Not really. You know, I hear people use stuff like that for an excuse, temporary — I don’t know, where you can’t remember, but some of my scenes are, you know, backwards, wishwashed, I don’t know what come first when I try to think about it.

She testified she recalled being on Sam Cloud Road when a police officer took the gun from her, and she recalls being at the police station. She does not know how the gun came into her possession. When asked whether she shot Daniel, Crystal replied:

You know, it doesn’t matter to me, it doesn’t matter who did it. You know, I sat and prayed days that he wouldn’t come back from a job, pray that he would be dead maybe I wouldn’t have to put up with this reaction from him anymore I could deal [sic]. If I didn’t get a call from the Acadian Ambulance and telling me he has had a motorcycle wreck, pretty close to death, I had to live through that and he is still here.

When asked again whether she shot her husband, Crystal invoked her Fifth Amendment privilege.

Although Crystal testified she called 911 when she heard Daniel’s vehicle approaching, the tape of the call indicates she reported shots being fired. Crystal explained “events were happening” by the time the 911 operator answered the call, and she thinks she recalls stating during the call that shots were fíred. The tape recording of the call shows Crystal said she had not been outside. While she invoked her Fifth Amendment privilege when asked if she hit Daniel in the head with the gun, she said she did not chase him around the trailer, knock him down, wrestle him, or break the windows in Daniel’s vehicle. She also invoked her Fifth Amendment rights when asked what she did when Daniel came to the door.

|7Patty Thompson was Crystal’s foster mother from the time Crystal was thirteen. On the night of the shooting, Thompson said Daniel called her house and left a message. Around 10:30 p.m., Thompson “called Crystal and told her that Daniel was on the rampage.” Crystal called Thompson from her cell phone, crying, around 11:30 p.m. Thompson did not know if Crystal said she shot Daniel, or Daniel had been shot; she thought Crystal said, “I shot Daniel.”

Daniel had frequently called and come by Thompson’s home during his separation from Crystal. According to Thompson, Crystal was more afraid of Daniel when they were separated than when they were together.

Defendant’s alibi witness, John Lewis, testified at the preliminary examination; when he did not appear at trial in response to a subpoena, the trial court allowed his testimony from the preliminary examination to be read to the jury. John testified that Cecil Laird brought Defendant to his home in Hineston, Louisiana, before dark on the Monday of the shooting, and Defendant stayed until the next day. In a statement given to Detective Slaney on March 6, 2007, however, John had repeatedly said Defendant came to his house on a weekend. John had also told Detective Slaney that Defendant always came to John’s home on his own, in a green van. But at the preliminary examination, John said he shook hands with Cecil Laird when he dropped off Defendant at John’s home.

Mark Lewis, John’s son and an officer with the Camp Beauregard Police, was also subpoenaed for trial and did not appear; thus, his testimony from the preliminary examination was admitted. Mark lives in a house adjacent to John’s shop. He testified he saw his father and Defendant at his father’s shop on either February 26 or 27, 2007, around 10:00 or 11:00 p.m., for about twenty or thirty minutes. Mark 18saw his father and Defendant again the next morning when he left for work around 5:00 a.m. Mark testified he worked a twelve-hour shift, and Defendant was gone when he returned from work. However, Mark believed that was on a Wednesday, whereas the shooting occurred on a Monday night or very early on a Tuesday morning.

DEFENDANT’S SELF-REPRESENTATION

At Defendant’s 72-hour hearing on March 6, 2007, the trial court asked him if he could afford an attorney; Defendant responded, “no ma’am.” In response to the trial court’s question, “are you asking the court to appoint you one,” Defendant responded, “yes, ma’am.” The trial court found Defendant was indigent and appointed counsel, Judi Abrusley, for him.

Approximately twenty-six pro se motions appear in the record, and the record references an additional pro se motion sent to the court “on July 25, 2007 for recusal of [the trial judge]; for consideration of previously filed pro se motions; and for self-representation.” At one point, the trial court denied Defendant’s pending pro se motions because he was represented by counsel at the time. This court granted Defendant’s writ application and remanded the motions for hearing pursuant to State v. Melon, 95-2209, p. 1 (La.9/22/95), 660 So.2d 466, 477, in which the supreme court held that the meaningful access to the courts guaranteed by the Louisiana Constitution requires the lower courts to “accept and consider filings from represented defendants in a preverdict context whenever doing so will not lead to confusion at trial.”

Defendant sent Ms. Abrusley a letter advising, “you are fired.” She filed a motion to withdraw as Defendant’s counsel, and the court appointed another attorney, Is John Demourelle, to represent Defendant on that date. For reasons discussed in a sidebar conference and not stated in the record, Mr. Demourelle withdrew as counsel for Defendant. The trial court then appointed Chad Guidry, who represented Defendant at trial.

After the trial, Defendant filed a “Motion for the firing of Attorney” in which he said he no longer needed Mr. Guidry as his attorney because of ineffective assistance at trial. Defendant withdrew that motion at the hearing of his motion for new trial and sentencing.

One of Defendant’s pro se motions was titled “Motion to Reconsideration [sic] the Denial of Previous Motions.” In that motion, Defendant erroneously stated he had not asked for counsel or requested to have counsel represent him. Defendant’s rather cryptic motion nonetheless asked “that he be allowed someone to fill-in because he is (not) able to read nor write ... [he] has enough asset to ligature, that he could hire his own counsel but choose, rather to go forwai’d as (Pro-Se).” [Sic],

Mr. Demourelle appeared on behalf of Defendant at a hearing on a number of motions, including a motion for self-representation. When the trial court asked Defendant if he wanted to represent himself, he replied, “Well, I need somebody to represent me or counsel to sit in here cause I can’t read and write the English language good.” Defendant then indicated he had an eighth grade education, had no legal training or education, and had done pipeline, carpentry, and sheet metal work. Although he can read the Bible through “the power of God,” he “can’t spell none of it,” he “can’t read the English language,” and he “can’t read a newspaper.”

Someone else wrote the pro se pleadings on Defendant’s behalf. When asked why he wanted to represent himself, Defendant replied, “Well cause — cause I just | indon’t — nobody else is trying to help me.... ” Defendant did not understand the dangers of representing himself or the concept of reasonable doubt. The trial court was not satisfied Defendant understood the consequences of waiving his right to counsel, and did not believe he had the ability to adequately present a defense. When the trial court denied Defendant’s motion for self-representation, Defendant asked, “Your Honor, could you appoint me somebody that will help me[?]”

