author: FARMER, J. TAYLOR, J.,

text:
    Johnny COWAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1065.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant and a companion were arrested for burglary, handcuffed and left unattended in the rear seat of a police car. No one else was present, but a video monitor recorded them.

At trial the prosecution sought to admit excerpts of the recording. The state attorney contended that the companion could be understood as saying to defendant: “Damn, you think they caught us for the home invasion, home burglary?” and “Hey, we did not leave anything in there?” The prosecution argued that defendant’s lips seemed to be moving, that he appeared to say: “They’ve got it. They’ve got it.”

Defendant objected, saying that he did not respond in any way to his companion. He argued that, because he had been just arrested and taken into custody, the admission of the tape showing his silence to any declarations by his companion would violate his right against self-incrimination. The court allowed the evidence, reasoning that defendant was not being interrogated by police at the time.

Later, defendant testified on his own behalf, denying involvement in the burglary. He testified that he did not say anything while seated in the police car. When asked on cross-examination why his mouth seemed to be moving as in speech, he denied that his lips were moving. He denied ever saying: “they’ve got it; they’ve got it.” He explained that he remained silent in the police vehicle in spite of his companion’s declarations because he was angry at being arrested. Then this inquiry by the prosecutor:

Q. Did you at any point say to him: ‘What are you talking about, what burglary?’
A. No, because I was mad that he got me arrested.
Q. How come you didn’t say: ‘What burglary are you talking about?’ How come you didn’t say that?
A. I don’t know what you’re talking about.
Q. How come you didn’t say — when he said ‘damn, you think they caught us?’ — why didn’t you say ‘I’m not part of it. What are you talking about? I was not with you.’
A. Because I didn’t even talk to him.
Q. Do you have a problem with your hearing?
A No.

Over defendant’s objection the trial court allowed the line of questioning. The state then asked defendant: “At no point did you say to him, ‘Us, in a home invasion burglary? What are you talking about? I don’t know what you’re talking about?’” Again defense counsel objected without success.

In closing argument the prosecutor told the jury the following:

“What would be the reasonable reaction of a person who did everything perfectly legal? I got [certain goods stolen in a burglary] at the park. Why the police’s arresting me? What does he want from me? Co-defendant driver, McDonald, Mr. McDonald, damn, you think they caught us for the home invasion home burglary? How come he didn’t say robbery, shoplifting, punching somebody? Burglary. That’s exactly what happened in Mr. Neighbor’s house. Burglary.
“Defendant says — I asked him on cross examination, didn’t you hear the co-defendant say that?- — Yeah, I did. But I didn’t say anything. I just ignored him.... Wouldn’t a reasonable reaction, reasonable, not possible, not speculative, not all of that, the reasonable reaction of a normal person sitting, his buddy sitting next to him, the sole occupants of the car. They were sitting right next to each other. I wasn’t there. I didn’t burglarize nobody. I didn’t burglarize anybody. Why are you including me? What burglary? What are you talking about? No. Look at the video. That was not the reaction, the expression on the face, the expression on the face. Damn how are you going to get out of it now? Now we’re being caught. How are we going to get out of it? We’re caught for the burglary.
“Defendant never ... never denied that these words were uttered.... Wouldn’t the reasonable reaction of a normal person be, like, ‘who is we?’ ‘Who is us?’ T didn’t commit the burglary.’ T don’t know what you’re talking about.’ ‘What burglary?’
“When he took the stand he said T don’t know what you’re talking about.’ He never, ever said T have no idea why the police arrested me.’ T did nothing.’ T have no idea why they arrested me.’ ”

From a conviction, we have the appeal.

Defendant argues that the trial court violated his Florida right against self-incrimination when it admitted the recording and thereupon permitted the above cross-examination, allowing the prosecutor in closing argument repeatedly to emphasize defendant’s silence when the companion was said to have spoken to him in the police car. In particular defendant argues that in admitting the recording, the trial court allowed the prosecution to go beyond resolving any dispute as to whether defendant actually said anything in a conversation with the companion. He contends that the recording became the foundation for the State instead to question him about remaining silent and to argue that his silence was really evidence that he was guilty.

The record establishes that the prosecution’s sole justification in the trial court for the evidence and argument concerning silence was that he had waived his right against self-incrimination by participating in a conversation. As to the cross-examination and argument about his failure to respond to the companion’s assertions, it simply argues that it was not at all commenting on silence but instead merely impeaching his direct testimony that he never responded to the companion’s declarations.

We agree that the video recording may have been admissible for a limited purpose of showing that defendant may have actually spoken to the companion during their vehicular confinement, that he might thereby have voluntarily said something incriminating. But we do not agree that any attempt at impeachment justified cross-examination about things he did not say and corresponding argument set forth above. In other words, we draw a distinction between evidence of voluntary incul-patory comments by a defendant under arrest, on the one hand, and defendant’s silence — the absence of speech — on the other. The comments would be admissible because declarations by an accused then could be deemed his own voluntary statements. The video record would therefore be admissible to show actual speech by defendant but not for any purpose involving an exercise in silence.

Post-arrest, custodial silence of the defendant is simply inadmissible as evidence of guilt and is not a proper subject of argument. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), concerned unexpected testimony at trial by defendants as to an exculpatory defense not stated before. The trial court allowed the prosecution to cross-examine them as to why they had not previously told the police or the prosecutor before trial about this defense. The Ohio prosecutor was also permitted to argue in closing that their pretrial silence as to the defense should be weighed against them. In holding all of this constitutionally impermissible, the Court made clear that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” 426 U.S. at 618, 96 S.Ct. 2240. The Court explained:

“Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State’s position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-airest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings.” [e.s., c.o.]

Id. at 617-18, 96 S.Ct. 2240. Hence, because of the constitutional right against self-incrimination, under Doyle “every post-arrest silence” should be deemed insolubly ambiguous as inculpatory evidence and, for that reason, unavailable as proof of guilt, [e.s.]

In this case, it does not appear that the Miranda warnings had yet been administered when defendant and his companion were left in the police vehicle. But that omission hardly weakens defendant’s right against self-incrimination in this State because Florida law does not require a prior incantation of a Miranda warning. The Florida Supreme Court has held that regardless of whether the federal Miranda warning has been given, the Florida right against self-incrimination attaches at the time of arrest. State v. Hoggins, 718 So.2d 761, 768-69 (Fla.1998); Art. I, § 9, Fla. Const. (providing that an individual shall not “be compelled in any criminal matter to be a witness against himself’); see also Clark v. State, 363 So.2d 331, 333 (Fla.1978) (“Indisputably, evidence of post-arrest silence is improper because it violates the defendant’s right against self-incrimination.”); Hicks v. State, 590 So.2d 498 (Fla. 3d DCA 1991) (holding that as matter of state constitutional law, it is impermissible to comment on defendant’s post-arrest silence whether silence is induced by Miranda warnings or not). Therefore, defendant’s right against self incrimination attached at the instant of his arrest — even without Miranda warnings.

We see no significance in the fact that defendant’s silence was not a response to police interrogation. Neither was defendant’s silence in Hoggins a response to police interrogation, arising instead from accusations by the victim of the crime. Yet Hoggins emphasized that the state constitutional right against self-incrimination after arrest “extendfs] to all evidence and argument, including impeachment evidence and argument, that was fairly susceptible of being interpreted by the jury as a comment on silence.” [e.s.] 718 So.2d at 769. Similarly, in Hosper v. State, 513 So.2d 234 (Fla. 3d DCA 1987)— cited with approval in Hoggins, 718 So.2d at 769 — the Third District held: “The prosecution is not permitted to comment upon a defendant’s failure to offer [e.s.] an exculpatory statement prior to trial, since this would amount to a comment upon the defendant’s right to remain silent.” 513 So.2d at 235; see also Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977) (same holding as- regards questioning of defendant concerning his failure to give exculpatory explanation at any time prior to his trial testimony). The plain meaning of the phrase used in Hoggins — “all evidence and argument” — includes circumstances other than police interrogation. Hence, the Florida Constitutional right against self-incrimination does not require police interrogation to trigger its protection; it shields all post-arrest silence with or without police interrogation. The accused does not need any contextual element of police questioning to bar any use at trial of his post-arrest silence. Hoggins, 718 So.2d. at 771.

When evidence or argument is “fairly susceptible of being interpreted by the jury as a comment on silence,” it violates defendant’s right against self-inmmi-nation under Florida law. Hoggins, 718 So.2d at 769. This is true whether evidence of post-arrest silence is introduced in the state’s case-in-chief or instead for impeachment purposes. Id. As a consequence, “courts must prohibit all evidence or argument [e.s.] that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.” State v. Smith, 573 So.2d 306, 317 (Fla.1990).

In State v. Kinchen, 490 So.2d 21 (Fla.1985), the supreme court was asked to abandon the “fairly susceptible” test in favor of a more elastic standard of review tolerating some comments about silence. In refusing to change the standard, the court said:

“Commenting on a defendant’s failure to testify is a serious error. The fairly susceptible test offers more protection to defendants than does the federal test, and we decline the state’s invitation to adopt the latter.”

490 So.2d at 22. Justice Ehrlich further explained in his concurring opinion that: “The purpose of this drastic remedy is not to punish the prosecutor for misconduct, but to preserve to the individual the full measure of his constitutional right to remain silent.” 490 So.2d at 23. The full measure of the right against self-incrimination must necessarily embrace ah silence between arrest and trial. It is not limited merely to the right to stand mute at trial.

The issue is thus whether the cross-examination of defendant and closing argument in this case are “fairly susceptible of being interpreted by the jury as a comment on silence.” 718 So.2d at 769. The prosecution repeatedly asked defendant why he did not respond to the companion’s implied accusation. The State repeatedly argued that if truly he had not been involved in the burglary he would have responded with protestations of innocence. A jury could reasonably interpret this entire line of cross-examination and its related argument to imply some duty upon defendant to respond by contradiction. Therefore, the prosecution’s cross-examination and closing argument were “fairly susceptible” of being interpreted by the jury as a comment on defendant’s silence. The State has failed to demonstrate beyond a reasonable doubt that this error had no effect on the jury. Munroe v. State, 983 So.2d 637, 642-43 (Fla. 4th DCA 2008).

Reversed for new trial.

POLEN, J., concurs.

TAYLOR, J. concurs specially with opinion.

TAYLOR, J.,

concurring specially.

I agree with the majority’s conclusion that appellant’s conviction should be reversed as a result of the prosecutor’s improper comments on appellant’s failure to respond to his co-defendant’s statements while in custody in the back of the police car. However, I would not base this decision on a violation of appellant’s right against self-incrimination under the Florida Constitution, but rather on our rules of evidence. In my view, the state constitution’s prohibition on the use of a defendant’s silence applies to silence in the face of accusations by, or in the presence of, the police after arrest.

Although the majority correctly points out that in Hoggins, “the defendant’s silence was not a response to police interrogation either, but was instead his only reaction to accusations by the victim of the crime,” Hoggins was handcuffed and being held by the police when he failed to respond to the victim’s identification. At trial, the prosecutor cross-examined Hog-gins, asking him: “You never told them, the police, this story that you just told the jury, did you?” Id. at 763 (emphasis added). As the supreme court noted, “the prosecutor was trying to elicit whether Hoggins told the arresting officers the account of events he had given at trial.” Id. Thus, the court in Hoggins was addressing a situation where the defendant’s post-arrest silence occurred in the presence of the police, not just private persons.

In Hoggins, the supreme court alternatively held that use of the defendant’s silence for impeachment purposes was precluded by Florida’s rules of evidence. Hoggins, 718 So.2d at 770. The court determined that because Hoggins’ silence was not inconsistent with his trial testimony, it lacked probative value and was inadmissible under a Rule 403 analysis. See § 90.403, Fla. Stat. (evidence is inadmissible where its probative value is outweighed by the danger of unfair prejudice). The court recognized that “inconsistency between post-arrest silence and an exculpatory statement made by a defendant at trial is difficult to establish,” and that “silence is generally deemed ambiguous.” Id. at 771 (citing United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975)). The court explained that “silence is ‘considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question.’ ” Id. (quoting Hale, 422 U.S. at 176, 95 S.Ct. 2133). According to the court, “the time of arrest is not an occasion when circumstances naturally call upon a defendant to speak out. On the contrary, there are many reasons that a defendant may choose to remain silent.” Id. In Hale, the Supreme Court recounted some of these reasons:

At the time of arrest ... innocent and guilty alike-perhaps particularly the innocent-may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention.

Id. (quoting Hale, 422 U.S. at 177, 95 S.Ct. 2133).

Noting the special circumstances in Hoggins’ case-that he was handcuffed and threatened by an accuser who had to be restrained by the police — the court concluded that Hoggins’ silence lacked any probative value and had a great potential for prejudice. Hoggins, 718 So.2d at 771-72. Similarly, in this case, where the defendant was under arrest and confined in the back of a police car, the defendant’s failure to respond to comments made by his co-defendant was more prejudicial than probative.