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In his first pro se assignment of error, Defendant contends the evidence was insufficient to sustain his conviction because the State did not prove his presence at the scene of the shooting or that, if he was present, he was not acting in self-defense. “When issues are raised on appeal both as tó the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.” State v. Hearold, 603 So.2d 731, 734 (La.1992). Thus, we address Defendant’s first pro se assignment of error before the others.

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984). “In making such a determination, a reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

| nManslaughter is a homicide that would be first or second degree murder, and thus requires the specific intent to kill, but for “sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31; State v. Smith, 07-468 (La.App. 3 Cir. 10/31/07), 969 So.2d 694, writ denied, 07-2484 (La.5/16/08), 980 So.2d 707. “Sudden passion” and “heat of blood” are not elements of manslaughter, but rather, “they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed in the absence of these factors.” State v. Johnson, 06-623, p. 7 (La.App. 3 Cir. 11/2/06), 941 So.2d 696, 702, writ denied, 06-3024 (La.9/14/07), 963 So.2d 995. It stands to reason that attempted manslaughter is an attempted homicide with those mitigating factors. La. R.S. 14:27. See, e.g. State v. Brumfield, 04-552 (La.App. 5 Cir. 10/26/04), 887 So.2d 554. Defendant was charged with and tried for attempted second degree murder. The jury returned a verdict of “guilty of attempted manslaughter,” finding evidence of provocation giving rise to the mitigatory factors of “sudden passion” or “heat of blood.”

Defendant argues, however, that the evidence was insufficient to place him at the scene of the shooting. The victim, Daniel Johnson, testified Defendant shot him, hit him in the head with the rifle, and wrestled with him on the ground. Trista Carroll corroborated that version of the events, but admitted she was under the influence of drugs at the time. Defendant testified he was at John Lewis’ home in Hineston, Louisiana, at the time of the shooting. Although the rifle involved was found in Crystal Johnson’s possession, and Crystal told Deputy LaBorde she had shot her husband, Crystal also made a 911 call reporting shots being fired, as if someone other 112than she had fired them. She also told the 911 operator she had not been outside. The Lewises’ testimony was not clear about which day Defendant had been at John’s home, and did not clearly place him in Hineston at the time of the shooting. Thus, the jury could have reasonably found Crystal did not fire the shots and that Defendant did.

Defendant on appeal also alleges the State failed to prove that, if he was present at the shooting, he was not acting in self-defense. The only “weapon” found at the scene was a “silver metal folding knife that [Detective Oakes] found nineteen feet from the front porch in front of the residence at Dovie Laird Road.” The knife was not tested for fingerprints. Daniel Johnson testified he did not bring a weapon to the door of Defendant’s home. No further evidence or testimony was admitted concerning the knife or any other weapon. Defendant’s argument is without merit.

ASSIGNMENT OF ERROR (by Counsel)

Defendant alleges the trial court erred in refusing to allow him to waive his right to counsel and represent himself in his case. Defendant has a right to counsel, and to have counsel appointed if he cannot afford one, through the federal and state constitutions. U.S. Const.Am.end. VI, La. Const, art. 1, § 13. However, his choice “must be knowingly and intelligently made and the assertion of the right to self-representation must be clear and unequivocal.” State v. Francis, 07-373, p. 3 (La.App. 3 Cir. 10/3/07), 966 So.2d 1096, 1099.

The Francis court, citing other cases from this circuit, the Louisiana Supreme Court, and the United States Supreme Court, discussed the standard for determining whether a defendant has validly waived his right to counsel:

Before a defendant may waive his right to counsel, the trial court must determine whether the defendant’s | lswaiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper, 381 So.2d 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980). However, the record must establish that the accused knew what he was doing and that his choice was made “with eyes open.” Id. at 1298, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The Third Circuit Court of Appeal has repeatedly required the trial court meet the following requirements in determining whether a defendant has validly waived his right to counsel: first, determine a defendant’s literacy, competency, understanding and volition, i.e. was defendant’s waiver of counsel made voluntarily and intelligently; and second, warn the defendant of the dangers and disadvantages of self-representation, so that the record establishes that the defendant knew what he was doing. [State v.] Mitchell, 580 So.2d 1006 [(La.App. 3 Cir.1991), writ denied, 613 So.2d 969 (La.1993)]; [State v.] Smith, 479 So.2d 1062 [(La.App. 3 Cir.1985)]; State v. Adams, 526 So.2d 867 (La.App. 3 Cir.1988); State v. Sepulvado, 549 So.2d 928 (La.App. 3 Cir.1989); and State v. Bourgeois, 541 So.2d 926 (La.App. 3 Cir.1989), writ denied, 572 So.2d 85 (La.1991).
State v. Hayes, 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, 685-86. See also State v. Johnson, 06-937 (La.App. 3 Cir. 12/6/06), 944 So.2d 864, and State v. Whatley, 03-655 (La.App. 3 Cir. 11/5/03), 858 So.2d 751.
Id.

At Defendant’s first appearance before the trial court, he said he was indigent and asked the court to appoint a lawyer to represent him. Defendant made numerous pro se filings (apparently including a motion for self-representation), criticized the | ^performance of his attorneys and “fired” his first attorney, but never specifically objected to having court-appointed counsel.

Indeed, Defendant’s “Motion to Reconsideration the Denial of Previous Motions” requested “that he be allowed someone to fill-in because he is (not) able to read nor write.” Defendant’s pro se “Motion to Appear as Co-Counsel Pro Se” acknowledged he was represented by the Indigent Defender Board and asked the court “to grant him permission to appear pro se as co-counsel with the Indigent Defenders Office.”

Defendant did not make a clear and unequivocal waiver of his right to counsel at the hearing of his motion for self-representation. He told the trial court that he needed someone to represent him because he could not read or write. Likewise, at the hearing of Mr. Demourelle’s Motion to Withdraw, Defendant was not clear and unequivocal when discussing the issue of self-representation. When the trial court appointed Mr. Guidry, this exchange occurred:

[Defendant]: I don’t need an attorney, Your Honor. I will represent myself in this case.
The Court: No, I have already ruled that you can’t represent yourself. [Defendant]: Okay. Well, I want to represent myself. I want an attorney to help me. I don’t need somebody that don’t want to help me. I have got a serious charge ... and I would like to represent myself because I can’t find an attorney — you ain’t appointed me an attorney yet that would help me in my matter. So, ma’am, I would just be better by myself. I would be better by myself. I want to go to trial as soon as possible and represent myself. I have that right.
The Court: I have already ruled that you cannot represent yourself. So, I am appointing Mr. Guidry to represent you in this matter. And this is Mr. Guidry.
| ^[Defendant]: Okay. If he represents me fully, yes, ma’am. But, if he don’t I’m gonna go to trial with myself cause I — _

This situation is similar to that in State v. Hypolite, 04-1658 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275, writ denied, 06-618 (La.9/22/06), 937 So.2d 381. This court noted the defendant’s attempt to obtain new counsel was not an unequivocal request to represent himself; it was merely a request for substitute counsel because the defendant was unhappy with his court-appointed attorney.