In Nelson v. State, 748 So.2d 237 (Fla.1999), the supreme court examined the rule of admissions by silence, as codified in section 90.803(18)(b), in the context of a criminal trial. There, the capital murder defendant argued that the trial court erred in admitting testimony about his silence in the face of a co-defendant’s statements regarding his involvement in the murder. In determining whether the defendant’s silence amounted to an admission by silence, the court applied the criteria established by the Fifth District Court of Appeal in Privett v. State, 417 So.2d 805 (Fla. 5th DCA 1982). The fifth district stated that the essential inquiry is whether a reasonable person would have denied a third party’s statement under the circumstances. Id. at 807. Among the six factors listed in Privett was whether “there were no physical or emotional impediments to the person responding.” Nelson, 748 So.2d at 242 (quoting Privett). Under the circumstances of this case, where the defendant had been arrested for a crime and was physically confined in a police vehicle, the physical and emotional impediments were such that his silence was not unreasonable and should not have been taken as an admission by silence.

Given the stringent test in Privett for determining whether silence constitutes an admission by acquiescence, there are probably few post-arrest situations where an accused’s silence will be considered so unreasonable as to be deemed an admission and have sufficient probative value to overcome its potential for prejudice. This is so whether the accused is in or out of custody and whether he is refusing to respond to a member of the press or a member of his own family. However, as noted above, where the accused’s post-arrest silence occurs during interrogation by the police, or while in the presence of law enforcement officials, no inquiry into the surrounding circumstances is necessary, because use of the defendant’s silence in that situation is precluded by our state constitution, as well as our evidentiary rules.

      . But as to the parts sought to be admitted, the audio was "too garbled” for the court reporter to transcribe. At best they are unclear.

      . The State did not argue any basis under the Evidence Code to admit the evidence.

      . And so the State's justification here that it was merely impeaching defendant did not save its improper use of post-arrest silence.

      . Furthermore, the focus in Hoggins was on whether the prosecutor's use of the defendant’s post-arrest silence, prior to Miranda warnings, violated the defendant's rights under the state constitution.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Martin SIMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1108.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.
    Carlos J. Martinez, Public Defender, and Beth C. Weitzner, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   Confession of Error

PER CURIAM.

This is an appeal of an order revoking the probation of defendant-appellant Martin Simon. The State concedes that at the hearing below, the defendant admitted to a violation of conditions one and thirteen, and the oral pronouncement in this case found a violation of conditions one and thirteen only. The State acknowledges that the revocation order erroneously includes a violation of two other conditions, conditions five and ten, as a basis for revoking probation. Based on the State’s concession, we reverse the revocation order in part and remand with directions to delete the reference to conditions five and ten. See Williams v. State, 764 So.2d 757, 758 (Fla. 2d DCA 2000) (“A written order of revocation must conform with the trial court’s oral pronouncement.”). The defendant need not be present.

Affirmed in part, reversed in part, and remanded for correction of order.


text:
    Dawayne Ivan SHAZER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4646.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The State agrees that appellant’s dual convictions for robbery with a deadly weapon and grand theft violate his double jeopardy rights because the same property formed the basis for both convictions. See Ingram v. State, 928 So.2d 1262 (Fla. 4th DCA 2006). Accordingly, we reverse appellant’s conviction and sentence for grand theft and remand with directions to the trial court to vacate the same.

STEVENSON, TAYLOR and MAY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Leigh COESTER, Appellee.
    No. 4D07-4886.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Katherine W. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Kelly, 999 So.2d 1029 (Fla.2008); Hlad v. State, 585 So.2d 928 (Fla.1991).

POLEN, HAZOURI and CIKLIN, JJ., concur.


text:
    Eddie TOWNS, III, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM, on behalf of Tangia R. RUDOLPH, Appellee.
    No. 4D08-764.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.
    Eddie Towns, III, Lake Park, pro se.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant filing an original action in circuit court to determine paternity or to establish child support obligations. See §§ 742.18, 409.2563(4)0, Fla. Stat. (2008). This affirmance is also without prejudice to appellant contesting the department’s personal jurisdiction over the appellant in an appropriate forum.

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    STATE ex rel. Willie Lee TART v. STATE of Louisiana.
    No. 2007-KP-2451.
    Supreme Court of Louisiana.
    March 4, 2009.
   PER CURIAM.

| xWrit granted; case remanded to the district court. Pursuant to O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), when a state provides a two-tier system of review, the petitioner must seek relief at both levels of review to satisfy exhaustion requirements for federal habeas corpus proceedings. See also Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989) (exhaustion requirement not satisfied by “submission of a new claim to a State’s highest court on discretionary review”). Accordingly, our denial of writs in State ex rel. Tart v. Cain, 02-2132 (La.11/26/03), 860 So.2d 1126, in which relator sought relief on the basis of the intervening decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (execution of mentally retarded persons constitutes an excessive punishment and thus violates the Eighth Amendment) without presenting the claim first to the district court does not preclude further proceedings designed to produce a definitive answer to the question of whether relator is mentally retarded and so |2exempt from capital punishment. Given the retroactivity of Atkins to death row inmates on collateral review, see State ex rel. Edwards v. Cain, 02-0514 (La.3/21/03), 841 So.2d 768; see also Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir.2002)(same) (citing Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256 (1989)), the district court is ordered to make a substantive ruling on whether relator qualifies as mentally retarded under Atkins and is hence ineligible for execution. See State v. Dunn, 02-0878, p. 7 (La.1/25/08), 974 So.2d 658, 662-63. Although the district court has already taken evidence on the Atkins issue, it may conduct further evidentiary proceedings as it deems necessary to address the claim fully on the merits. Relator may seek review in this Court from any adverse ruling by the district court.


text:
    STATE ex rel. Byron MORGAN v. STATE of Louisiana.
    No. 2008-KH-1082.
    Supreme Court of Louisiana.
    March 4, 2009.
   PER CURIAM.

Writ granted in part; otherwise denied; case remanded. The district court is oi-dered to appoint counsel for relator and hold a hearing at which it will determine the terms, if any, of the sentences negotiated by relator and the East Baton Rouge Parish District Attorney. If the district court concludes that the parties negotiated an enforceable agreement that relator would spend no more than 10 years in prison, the court is ordered to resentence relator accordingly. See State v. Tanner, 425 So.2d 760, 763 (La.1983); State v. Hingle, 242 La. 844, 139 So.2d 205, 210 (1962). On the other hand, if the district court determines that relator pled guilty based on his attorney’s erroneous advice about eligibility for diminution of sentence for good behavior, the court must allow relator to withdraw his guilty pleas. See State ex rel. Aleman v. State, 99-1180 (La.10/1/99), 745 So.2d 602. Finally, if the court determines that relator pled guilty absent any misrepresentation concerning his eligibility for early release, it may deny relief in all respects.


text:
    In re Michael J. REYNOLDS.
    No. 2009-B-0216.
    Supreme Court of Louisiana.
    March 4, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

In 2007, respondent was convicted of third-offense DWI, a felony, in violation of La. R.S. 14:98. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel (“ODC”) submitted a joint petition for consent discipline, in which the parties stipulated that respondent has committed a criminal act in violation of Rule 8.4(b) of the Rules of Professional Conduct, and violated Rule 8.3(a) by failing to report his two previous DWI convictions to the ODC. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Michael J. Reynolds, Louisiana Bar Roll number 1126, be suspended from the practice of law for one year and one day, retroactive to the date of his interim suspension in In re: Reynolds, 07-0825 (La.5/9/07), 956 So.2d 575.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Richard Joseph GUIDRY.
    No. 2009-B-0430.
    Supreme Court of Louisiana.
    March 4, 2009.
   ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, Richard Joseph Guidry, and the Office of Disciplinary Counsel,

IT IS ORDERED that Richard Joseph Guidry, Louisiana Bar Roll number 18927, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana


text:
    In re Ahmad MUHAMMAD.
    No. 2008-B-2769.
    Supreme Court of Louisiana.
    March 4, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Ahmad Muhammad, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime. In re: Muhammad, 04-1643 (La.7/9/04), 878 So.2d 515.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1984. In October 1990, respondent received an admonition for his failure to cooperate with the ODC in a disciplinary investigation. In November 1990, respondent received a second admonition for his failure to cooperate with the ODC in a separate investigation.

In September 1991, respondent pled nolo contendere to one count of felony unauthorized use of a movable arising out of his conversion of approximately $5,000 in client funds. On November 29, 1993, this court placed respondent on interim suspension based on his conviction. In re: Muhammad, 629 So.2d 408 (La.1993). Thereafter, this court suspended respondent from the practice of law for three years, retroactive to the date of his interim suspension, for conversion of client funds. In re: |2Muhammad, 95-0515 (La.6/2/95), 655 So.2d 325. In 1997, respondent was reinstated to the practice of law. In re: Muhammad, 97-1335 (La.6/30/97), 696 So.2d 1001.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed four sets of formal charges against respondent, consisting of a total of five counts of misconduct. Three hearing committees considered the formal charges before they were consolidated by the disciplinary board, which then filed in this court a single recommendation of discipline encompassing all four sets of formal charges.

02-DB-131

The Wilson Matter

Respondent represented Eugene Wilson in a criminal matter in the 13th Judicial District Court. He was cited six times for contempt of court for his failure to appear in court on October 4, 2001, October 29, 2001, November 14, 2001, November 16, 2001, November 27, 2001, and December 18, 2001. On January 4, 2002, the judge found respondent guilty of six counts of contempt of court and sentenced him to pay fines and serve time in the Evangeline Parish jail. Respondent was ordered to report to jail on January 11, 2002 to commence serving his sentence, but he failed to do so. He was also ordered to appear in court on January 11, 2002 to answer a seventh contempt of court charge for his failure to appear on January 4, 2002, but he failed to do so. Accordingly, the judge found respondent guilty of an additional instance |3of contempt of court, sentenced him to an additional 60 days in jail, and issued a warrant for his arrest. The judge also ordered that extradition proceedings against respondent commence immediately as he was residing in Mississippi at the time.

The Gallow Matter

Elrick Gallow, respondent’s nephew, was charged with felony aggravated battery, armed robbery, and kidnapping, and respondent represented him in the criminal case in the 13th Judicial District Court. The victim in the case was a cousin of both respondent and Mr. Gallow, and respondent failed to disclose to Mr. Gallow that he had a close relationship with the mother of the victim. Because of this relationship, respondent refused to cross-examine the victim at the trial. Instead, on November 23, 1999, the second day of Mr. Callow’s trial, respondent convinced Mr. Gallow to plead guilty to aggravated second degree battery and second degree kidnapping and to accept a sentence of thirty years in prison. In an affidavit signed by respondent on February 15, 2000, respondent admitted that he intentionally gave Mr. Gallow incorrect advice concerning the evidence he possessed to impeach the testimony of the victim. Respondent further admitted he failed to advise Mr. Gallow that he would have a right to appeal any errors that occurred in the trial if he was convicted and billed as a habitual offender. The affidavit also indicated that Mr. Gal-low pled guilty because of respondent’s erroneous advice.

In a sworn statement given to the ODC on October 24, 2001, respondent indicated that he agreed to represent Mr. Gallow because he did not want him to be represented by a public defender. Respondent also stated that he thought they could work out a plea bargain, but Mr. Gallow would not accept twenty-five years in prison; thus, the case went to trial. Respondent felt as if he would be abandoning his nephew |4if he withdrew at this point. However, he also did not like what his nephew had done to their cousin or the other criminal conduct his nephew had told him he had engaged in in the past. Respondent felt Mr. Gallow should be punished, and because of his religious beliefs, respondent did not feel comfortable trying to impeach the victim’s testimony. Thus, he convinced Mr. Gallow to plead guilty.

Fmmal Charges

In December 2002, the ODC filed two counts of formal charges against respondent in 02-DB-031. In the Wilson matter, the ODC alleged that respondent’s conduct violated Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 3.2 (failure to make reasonable efforts to expedite litigation), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. In the Gallow matter, the ODC alleged that respondent violated Rules 1.1(a), 1.2(b) (limiting the scope of the representation without a client’s consent), 1.3, 1.4(b) (failure to communicate with a client), 1.7(b) (conflict of interest), 2.1 (failure to exercise independent professional judgment in representing a client), 3.3(a)(1) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal), 3.4(c), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

Respondent initially failed to answer the formal charges, and the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). However, |r,upon the filing of an answer by respondent, the deemed admitted order was recalled and the matter proceeded to a formal hearing on the merits.

Respondent appeared at the hearing with counsel; however, his attorney was allowed to withdraw from the representation at the beginning of the hearing due to his status as a potential witness in the matter. Respondent requested a continuance to obtain new counsel, but the committee chair denied the motion because respondent knew of the conflict long before the hearing and had ample time to obtain new counsel. Respondent voiced a general objection to the hearing going forward and a general objection to any of ODC’s exhibits being introduced, but his objections were overruled. Respondent did not testify before the committee, nor did he call any witnesses or introduce any evidence on his own behalf.

During a break in the hearing, respondent was arrested on the outstanding contempt of court warrant subject of the Wilson matter. In a post-hearing memorandum, respondent argued that his arrest during the hearing tainted the hearing. He also re-urged his argument that the hearing should have been continued so he could obtain new counsel. Nonetheless, he admitted that he could have handled the Wilson case and the Gallow case “with better judgment and in a different manner.” He suggested a six-month suspension was appropriate for his conduct, while the ODC argued that permanent disbarment is warranted.