Here, Defendant’s testimony, filings, and actions indicate he in fact wants court-appointed counsel, but wants to be able to discharge his counsel and obtain new representation when his attorney, in his estimation, is not properly defending him. Defendant is not entitled to counsel of his choice; rather, he “only has the right under the federal constitution to effective i*epresentation.” State v. Reeves, 06-2419, p. 37 (La.5/5/09), 11 So.3d 1031, 1056, cert. denied, — U.S. — , 130 S.Ct. 637, — L.Ed.2d — (2009). Defendant has set forth no grounds to show ineffective representation, and he will have the opportunity to seek post-conviction relief on the ground of ineffective representation if he so chooses. La.Code Crim.P. art. 930.3. Accordingly, we find the trial court did not err in refusing to allow Defendant to waive his right to counsel and represent himself at trial.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues the trial court erroneously denied his motion to recuse the trial judge. He claims she once represented him in a prior proceeding before she became a district judge. He allegedly told her she was very beautiful and made “an explicit sexual gesture” toward her. The trial judge supposedly told her husband | mabout the incident, and he confronted Defendant’s brother. Defendant offers no support of this allegation. He alleges the trial judge’s prejudice against him (because of the alleged incident) led to her allowing Daniel to testify he was not served with the restraining order prior to the shooting, when she had presided over the hearing and issued the restraining order.

The trial judge did not have a hearing on the motion, but filed an order stating:

IT IS FURTHER ORDERED that the motion to recuse [the trial judge] on the grounds that the defendant made “sexual passes” at her while she was his appointed counsel is hereby denied in that a check of the records of the 33rd Judicial Court shows that [the trial judge] has never been appointed to represent the defendant....

While Defendant offered no support for his allegations, the trial judge performed a records check and offered the lack of her appointment as Defendant’s prior counsel in support of her order. Thus, the trial judge properly denied the motion to recuse and this assignment of error is without merit.

DECREE

Defendant’s convictions are affirmed.

AFFIRMED.

      . Defendant was previously convicted of simple burglary and sentenced to ten years at hard labor. He was on parole at the time of the shooting in this case.

      . Although the record does not contain Defendant's motion to recuse, the trial judge's Order of July 27, 2007 references "the pro se motion sent to this court on July 25, 2007, for recusal of [the trial judge]; for consideration of previously filed pro se motions; and for self-representation. ’'


source: Caselaw Access Project

author: SAUNDERS, Judge. GENOVESE, J.,

license: Public Domain

text:
    Calogera RAIMONDO v. Kristin HAYES, et al.
    No. 09-955.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 17, 2010.

      Mark Reese Pharr, III, Thomas M. Long, Galloway, Johnson, Tompkins, Burr & Smith, Lafayette, LA, for Defendants/Appellees, Kristin Hayes, DL Peterson Trust, RGIS Inventory Specialists, Discover Property and Casualty Insurance Company.
    Derrick G. Earles, Brian M. Caubar-reaux, Emily G. Meche, Brian Caubar-reaux & Associates, Marksville, LA, for Plaintiff/Appellant, Calogera Raimondo.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| ,This case involves a single assignment of error regarding the general damages awarded by a jury to the plaintiff. The plaintiff contends that the general damages were so low as to be an abuse of discretion by the jury.

We find that the jury’s award of $17,500.00 in general damages to the plaintiff who has suffered four disc injuries with no nerve root impingement or neurological deficits, and who will have to deal with chronic pain for the remainder of her life, is abusively low. Plaintiff is a poor surgical and epidural steroid injection candidate, thus, her only option is conservative treatment. We affirm and amend the judgment to reflect that plaintiff is entitled to $65,000.00 in general damages, as that is the lowest amount within the discretion afforded to the jury.

FACTS AND PROCEDURAL HISTORY:

On September 19, 2007, Calogera Raim-ondo (Raimondo), a thirty-four year-old office assistant with AT & T, was traveling from Marksville, Louisiana, to Lafayette, Louisiana, for a meeting with the Lafayette AT & T call center where she was to be transferred. Raimondo was traveling south on Evangeline Thruway in Lafayette when she was rear-ended by Kristin Hayes (Hayes). Hayes was a twenty-six year-old employee of RGIS Inventory Specialists that was also traveling south on Evangeline Thruway in a company vehicle returning to RGIS’s corporate offices located on Kaliste Saloom Road in Lafayette. Liability was stipulated by the defendants.

Raimondo initially refused medical treatment and was not transported to any urgent care facility. Rather, she saw Dr. Newell Gauthier a few days after the accident, complaining of pain in her neck and back. Dr. Gauthier did not order any diagnostic testing, but diagnosed Raimon-do with a muscle strain and prescribed pain | .¡medication.

Next, Raimondo saw Dr. Louis Blanda, an orthopaedic surgeon, again complaining of pain in her neck and back and also complaining of numbness in her toes and right leg, and of knee pain. Dr. Blanda prescribed Celebrex and ordered an X-Ray and an MRI. The X-Ray did not show any damage to any of Raimondo’s bones and showed degenerative changes consistent with someone of her age. The MRI revealed disc injuries at levels L4-5, L5-Sl, T6-7, and T8-9, without nerve impingement or neurological deficits at those levels. Dr. Blanda did not think that Raimondo was a good candidate for epidural steroid injections or surgery because she had preexisting asthma and was on blood anticoagulants.

Instead, Dr. Blanda chose to treat Raim-ondo conservatively by prescribing physical therapy, a TENS unit, a home stretching program, muscle relaxers, and pain medications. While this treatment was successful in having Raimondo reach the maximum medical improvement possible, given her preexisting conditions, Dr. Blan-da testified that she would suffer chronic pain for the rest of her life.

Raimondo filed suit against Hayes, DL Peterson Trust, RGIS Inventory Specialists, and Discover Property and Casualty Insurance Company. A jury trial was held on February 2, 2009. Judgment was rendered awarding Raimondo $7,000.00 for pain and suffering, both physical and mental, $500.00 for loss of enjoyment of life, $10,000.00 for physical injury or disability suffered, $9,055.46 in past medical expenses, and $14,640.00 in future medical expenses, for a total of $41,195.46. Raim-ondo appealed this judgment.