Hearing Committee Report

After reviewing the testimony and the evidence presented at the hearing, as well as the post-hearing memoranda, the hearing committee made the following findings of fact and law:

| {{The Wilson matter — Because of his repeated failures to appear in court and his contempt judgments, respondent was not able to provide competent representation to his client. Respondent had multiple obligations to appear and elected not to do so. It took more than one year from conviction to final sentencing of Mr. Wilson. Respondent delayed and refused to participate in the court proceedings and made a conscious effort to prevent the diligent and prompt representation of his client. Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rule 8.4(c), which the committee did not find was violated.

The Gallote matter — Respondent admitted under oath in his affidavit to the following: 1) Mr. Gallow pled guilty involuntarily because respondent was laboring under a serious conflict of interest that prevented him from rendering effective assistance of counsel; 2) Respondent failed to inform Mr. Gallow of a close family relationship to his victim, and respondent admits that the relationship compromised his representation of Mr. Gallow because of his divided loyalties; 3) Respondent failed to advise Mr. Gallow that he would not be able to cross-examine the victim because of his conflicting relationship with the victim’s mother; 4) Respondent refused to cross-examine the victim and advised Mr. Gallow to plead guilty instead; and 5) Respondent intentionally gave Mr. Gallow incorrect advice concerning evidence he possessed to impeach the victim. Either the affidavit is false and was submitted to the court by way of deception, or the affidavit is true and Mr. Gallow was deceived. Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

In aggravation, the committee found pri- or disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victim,_Jjand substantial experience in the practice of law (admitted 1984). The committee found no mitigating factors present.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for three years.

Both respondent and the ODC filed objections to the hearing committee’s report and recommendation.

Respondent again argued that he was denied his right to counsel at the hearing, was denied a continuance to obtain new counsel, and was prejudiced by his arrest during the hearing. Thereafter, respondent requested that argument before the disciplinary board be continued because he was then incarcerated in Mississippi and had not yet obtained counsel. The disciplinary board denied the continuance on the ground that respondent had not shown that he had diligently sought counsel or that his incarceration prevented him from obtaining counsel. However, in August 2004, the board stayed the matter for future consolidation with the pending formal charges in 04-DB-071.

04-DB-071

In 1999, a guardianship estate was opened in the Chancery Court of Jefferson County, Mississippi for the benefit of Hillary White, III, a minor. In September 2001, respondent prepared and filed into the court record an order authorizing certain expenditures on behalf of the minor, including the sum of $800 payable to George West, a Natchez attorney, for attorney’s fees. Although the order was purportedly signed by Chancery Court Judge Kenneth Middleton, the judge’s signature was a forgery, a fact of which respondent was aware when he submitted the order to the | scourt for filing. Moreover, respondent obtained the $800 check payable to Mr. West and presented it for payment, knowing that Mr. West’s endorsement had been forged on the check.

On June 18, 2003, respondent pled guilty to the offense of uttering a forgery, a felony, in the Circuit Court of Jefferson County, Mississippi. Respondent failed to appear for sentencing on August 11, 2003, and a bench warrant was issued for his arrest. On June 21, 2004, respondent was sentenced to serve three years in the custody of the Mississippi Department of Corrections, with credit for time served, and the remainder of the sentence suspended, subject to a three-year period of supervised probation with conditions. Respondent was also ordered to make restitution of $19,600 to the guardianship account of Hillary White.

05-DB-004

Respondent represented Toby Brum-field in a personal injury matter arising from a July 1997 automobile accident. The Louisiana Medical Clinic treated Mr. Brumfield’s injuries, and respondent guaranteed, in writing, payment of his bill from any settlement or judgment in the case.

In November 1997, respondent settled Mr. Brumfield’s case. Mr. Brumfield received some portion of the settlement proceeds, but respondent did not pay the Louisiana Medical Clinic’s $1,775 bill from the settlement proceeds.

Formal Charges

In July 2004, the ODC filed one count of formal charges against respondent in 04-DB-071, alleging that his conduct violated Rules 8.4(b) (commission of a criminal | flact that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 8.4(c) of the Rules of Professional Conduct. Respondent initially failed to answer the formal charges, and the factual allegations contained therein were deemed admitted and proven by clear and convine-ing evidence. However, upon the filing of an answer by respondent, the deemed admitted order was recalled.

In January 2005, the ODC filed one count of formal charges against respondent in 05-DB-004, alleging that his conduct violated Rules 1.15(d) (failure to remit funds to a client or third party) and 8.4(c) of the Rules of Professional Conduct. Respondent answered the formal charges, indicating that he would reimburse the Louisiana Medical Clinic if the debt was still outstanding.

In February 2005, the hearing committee chair consolidated 04-DB-071 and 05-DB-004. The consolidated matters then proceeded to a formal hearing on the merits. At the hearing, the ODC introduced documentary evidence and called John McClendon, the attorney for Louisiana Medical Clinic, and Toby Brumfield to testify before the committee.

Respondent represented himself and participated in the hearing via telephone. He did not call any witnesses to testify before the committee and did not testify on his own behalf or on cross-examination by the ODC. Although respondent was given extra time to submit documentary evidence in mitigation, he failed to do so.

Hearing Committee Report

After reviewing the testimony and evidence presented at the hearing, the hearing committee made the following findings of fact and law:

|inRespondent pled guilty to forgery, a felony, with full knowledge of the consequences of his actions. The crime to which he pled guilty involved dishonesty, fraud, deceit, and misrepresentation. Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges in 04-DB-071.

Respondent expressly represented to Mr. Brumfield’s treating physician that his medical bill would be paid from any settlement or judgment obtained in the case. No such payment was ever made and no explanation was offered. Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges in 05-DB-004.

In aggravation, the committee found pri- or disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. The committee noted that respondent had the opportunity to provide evidence of mitigating circumstances but failed to do so.

Citing Guideline 9 (instances of serious attorney misconduct or conviction of a serious crime preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime) of the permanent disbarment guidelines listed in Supreme Court Rule XIX, Appendix E, the committee recommended that respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

05-DB-056

Respondent prepared a bankruptcy petition in the name of John Lavabais, without Mr. Lavallais’ authorization, fraudulently claiming that Mr. Lavabais had an Inownership interest in respondent’s home. Respondent filed the fraudulent bankruptcy petition in the United States Bankruptcy Court for the Middle District of Louisiana in an attempt to stop the foreclosure of his home.

In November 2004, respondent pled guilty to one count of bankruptcy fraud in the United States District Court for the Middle District of Louisiana. In March 2005, he was sentenced to serve thirty months in the custody of the U.S. Bureau of Prisons, which sentence was to begin immediately following his release from the Hinds County (Mississippi) Restitution Center, where he was serving his sentence imposed in connection with his conviction of forgery.

Formal Charges

In May 2005, the ODC filed one count of formal charges against respondent, alleging that his conduct violated Rule 8.4(b) of the Rules of Professional Conduct.

In lieu of an answer to the formal charges, respondent filed a pre-hearing memorandum, in which he addressed the formal charges and argued that a hearing was premature because he had appealed his conviction to the United States Fifth Circuit Court of Appeals. Accordingly, the hearing committee chair continued the hearing without date. On November 28, 2006, the United States Fifth Circuit Court of Appeals dismissed respondent’s appeal, stating that “the record discloses no non-frivolous issue for appeal.” Thereafter, the hearing committee set the matter for a formal hearing on the merits.

Respondent then argued that the hearing should be stayed because he had filed a petition for writ of certiorari with the United States Supreme Court. However, respondent submitted the petition in an incorrect format and did not correct the form, despite notices to do so; therefore, the Supreme Court delayed acting upon the |12petition. Accordingly, the hearing committee chair denied respondent’s motion for stay, and a hearing was conducted in August 2007. Respondent declined to participate in the hearing.

Following the hearing but before the hearing committee filed its report and recommendation, respondent filed in this court a “Motion to Set Aside Finding of Hearing Committee.” In his motion, respondent argued that the hearing committee recommendations should be set aside in all four sets of formal charges. With respect to the first three sets of formal charges, he argued that he was deprived of the opportunity to be represented by counsel and that the ODC had him arrested during the first hearing. He also argued that the disciplinary proceedings should be continued until the United States Supreme Court acted on his writ application, which he resubmitted to the Supreme Court in the correct format on September 14, 2007, more than one month after the hearing in 05-DB-056. However, respondent failed to inform this court that the United States Supreme Court denied his petition for writ of certiorari on October 15, 2007, two weeks prior to the filing of the motion. See Muhammad v. United States, — U.S. -, 128 S.Ct. 459, 169 L.Ed.2d 321 (2007). We denied respondent’s motion on November 21, 2007. In re: Muhammad, 07-2124 (La.11/21/07), 967 So.2d 531.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee made the following factual findings:

1) Respondent caused a fraudulent bankruptcy petition to be filed;

| ia2) Respondent acknowledged that the bankruptcy petition was filed to defraud the company holding the mortgage on his home;

3) Respondent acknowledged that he filed the bankruptcy petition with the specific intent to defraud;

4) Respondent entered a plea of guilty to felony bankruptcy fraud;

5) The felony of bankruptcy fraud involves deceit, misrepresentation, and specific intent to defraud;

6) As a result of his guilty plea, respondent was sentenced to incarceration for thirty months;

7) The criminal act to which respondent pled guilty is one that reflects adversely on his honesty, trustworthiness, and fitness as a lawyer; and

8) Respondent’s conduct indicates that he is a danger to the public and to the practice of law.

Based on these findings, the committee found that respondent violated Rule 8.4(b) of the Rules of Professional Conduct. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.

In aggravation, the committee found pri- or disciplinary offenses, dishonest or selfish motive, and a pattern of misconduct. The committee found no mitigating factors present.

Turning to the issue of an appropriate sanction, the committee looked to the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E. Relying upon Guideline 2 (intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury) and Guideline 9, the committee recommended that respondent be permanently disbarred.

114In lieu of filing an objection to the hearing committee’s recommendation, respondent filed a “Motion to Set Aside Finding of Hearing Committee and to Continue Disciplinary Proceedings Pending Conclusion of All Appeals in Accordance with Louisiana Supreme Court Rule XIX, Section 19 c.” In this motion, filed with the disciplinary board on October 2, 2008, after oral argument was conducted before a panel of the disciplinary board, respondent requested that the committee’s findings be set aside because the hearing was held while his petition for writ of certiorari was pending before the United States Supreme Court. Further with respect to his bankruptcy fraud conviction, respondent indicated that he had filed a “Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255,” which he filed with the United States District Court for the Middle District of Louisiana. Thus, respondent requested that the disciplinary proceedings be continued until all appeals of his conviction are exhausted. After considering respondent’s motion and the ODC’s response, the disciplinary board denied the motion on October 9, 2008.

Respondent also filed a notice of removal in the United States District Court for the Middle District of Louisiana to remove 05-DB-056 from the jurisdiction of the Louisiana Attorney Disciplinary Board. The district court judge, citing Alaska Bar Ass’n v. Dickerson, 240 F.Supp. 732 (D.Alaska 1965), determined that “the disciplinary proceeding is not a civil action within contemplation of the federal removal statute.” Accordingly, the judge remanded the matter back to the Louisiana Attorney Disciplinary Board. Respondent then filed a notice of appeal to the United Instates Fifth Circuit Court of Appeals, the status of which is unclear from the record of these disciplinary proceedings.

On November 13, 2008, prior to the filing of the disciplinary board’s consolidated recommendation in this court, respondent filed with this court a “Motion to Deem Matters Admitted, to Compel the Louisiana Disciply [sic] Board, and to Continue Disciplinary Proceedings Pending Conclusion of All Appeals in Accordance with Louisiana Supreme Court XIX, Section 19 c.” In this motion, respondent argued that the allegations he made in his October 2, 2008 motion filed with the disciplinary board should be deemed admitted on the ground that the ODC and the board did not specifically deny the allegations. He also urged this court to set aside the hearing committee’s findings and recommendation and continue the disciplinary proceedings until all of his appeals have been exhausted. The ODC opposed the motion, arguing that respondent’s conviction became final upon the denial of his petition for writ of certiorari.

Before we could consider respondent’s motion, the disciplinary board filed on November 20, 2008 its recommendation of discipline in the instant matter.

02-DB-131, 04-DB-071, 05-DB-004, & 05-DB-056

Disciplinary Board Recommendation

After reviewing the consolidated matters, the disciplinary board generally accepted the hearing committees’ factual findings, and agreed that respondent violated the Rules of Professional Conduct as charged. The board determined that respondent violated duties owed to his clients, the public, the legal system, and the legal profession. He acted knowingly and intentionally, causing extensive harm. 11fiRelying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is disbarment.

In aggravation, the board found prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, substantial experience in the practice of law, and illegal conduct. The board found no mitigating factors present.

Further citing Guidelines 2 and 9 of the permanent disbarment guidelines, the board recommended that respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990).