DISCUSSION OF THE MERITS:

In her sole assignment of error, Raim-ondo contends that the jury abused its | ..discretion by inadequately awarding her the sum of $7,000.00 for pain and suffering, both physical and mental, the sum of $500 for loss of enjoyment of life, and the sum of $10,000.00 in physical injury or disability suffered, given the evidence and jurisprudence support a much higher award for these items respectively. We agree with Raimondo’s contention.

The standard of review applicable for a jury award in general damages is well settled. Our supreme court, in Wainwright v. Fontenot, 00-492, p. 6 (La.10/17/00), 774 So.2d 70, 74 (citations omitted), stated the following:

The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.”
Moreover, before a Court of Appeal can disturb an award made by a [fact-finder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.

In the case before us, due directly to the automobile accident, Raimondo suffered four disc injuries at levels L4-5, L5-S1, T6-7, and T8-9. With regard to Raimon-do’s disc injuries at T6-7 and T8-9, Dr. Louis Blanda, Raimondo’s treating ortho-paedic surgeon, testified as follows:

Q What can you do for her with regard to her mid back?
A Well, bracing sometimes is something that would help. Generally, it’s more of pain management than anything. She’s — in the mid back, the disc at that level is rarely operated on, even in a healthy person.
LQ Now, why is that?
A You almost have to have potential paralysis or severe pressure on the spinal cord because to remove a disc at that level, most of the time you have to go through the chest. You have to go anteriorly and to move away, move on the side[,] the lungs and the major vessels, particularly on somebody that has lung problems already you’re on anticoagulants and blood thinners, that would be a very risky operation. And it’s just not something she could tolerate.
Q So her option surgically is basically nil[,] and she would, I mean she just has to live with the pain that she has?
A Correct.
Q What kind of problems with this bulging disc and this herniated disc in a thoracic spine cause her throughout the course of her life?
A Well, it’s mainly pain, pain along the spine, some radiating pain around her ribs. Unfortunately, if she has another injury and it gets worse, then it could cause some major problems with damage to the spinal cord. So that’s why she’s really got to take it easy and not do any heavy lifting or anything of that sort.
Q And this is permanent restrictions [sic] for her?
A Yes.

Dr. Blanda went on to testify about Raimondo’s disc injuries at L4-5 and L5-Sl. The following is his testimony regarding these injuries:

Q Now, with regard to her lower back, her lumbar spine, these are the two lowest levels in the spine, above the sacrum or above the pelvis, correct?
A Yes, sir. It’s right around the waistline. I guess she has some discogenic problems here. I think some of it’s degenerative. I think is was aggravated by the trauma. And the same indications hold, you know, the reason for surgery primarily is neurological or chronic pain. But again, the risk of surgery far outweighs any benefits that she might get with it.
Q So did you just, tough luck, she has to live with this?
A Yes.

| fiGiven Dr. Blanda’s testimony above, it is clear that Raimondo will have to suffer chronic pain for the rest of her life. Further, it is clear that Raimondo will have to be wary of lifting heavy objects, as an aggravation of her now present hernia-tions, especially those in the thoracic spine, could potentially present her with a choice of either dealing with spinal cord damage or undergoing life endangering surgeries.

Hayes states in brief that Dr. Blanda found that surgery was not necessary in this case. This is not accurate. Dr. Blan-da’s testimony, cited above, indicates that surgery was not appropriate due to her preexisting conditions. This is significantly different from what Hayes contends, i.e., that surgery was not necessary.

Hayes also states in brief that Dr. Blan-da concluded that physical therapy was successful in treating her condition. As to the “success” of physical therapy, Dr. Blanda testified to the following:

Q You were asked if physical therapy, if it worked. Because physical therapy works, it’s there to give pain relief, correct?
A Right.
Q Okay. Or to lessen someone’s pain?
A Yes.
Q That physical therapy won’t cure the disc herniations that she has?
A No. That’s something that[’s] going to be permanent.
Q Okay. So the talk about someone needing to be available for her for treatment, people in times of their life, bend or do, you know, bend the wrong way or do something[,] and it’s going to exaggerate the problem that she has at some point?
A Yes.

It is clear from this testimony that even if physical therapy was successful, as was the case with Raimondo, she still would continue to have chronic pain. Thus, |fiHayes’ statement that Raimondo’s injuries were successfully treated via physical therapy does not fully encapsulate Raim-ondo’s situation regarding her mid and lower back pain.

Hayes also argues in brief that the jury’s finding regarding quantum was within its discretion because Raimondo testified that, as a result of physical therapy, her neck pain had resolved by May of 2008. While this may be true, Raimondo’s neck, or cervical area of the spine, is not the location where Raimondo suffered any disc injuries. Her injuries were to the discs located in the thoracic, lumbar and sciatic areas of the spine. Thus, Raimon-do’s testimony that her neck pain completely resolved by May of 2008 is not relevant to the pain she continues to suffer chronically in her mid and lower back. Raimondo went on the testify under cross examination to the following:

Q And when we met in December, I had asked about how — on a scale of one (1) to ten (10), what did you rate your back? And you told me a two (2), right?
A At the time, yes.
Q At that time. Has that changed since we met in December?
A It fluctuates. Yes, it constantly changes.

This testimony is consistent with that of Dr. Blanda. Raimondo will continue to have some good days and some bad days when referencing the pain caused by her disc injuries for the rest of her life.

Accordingly, after a thorough review of the record, we find that the jury abused its discretion in finding that Raimondo was entitled to merely $17,500.00 in general damages. While Raimondo’s disc injuries did not include any neurological deficits, it is clear that she will continue to suffer chronic pain for the remainder of 17her life. Given that Raimondo was in her mid-thirties when this accident occurred, we find that the lowest amount reasonably within the discretion of the jury for her general damages is $65,000.00. Thus, we amend the judgment in favor of Raimondo to reflect this amount.

CONCLUSION:

Raimondo raised one assignment of error, that the jury abused its discretion by inadequately awarding her a total of $17,500.00 for pain and suffering, both physical and mental, for her loss of enjoyment of life, and for her physical injury or disability suffered given the evidence. We agree with Raimondo and amend her general damages award to the lowest amount reasonably within the discretion of the jury which we find to be $65,000.00. All costs of this appeal are to be paid by Hayes.

AFFIRMED, AS AMENDED.

THIBODEAUX, Chief Judge, concurs in the result.

GENOVESE, J., concurs in the result and assigns written reasons.