In the instant case, respondent stands convicted of forgery and bankruptcy fraud. These crimes clearly warrant serious discipline. Therefore, the only remaining issue is the appropriate sanction for respondent’s misconduct. The resolution of that issue depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

| l7The record supports the board’s determination that respondent’s misconduct was knowing and intentional. He caused harm to his clients, the public, the legal system, and the profession. The aggravating factors found by the board are supported by the record. We find no mitigating factors present. Under the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction is disbarment.

The sole remaining question for our consideration is whether respondent’s misconduct is so egregious that he should be permanently prohibited from seeking readmission to the practice of law. The sanction of permanent disbarment is set forth in the 2001 amendment to Supreme Court Rule XIX, § 10 and § 24. In our commentary accompanying the amendment, we stated, in pertinent part:

In the public interest, the Court has amended Louisiana Supreme Court Rule XIX to codify Permanent Disbarment as an available sanction for attorney misconduct. While the Court has always had the discretion to deny an application for readmission after the requisite five (5)-year waiting period after disbarment, an attorney who is permanently disbarred under these circumstances will be prohibited from applying for readmission to the bar. These amendments reflect the judgment of the Court that in some instances lawyer misconduct may be so egregious as to warrant a sanction of permanent disbarment based on the facts of an individual case and in consideration of the guidelines in Appendix E to the Rules of Lawyer Disciplinary Enforcement.

In Appendix E, we set forth several guidelines illustrating the types of cases which might warrant permanent disbarment. We explained that these guidelines were not intended to bind the court in its decision making, but to provide “useful information to the public and to lawyers concerning the types of conduct the Court might consider to be worthy of permanent disbarment.”

Guideline 2 of Appendix E provides that an attorney’s “[i]ntentional corruption of the judicial process” is a ground for permanent disbarment. Clearly, respondent’s | ^convictions of forgery and bankruptcy fraud involve conduct which demonstrates an intent to corrupt the judicial process.

Also pertinent in this case is Guideline 9, which applies to “[instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime.” Respondent’s current misconduct was preceded by his three-year suspension in 1995 based on serious misconduct involving conversion of client funds.

We do not impose the sanction of permanent disbarment lightly. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. Respondent’s criminal convictions reveal he intentionally engaged in conduct that was calculated to frustrate the administration of justice. Moreover, we find it particularly disturbing that these actions occurred after respondent had been disciplined by this court for other serious misconduct in 1995. Rather than learning from that discipline, respondent began engaging in the misconduct which forms the basis of these proceedings less than two years after we reinstated him. Such actions are an affront to this court, which demands high standards of honesty by attorneys licensed to practice in this state. See Louisiana State Bar Ass’n v. Haylon, 250 La. 651, 198 So.2d 391, 392 (1967). Respondent’s conduct convincingly demonstrates that he does not possess the requisite moral fitness to practice law in this state. He must be permanently disbarred.

| |flBased on this reasoning, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that the name of Ahmad Muhammad, Louisiana Bar Roll number 14468, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . During his guilty plea, respondent denied knowing who signed the order; he would only admit that he knew it had not been signed by Judge Middleton.

      . Respondent requested a continuance because the hearing was scheduled to take place while he was still incarcerated in Mississippi. Thereafter, respondent failed to participate in a telephone conference with the ODC and the hearing committee chair to discuss his motion for continuance. The committee chair denied the motion but ordered that arrangements be made for respondent to participate via telephone.

      . In its report, the hearing committee determined that respondent 1) acknowledged he received proper notice but did not intend to participate in the hearing; 2) claimed he had retained counsel but refused to identify his counsel; and 3) provided a written acknowledgment that he did not intend to participate in the hearing. Nevertheless, a conference call link was established in order for him to participate in the hearing. Neither he nor his attorney used die link to participate in the hearing.

      . Respondent did not appear for oral argument before the panel.

      . As previously noted, the United States Supreme Court did not accept respondent's writ application for filing until September 14, 2007, when he finally submitted it in the correct format. This was more than one month after the hearing took place. The Supreme Court denied certiorari on October 15, 2007. The hearing committee did not file its report and recommendation with the disciplinary board until June 2, 2008.

      . Because the imposition of permanent disbarment is the most severe sanction that can be imposed on respondent, having the effect of forever removing him from the bar of this state, we find it is not necessary to discuss the misconduct charged in the remaining counts of the formal charges. In re: Stephens, 07-0180 (La.4/27/07), 955 So.2d 140, citing In re: O'Keefe, 03-3195, pp. 11-12 (La.7/2/04), 877 So.2d 79, 86.


text:
    STATE of Louisiana v. Frank MCCOIL.
    No. 2009-KK-0432.
    Supreme Court of Louisiana.
    Feb. 27, 2009.
   In re McCoil, Frank; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 477-816; to the Court of Appeal, Fourth Circuit, No. 477-816.

Not considered; not timely filed.


text:
    STATE ex rel. James R. TOWNLEY v. STATE of Louisiana.
    No. 2009-KH-0358.
    Supreme Court of Louisiana.
    March 3, 2009.
   In re Townley, James R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. RC2850-08; to the Court of Appeal, Third Circuit, No. KH 08-01435.

Granted for the sole purpose of transferring the writ of habeas corpus ad subji-ciendum and motion to supplement and/or amend writ of habeas corpus ad subjicien-dum to the district court with instructions to the district judge to act on relator’s application(s) filed on November 20, 2008. the district court is ordered to provide this Court with a copy of its judgment. A copy of the application is attached.


text:
    STATE of Louisiana v. Roger L. SMITH.
    No. 2008-KO-1661.
    Supreme Court of Louisiana.
    March 3, 2009.
   In re Smith, Roger L.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 463-518; to the Court of Appeal, Fourth Circuit, No. 2007-KA-1432.

Denied.


text:
    STATE of Louisiana v. D.B.
    No. 2009-CK-0462.
    Supreme Court of Louisiana.
    March 4, 2009.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 2009-009-02-DQ-C; to the Court of Appeal, Fourth Circuit, Nos. 2009-C-0240, 2009-C-0240.

Granted in part. The order of the Juvenile Court ordering the State to produce the witness for questioning by the defense is vacated.


text:
    STATE of Louisiana v. Wilbert J. ROBINSON.
    No. 2008-KO-1527.
    Supreme Court of Louisiana.
    March 4, 2009.
   In re Robinson, Wilbert J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 04-3918; to the Court of Appeal, Fifth Circuit, No. 08-KA-25.

Denied.

GUIDRY, J., recused.


text:
    STATE of Louisiana v. Vawn BORDEN.
    No. 2008-KO-1528.
    Supreme Court of Louisiana.
    March 4, 2009.
   In re Borden, Vawn; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 02-6205; to the Court of Appeal, Fifth Circuit, No. 07-KA-396.