GENOVESE, J.,

concurs in the result and assigns the following reasons:

hi agree with the majority that the jury abused its discretion by inadequately awarding the Plaintiff a total of $17,500.00 for pain and suffering, loss of enjoyment of life, and physical injury/disability as a result of her September 19, 2007 automobile accident. However, in my view, I am opposed to an “in globo” award. I find it legally necessary to specifically itemize the increase in damages for each category of damages with a citation of legal authority in support thereof.


author: LAMAR, Justice, PIERCE, Justice,

text:
    In the Matter of the ESTATE OF Howard GRIFFITH, Deceased: Garland Griffith v. Jimmy GRIFFITH and Jerry Griffith.
    No. 2008-IA-01557-SCT.
    Supreme Court of Mississippi.
    March 25, 2010.

      Jay L. Jernigan, Hattiesburg, attorney for appellant.
    F. Kirk Nelson, Jackson, attorney for appellees.
   LAMAR, Justice,

for the Court:

¶ 1. In this will contest, the petitioner appeals from the chancellor’s order rejecting the probate of the decedent’s alleged last will and testament. At issue is whether the last will and testament was properly executed under Mississippi Code Section 91-5-1 (Rev.2004), when the two attesting witnesses claim they were unaware that the document they signed was a will. We affirm the trial court and find that attesting witnesses to a will must have knowledge of the purpose of their attestation.

FACTS

¶2. On February 27, 2006, Garland L. Griffith filed a petition to probate the purported last will of his brother, Howard Griffith. A copy of the purported, nonho-lographic will was attached to the petition. Under the will, Howard devised and bequeathed unto Garland his “home and its furnishings and furniture, together with the five acres, more or less, upon which it is situated ... cash, bank accounts and certificates of deposit, and ... [a] Maxima automobile, [a] truck, [a] Jeep automobile, [a] Ford 2000 tractor and [a] lawn mower - [and] two mobile homes and all furnishings and contents situated thereinf.]” Relevant to these proceedings, Howard also devised and bequeathed to his sons, Jimmy L. Griffith and Jerry H. Griffith (“Contestants”), “that portion of [his] property upon which Griffith’s Barber Shop is located ... and all of [the] contents, fixtures and furniture in said business .... [and the] rest remainder and residue of [his] estate[.]”

¶ 3. The purported will bears the signature of Howard Griffith and the signatures of Eric M. Scott and Patrick O. Bell as witnesses. Following the signatures of the witnesses, the will contains a “certificate” providing that:

We, each of the subscribing witnesses to the Last Will and Testament of Howard Griffith, do hereby certify that said instrument was signed by the said Howard Griffith in our presence and in the presence of each of us, and that the said Howard Griffith declared the same to be his Last Will and Testament in the presence of each of us and that each of us signed as subscribing witnesses to said Last Will and Testament at the special request of Howard Griffith in his presence and in the presence of each other.

This “certificate” also bears the signatures of Eric M. Scott and Patrick O. Bell.

¶ 4. Additionally, the will contains an “affidavit of subscribing witnesses” which provides:

that the said Howard Griffith, signed, published, and declared the aforesaid instrument to be his Last Will and Testament on July 6, 2005 in the presence of said Affiants ... that the undersigned Affiants subscribed and attested said instrument as witnesses to the signature and publication thereof, at the special request of Howard Griffith, in his presence and in the presence of each other.

The affidavit concludes with the signatures and addresses of Eric M. Scott and Patrick O. Bell. The affidavit also contains the signature of the notary public, Judy C. Warren Lofton.

¶ 5. The Contestants filed a caveat against probate, alleging that their father “died without leaving a valid will, in that the purported will is the result of undue influence and is not supported by sworn witnesses.”

¶ 6. Witnesses Scott and Bell filed affidavits (“2006 affidavits”), in which each asserted that he had not witnessed a will, but a power of attorney. Scott and Bell also claimed in their respective affidavits that they had never signed an “affidavit of subscribing witnesses.”

¶ 7. Thereafter, the chancellor conducted a hearing to determine whether the will was duly executed. The chancellor heard testimony from Lofton, Scott, and Bell.

¶ 8. Lofton testified as to her normal procedure in notarizing a document, because she did not remember notarizing this particular document. Lofton testified that she normally requests identification from the parties; the parties sign the particular document; and she then notarizes the signatures. Lofton identified her signature on the will.

¶ 9. Scott testified that Elaine Coleman, Howard’s niece, asked him to witness Howard’s signature on “some documents.” Scott agreed and met Howard, Garland, and Bell at a local bank. Scott testified that he never spoke with Howard at the bank other than a greeting. Scott testified that no one informed him what he was signing, and that the notary directed him where to sign. Scott further testified that his 2006 affidavit was incorrect, since he was unaware of what he was signing when at the bank. He stated that he did not read any of the documents prior to signing them, and that he would not have signed the documents had he known they constituted a will.

¶ 10. Bell testified that in July 2005 he worked at the Griffith Barber Shop. Bell further testified that Howard asked him to “witness something,” and he agreed. Bell stated that he rode with Howard and Garland to the bank, and the notary directed him where to sign. Bell testified that he did not read the documents at the time he signed them, and that no one informed him that he was signing a will. He also testified that he would not have signed the documents had he known they constituted a will.

¶ 11. At the close of the hearing, the Contestants requested that the chancellor render a judgment in their favor, arguing there was no genuine issue regarding the publication of the will to the witnesses. The chancellor entered an order rejecting the probate of the will based on the testimony of Scott and Bell. From this order, Garland appeals.

DISCUSSION

I. Whether the chancellor committed manifest error in his findings of fact.

¶ 12. Following the hearing, the chancellor found that Scott and Bell were unaware that they had witnessed Howard’s purported last will and testament. This Court has ruled that “the testimony of attesting witnesses denying or impeaching the execution of the will is to be considered and may be sufficient in some cases to prevent probate, [but it is] to be viewed with caution and suspicion and it is usually entitled to little credence.” Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806, 809 (1938). Further, if either or both attesting witnesses deny the execution, then the proponents may introduce secondary evidence of the execution. Id.

¶ 13. Bell’s and Scott’s testimony was the only evidence, other than the testimony of the notary public, submitted by the parties at the hearing. The proponent of the will, Garland, presented only the testimony of Lofton and failed to intro-duee any witness or other evidence showing that Bell and Scott had knowledge of the purpose of the attestation. The chancellor had before him conflicting evidence concerning whether the witnesses had knowledge that they were witnessing Howard’s will, namely: (1) the will, which included the “certificate” and “affidavit of subscribing witnesses”; (2) Scott’s and Bell’s 2006 affidavits; and (3) Scott’s and Bell’s testimony at the hearing. This presented a question of fact for the court, and the chancellor resolved the conflict by ruling that the hearing testimony was the most credible. We have ruled that “when the trial judge sits as the finder of fact, he has the sole authority for determining the credibility of witnesses.” Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994). Further, we reiterate that our trial courts are entitled to deferential review in matters involving questions of fact. Id. Because this Court reviews a chancellor’s findings of fact under a standard of manifest error, we cannot say that the chancellor erred. Goode v. Village of Woodgreen Homeowners Ass’n, 662 So.2d 1064, 1070-71 (Miss.1995) (ruling that the Court applies the standard of manifest error to findings of fact in a will contest). Applying the appropriate standard of review, we fail to see how the chancellor manifestly erred in considering and finding sufficient the testimony of Scott and Bell. We additionally note that this ease does not involve witnesses who cannot “recall the manner” of signing the purported will (see dissent at ¶ 36); this case involves two witnesses who testified that they had no knowledge of what they were signing, which we find to be a requirement, as explained infra.

II. Whether attesting witnesses to a will must have knowledge of the purpose of their attestation.

¶ 14. This Court also must determine whether the chancellor was correct in ruling that attesting witnesses to a will must have knowledge of the purpose of them attestation. In other words, this Court must decide whether the execution of the will complied with Mississippi Code Section 91-5-1, when the two attesting witnesses were unaware that the document they signed was a will. This Court employs a de novo standard of review to a chancellor’s legal findings in a will contest. In re Last Will & Testament of Carney, 758 So.2d 1017, 1020 (Miss.2000).

¶ 15. Section 91-5-1 governs the execution of a last will and testament. Miss. Code Ann. § 91-5-1 (Rev.2004). It provides, in relevant part, that:

[A] last will and testament, or codicil, [must] be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly mitten and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

Id. (emphasis added). Section 91-5-1 does not explicitly address any knowledge requirement on behalf of the attesting witnesses. However, we find that our case-law addressing attestation and publication does address it and is determinative of the case subjudice.

¶ 16. Mississippi Code Section 91-5-1 provides that a will must be “attested” by at least two witnesses. Id. This Court examined the meaning of this statutory term in Batchelor v. Powers’ Estate, 348 So.2d 776, 776-77 (Miss.1977). The Court held that “ ‘attestation’ includes not only the mental act of observation, but also includes the manual one of subscription.” Id. at 777. In other words, not only must the witness observe the testator, he must also affix his signature to the document. In 1921, this Court discussed the requirement and purpose of attestation in Maxwell v. Lake, 127 Miss. 107, 88 So. 326, 328 (1921). The Court stated:

The word “attested” is broader in meaning than the word “subscribed,” and it was the purpose of the statute in requiring two witnesses to attest the will to have more than the mere signatures of two persons to the will. It was the duty of the attesting witnesses, under the statute, to observe and see that the will was executed by the testator, and, that he had capacity to make a will .... Witnesses are not only to identify the paper which has been signed by the testator, but they are to prove the execution of the will....

Maxwell, 88 So. at 328 (emphasis added). The Court further explained attestation in In re Will and Estate of Jefferson:

[Mississippi caselaw] abundantly hold[s] that the purpose of signing by the attesting witnesses in the presence of the testator is that the testator will know that the witnesses are attesting the testator’s will and not another document; that the ivitnesses will know the same; these reasons to avoid imposition of fraud on either the testator or the witnesses by substitution of another will in place of that signed by the testator; and that the witnesses will be reasonably satisfied that the testator is of sound and disposing mind and capable of making a will.

In re Will & Estate of Jefferson v. Moore, 349 So.2d 1032, 1036 (Miss.1977) (emphasis added). Furthermore, this Court has provided the following warning regarding attesting witnesses:

[I]t is our hope that subscribing witnesses be advised by counsel of their corresponding duty to that testator. A witness to a will should be some person acquainted with the testator, and having no interest, direct or indirect, as a beneficiary. He should be impressed with the necessity of specifically observing the testator and other person sign the will. He shoidd be impressed with the necessity of being satisfied that the testator understands it is a will, and that it expresses the wishes of the testator. Finally, the will should be signed in privacy, with no other persons present than the testator, his attorney and the witnesses, unless required by unusual and compelling circumstances. The presence of some persons who could cast a cloud or suspicion on this solemn occasion should be scrupulously avoided. In most of the will contest cases which come before this Court, we find one or more of these simple precautions have been ignored.

Webster v. Kennebrew, 443 So.2d 850, 859 (Miss.1983).

¶ 17. In accord with our previous cases of Maxwell, Jefferson, and Kennebrew, we find that an attesting witness must have some knowledge that the document being signed is, in fact, the testator’s last will and testament. Therefore, Scott and Bell were not “attesting” witnesses under Section 91-5-1 but merely subscribing witnesses. Curiously, the dissent finds that mere subscription is sufficient to satisfy the requirement of attestation without any citation in support thereof. Because Scott and Bell had no knowledge of the nature of the document, we agree with the trial court that the will was not properly executed. However, our analysis of attestation does not end the inquiry. Had the •will been expressly or constructively published to Scott and Bell, this issue would be moot. As will be explained infra, publication coincides with the statute’s explicit requirement of “attesting” witnesses.

¶ 18. While the statute does not define the term “publication,” this Court has often discussed publication when addressing the requirements of Section 91-5-1 and its statutory precursors. As early as 1856, contestants to a nonholographie will argued that it was not published in conformity with the statute. Watson v. Pipes, 32 Miss. 451, 1856 WL 4030, *11 (1856) (reviewing precursor to Section 91-5-1 that was devoid of the term “publication”). The Court found that the attesting witnesses were summoned at the direction of the testator and knew “the purpose for which their attendance was required.” Id. at *10 (emphasis added). Further, once the witnesses were assembled in the testator’s presence, the drafter of the will proclaimed the document to be the testator’s will. Id. The Court held the evidence was “sufficient to authorize the presumption, that there was due and legal publication of the will, although the evidence may not have directly established a formal and express publication.” Id. at *11. The Court defined publication as “the act or acts of the party, by which he manifests that it is his intention to give effects to the paper, as his last will and testament.” Id. The Court further explained that “[t]he statute of this State ... was copied, literally, from the statute of Virginia, which was taken from the Statute of 29 Car. 2, Ch. 3. And it is settled, by authority, in England, that the formal publication of a will is unnecessary.” Id. (emphasis added).

¶ 19. In 1921, this Court found there was no requirement for formal publication “if the witnesses see the testator sign the will and then sign as witnesses to that act, with an understanding of the testator’s purpose in so doing [.]” Maxwell v. Lake, 127 Miss. 107, 88 So. 326, 328 (1921) (emphasis added). Furthermore, this Court repeatedly has reaffirmed that some form of publication is required. See generally Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927); see also Wilson v. Polite, 218 So.2d 843, 850 (Miss.1969) (ruling that nonholographie wills must have attesting witnesses whose testimony evidences the “instrument was signed, published, and declared by the testator, in their presence, as his or her last will and testament”); Smith v. Smith, 185 Miss. 702, 188 So. 305 (1939) (finding a jury issue regarding attestation where “[t]here was no testimony that the alleged testator in any manner personally declared to [the witness] that the instrument was his will at the time of its execution or that he ever requested him to attest it as such”); Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806, 810 (Miss.1938) (finding testatrix duly executed her will when she “signed same and declared it to be her last will and testament in the presence of said subscribing witnesses, who signed their names thereto as subscribing witnesses in the presence of the testator and at her request”). In Green v. Pearson, we found that publication may be accomplished through construction, noting that: “[i]t is sufficient that enough is said and done in the presence and with the knowledge of the testator to make the witnesses understand that he desires them to know that the paper is his mil, and they are to be the witnesses thereto.” Green, 145 Miss. 23, 110 So. 862, 864 (1927) (emphasis added).

¶20. However, we note that the 1929 case of Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 498-99 (1929), overruled on other grounds in part by Bearden v. Gibson, 215 Miss. 218, 60 So.2d 655 (1952), contains language that expressly contradicts this line of previously noted cases. In Tyson, this Court ruled that:

When publication in the presence of the witnesses is not required, as it is not in our state, then it follows that it is not essential to the validity of the will, when it has been signed by the testator to their personal knowledge, that the witnesses should know its contents, or that they should know that it is a will.

Tyson, 122 So. at 498 (emphasis added). Therefore, to resolve this dichotomy that exists in our easelaw concerning publication, we expressly overrule Tyson ’s pronouncement regarding publication and reaffirm our rulings in Watson, Maxicell, Green, Smith, Wilson, and Warren. We find that Mississippi Code Section 91-5-1 requires that attesting witnesses to a will know the purpose of their attestation, even when the testator signs the will in their presence. As noted in our prior cases, either formal or constructive publication will ensure that this knowledge is imparted to the attesting witnesses.

CONCLUSION

¶ 21. We hold that the purported will was not duly executed, as the witnesses had no knowledge that the document they signed was the decedent’s last will and testament. We affirm the lower court’s order rejecting the probate of Howard Griffith’s purported will.

¶ 22. AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON AND RANDOLPH, JJ., CONCUR. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. KITCHENS, J., NOT PARTICIPATING.

PIERCE, Justice,

dissenting:

¶ 23. This Court was emphatically clear when it said:

It is not the policy of the law to permit the defeat of the probate of a will because of the failure of the memory of an attesting witness. The right of a testator to make a will and devise his property as he pleases should not, in the execution of that right and the vesting of the property according to the desire of the testator, be conditioned upon any such fact that might so easily thwart and evade all of the intentions and purposes of the testator in regard to his property, and this, regardless of his thorough compliance in fact with the statutes for the making of wills. In other words, if the policy of the law were otherwise, it would be quite possible for an heir who had been disinherited to fraudulently procure one of the subscribing witnesses to a will to testify that he had not subscribed the will as an attesting witness and thereby thwart the attempt of the testator to devise his property. On account of this danger, it is established law that while the testimony of attesting witnesses denying or impeaching the execution of the will is to be considered and may be sufficient in some cases to prevent probate, it is, nevertheless, to be viewed with caution and suspicion and it is usually entitled to little credence, and a proponent, obliged to call an attesting witness as a witness, is not bound by his testimony.

Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806, 809 (Miss.1938) (emphasis added).

¶ 24. Because of this, and with great respect for my learned colleagues in the majority, I must dissent from today’s opinion. While the majority discusses the supposed lack of knowledge possessed by the two witnesses to the will, it overlooks the constructive publication present in this matter. I agree that either express or constructive publication of a will to the attesting witnesses is required for valid execution of that will, and that Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 498-99 (1929), must be overruled where it holds otherwise. However, I disagree that constructive publication is not present in the matter before us today. Heeding this Court’s warning in Warren, and considering the very inconsistent testimony of the two witnesses to the will at trial, I would find that these witnesses understood that the instrument they witnessed at the People’s Bank was Howard Griffith’s Last Will and Testament at the time they signed it.

¶ 25. This Court has long defined publication as “the act or acts of the party, by which he manifests that it is his intention to give effect to the paper, as his last will and testament.” Watson v. Lewis Pipes, 32 Miss. 451, 1856 WL 4030, *11 (1856). Furthermore, we have said, “the formal publication of a will is unnecessary. A will may be good, under the Statute of Frauds, without any words of the testator declaratory of the nature of the instrument or any formal recognition of it, or allusion to it.” Id. We also have said, “publication and attestation of a will may be by construction. One may speak by his actions as well as by word of mouth.” Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927). We further explained that “[i]t is sufficient that enough is said and done in the presence and with the knowledge of the testator to make the witnesses understand that he desires them to know that the paper is his will, and that they are to be the witnesses thereto.” Id. (citing 28 RC.L. p. 127, § 82).

¶ 26. In Maxwell v. Lake, 127 Miss. 107, 88 So. 326, 328 (1921), we said:

[I]f [the testator] does not sign [the will] in [the witnesses’] presence, there must be something to call the witnesses’ attention to the fact that it is his will, or that it is his signature, or something to show to the witnesses the purpose for which the signing is requested. The court does not require any particular form of words to be used by the testator, but he must indicate in some way so as to inform the witnesses as to the purpose of their signing the will.

Id. (emphasis added).

¶ 27. Turning to the matter at hand, Patrick Bell testified that Howard Griffith was his employer and asked him to “witness something” for him, and he did so at the People’s Bank in Magee. When asked how many times he signed, Bell responded, “I’m not sure.... Two times, I think.” Bell testified that, had he known the document he was signing was a will, he would not have “witnessed it” because “Mr. Howard was sick ... something was wrong with him, you know, mentally.” However, on cross-examination, Bell testified that Howard Griffith seemed to be of sound mind the day he signed his will.

¶ 28. When asked why he signed the 2006 affidavit, Bell responded, “I didn’t recognize the [will and attached affidavit]. I couldn’t be sure that was my signature.” On cross-examination, Bell admitted that he did not know who had prepared the 2006 affidavit, but that Howard’s son, Jimmy Griffith, gave it to him to sign. He admits that the 2006 affidavit is untrue insofar as it states Bell was told he was witnessing a power of attorney. Bell further admits that the 2006 affidavit was incorrect where it states that his signature on the will was a forgery. He testified that he “didn’t recognize any of the documents,” but he does recognize that his signature is, in fact, on the documents.

¶29. Eric Scott, when asked how he got from his place of employment to the People’s Bank the day the will was signed, replied “I’m really not sure ... But if my memory serves me well and so much has gone on. I think ... I may have driven my own vehicle there.” (Emphasis added.) When asked how many times he signed his signature that day, he responded, “Honestly, I only remember signing in one place ... but I understand that my signature is on ... those documents.” He then agreed that he might have signed more than once or twice. Scott went on to say, “I don’t know what I was witnessing.” When asked what state of mind Howard Griffith was in at the bank, Scott responded, “he basically seemed like himself.” Scott admitted on cross examination that the 2006 affidavit was invalid. When asked if he remembered signing the affidavit which was made part of the will, Scott said he did not remember.

¶ 30. As discussed in the majority opinion, the signatures of Scott and Bell appear three times on the will and the attached affidavit. Each man’s signature is under the word “WITNESSES” to the left of Howard Griffith’s signature on his will. Each man’s signature is under the “CERTIFICATE,” which plainly stated three times that the document they witnessed was the “Last Will and Testament” of Howard Griffith. Finally, each man’s signature is affixed to the “AFFIDAVIT OF SUBSCRIBING WITNESSES,” wherein both give sworn statements that they are the “subscribing witnesses to a certain instrument of writing purporting to be the Last Will and Testament of Howard Griffith” and that “Howard Griffith was then of sound and disposing mind and memory.” The affidavit was signed and sealed by Judy Lofton, a Notary Public. Based on her testimony, both men had to have produced identification in order to sign the affidavit. Furthermore, there are handwritten physical addresses underneath the signatures of both men on the affidavit.

¶ 31. Based on the less-than-consistent testimony of Bell and Scott at trial, and this Court’s strong warning in Warren that “testimony of attesting witnesses denying or impeaching the execution of the will ... [should] be viewed with caution and suspicion and it is usually entitled to little credence,” I am of the opinion that the trial court was manifestly in error for holding that the witnesses did not understand that the document they signed was Howard Griffith’s Last Will and Testament and the will was not duly executed. Warren, 184 So. at 809. The majority opinion clearly lays out the evidence before the trial court: “(1) the will, which included the ‘certificate’ and ‘affidavit of subscribing witnesses’; (2) Scott’s and Bell’s 2006 affidavits; and (3) Scott’s and Bell’s testimony at the hearing.” (Maj. Op. ¶ 13).

¶ 32. Both Scott and Bell testified that the 2006 affidavits were incorrect and untruthful. Fui’thermore, their testimony at the hearing, which is to be viewed with suspicion under Warren, revealed that each witness was unclear in his recollection of the events that unfolded the day they witnessed Howard Griffith signing the purported will. Scott testified that “so much [had] gone on” between the time the will was signed and the hearing, and that he did not remember how many times he had signed the will. He also stated that he did not remember signing the AFFIDAVIT OF SUBSCRIBING WITNESSES at all, but admitted it was his signature on that document. Bell testified that he did not recognize the will or the attached affidavit. He did not remember how many times he had signed the will, and although he felt Howard Griffith was sick, he agreed that Howard seemed to be of sound mind the day he signed the will.

¶ 33. The testimony clearly impeached the 2006 affidavit, and the witnesses’ stories are plagued with discrepancies. Furthermore, the testimony of two subscribing witnesses attempting to invalidate the execution of a will is deserving of little credence under Warren. The testimony revealed that it was Jimmy Griffith — who stood to inherit through intestate succession if Howard’s will was declared unduly executed — who presented the witnesses with the grossly inaccurate 2006 affidavits. It is this very type of evidence the Warren Court warns us to view with caution and suspicion. Warren, 184 So. at 809.

¶ 34. What is clear from the record, then, is that Scott and Bell signed Howard Griffith’s will as witnesses, and signed both a CERTIFICATE and sworn statements in an AFFIDAVIT OF SUBSCRIBING WITNESSES that clearly indicated the document at issue was the Last Will and Testament of Howard Griffith. Bell testified that Howard signed the will in their presence, and this, coupled with the clear and unambiguous language of the CERTIFICATE and AFFIDAVIT OF SUBSCRIBING WITNESSES, constitutes an act “by which [the testator] manifests that it is his intention to give effect to the paper, as his last will and testament” under Watson, 32 Miss. 451, 1856 WL 4030, ⅜11 (Miss.1856).

¶ 35. While this may not constitute formal publication, this meets the requirements for constructive publication as set out in Green, 145 Miss. 23, 110 So. 862, 864 (1927), and Maxwell, 127 Miss. 107, 88 So. 326, 328 (1921). Neither witness testified he was prohibited from reading the words on the document. From the record before this Court, it is clear “that enough [was] said and done in the presence and with the knowledge of the testator to make the witnesses understand that he desires them to know that the paper is his will, and that they are to be the witnesses thereto,” as set forth in Green. The CERTIFICATE and the AFFIDAVIT OF SUBSCRIBING WITNESSES call attention to the fact that the document being witnessed was the Last Will and Testament of Howard Griffith as required for constructive publication by Maxivell.

¶ 36. Finally, the majority, perhaps unintentionally, has placed every will in this state on the crest of a very slippery slope, one which may fill the chancery courts of this state with witnesses who cannot recall the manner by which countless wills were subscribed and attested. For these reasons, I respectfully dissent. Because I would find that the will was validly executed under these particular facts, I would remand the matter to the trial court for a hearing on undue influence.

CHANDLER, J„ JOINS THIS OPINION.

      . The chancellor limited the hearing to the issue of due execution and declined to hear evidence or rule on the issue of undue influence.

      . Both Scott and Bell testified that Howard signed the will in their presence.

      . “Publication of a will means a communication by the testator, or attributable to the testator, that the subject writing is a will.” Robert A. Weems, Wills & Administration of Estates in Mississippi § 4:7 (3d ed. 2003).

      . We note that the dissent fails to cite one case in which we have held that language in a certificate and affidavit of subscribing witnesses suffices as any form of publication when the witnesses have failed to read those documents and the testator has failed to make any indication that the document in question is a will. We further note that the certificate and affidavit of subscribing witnesses contain ''attestation clauses” which likely would constitute inadmissible hearsay. Robert A. Weems, Wills & Administration of Estates in Mississippi § 4:13 (3d ed. 2003).