Denied.


text:
    STATE of Louisiana v. Paul A. JAMES, Jr.
    No. 2008-K-1545.
    Supreme Court of Louisiana.
    March 4, 2009.
   In re James, Paul A. Jr.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 405403-1; to the Court of Appeal, First Circuit, No. 2007 KA 2400.

Denied.


text:
    STATE of Louisiana v. Malcolm T. PERKINS.
    No. 2008-K-1675.
    Supreme Court of Louisiana.
    March 4, 2009.
   In re Perkins, Malcolm; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 412-242; to the Court of Appeal, Fourth Circuit, No. 2008-KA-0078.

Denied.

JOHNSON, J., would grant.


author: WEIMER, J.,

text:
    Jerry C. HILL v. Johnny B. ROSS, Jr.
    No. 2009-OC-0333.
    Supreme Court of Louisiana.
    March 4, 2009.
   In re Ross Jr., Johnny B.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 006-13711; to the Court of Appeal, Fourth Circuit, No. 008-CA-1006.

Denied.

WEIMER, J.,

additionally concurs with reasons. Although Mr. Ross spends much of his application arguing the merits of the custody issue, the Orleans Parish court did not deny his petition for custody on the merits. Rather, that court merely denied his petition on the ground that proceedings were pending in West Baton Rouge Parish. Since that time, the West Baton Rouge Parish court has transferred the case to Orleans Parish. Thus, the Orleans Parish court can now reach the merits of Mr. Ross’ custody petition provided he properly provokes a hearing in the Orleans Parish court.


text:
    Stephanie Mayoral ARMOND v. Kenneth C. ARMOND, Jr.
    No. 2009-CJ-0410.
    Supreme Court of Louisiana.
    March 4, 2009.
   In re Armond, Stephanie Mayoral;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2008-13202; to the Court of Appeal, Fourth Circuit, No. 2009-C-0193.

Denied.

KIMBALL, C.J., would grant.


text:
    STATE of Louisiana v. Gwendolyn ANTHONY.
    No. 2009-KK-0448.
    Supreme Court of Louisiana.
    March 4, 2009.
   In re Anthony, Gwendolyn; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 461-719; to the Court of Appeal, Fourth Circuit, No. 2009-K-0162.

Denied.


text:
    STATE ex rel. Henry F. WEBER v. STATE of Louisiana.
    No. 2009-KH-0352.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Weber, Henry F.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 416-357; to the Court of Appeal, Fourth Circuit, No. 2008-K-1465.

Transferred to district court. The application for post-conviction relief and memorandum in support of post-conviction relief is transferred to the district court with instructions to the district court judge to act on relator’s application, which, as shown by Inmate’s Request for Legal/Indigent Mail receipt, was submitted. The district court is ordered to provide this Court with a copy of its judgment. A copy of the application is attached.


text:
    STATE ex rel. Freddie BURRELL v. STATE of Louisiana.
    No. 2009-KH-0359.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Burrell, Freddie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 269-172.

Transferred to district court. Relator represents that the district court has failed to act timely on an application for post-conviction relief filed on or about July 7, 2008. If relator’s representation is correct, the district court is ordered to consider and act on the application. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    In re Ahmad Raheem MUHAMMAD.
    No. 2008-OB-2669.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Muhammad, Ahmad Raheem;— Plaintiff; Applying For Motion to Deem Matters Admitted, to Compel the Louisiana Disciplinary Board and to Continue Disciplinary Proceedings Pending Conclusion of All Appeals in Accordance With Rule XIX § 19 c. Office of the Disciplinary Board, Nos. 02-DB-131, 04-DB-071, 05-DB-056, 05-DB-071.

Motion Denied.


text:
    Vera May Burton ZENO v. COLONIAL MORTGAGE AND LOAN CORPORATION.
    No. 2009-C-0005.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Colonial Mortgage and Loan Corporation; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 599-996; to the Court of Appeal, Fifth Circuit, No. 08-CA-246.

Not considered, not timely filed.

GUIDRY, J., recused.


text:
    Louis J. NORMAND, Jr. and Kimberly Normand v. ST. TAMMANY PARISH SERVICE DISTRICT NO. 1, d/b/a St. Tammany Parish Hospital, d/b/a St. Tammany Parish Physicians’ Network, Dr. Charles Baier, M.D., Jamie Talley and St. Paul Fire and Marine Insurance Company.
    No. 2009-CC-0056.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Baier Dr., Charles; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, Nos. 2002-15080, 2003-15092; to the Court of Appeal, First Circuit, No. 2008 CW 1839.

Not considered. Not timely filed. See S.Ct. Rule X, section 5.


text:
    STATE ex rel. Bryin Scott LANDRY v. STATE of Louisiana.
    No. 2008-KH-676.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Landry, Bryin Scott; — Plaintiff; Applying for Reconsideration of this Court’s action dated December 12, 2008; Parish of Calcasieu, 14th Judicial District Court Div. A, No. 4555-04; to the Court of Appeal, Third Circuit, No. KH 07-01389.

Denied.


text:
    STATE ex rel. Ronald J. LETULIER v. Burl CAIN, Warden.
    No. 2008-KP-0227.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Letulier, Ronald J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. G, No. 96-170,586.

Denied.


text:
    STATE of Louisiana v. Joseph SMITH, Jr.
    No. 2008-KP-0442.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Smith, Joseph Jr.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 442-321; to the Court of Appeal, Fourth Circuit, No. 2007-K-1413.

Denied.

JOHNSON, J., would grant.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Henry APARICIO.
    No. 2008-KP-0531.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Aparicio, Henry; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 415254; to the Court of Appeal, First Circuit, No. 2007 KW 2464.

Denied.


text:
    STATE of Louisiana v. Louis PRESTON, Jr.
    No. 2008-KP-0620.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Preston, Louis Jr.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. A, No. 866755; to the Court of Appeal, First Circuit, No. 2007 KW 2357.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. August VARNADO.
    No. 2008-K-1158.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Yarnado, August; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. A, No. 05CR893287; to the Court of Appeal, First Circuit, No. 2007 KA 2235.

Denied.


text:
    STATE ex rel. Richard TYLER v. STATE of Louisiana.
    No. 2008-KH-1204.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Tyler, Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 96-490; to the Court of Appeal, Fifth Circuit, No. 08-KH-243.

Denied.


text:
    STATE ex rel. Todd LUCAS, Sr. v. STATE of Louisiana.
    No. 2008-KH-1260.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Lucas, Todd Sr.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. C, No. 391058; to the Court of Appeal, First Circuit, No. 2008— KW -0191.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

WEIMER, J., recused.


text:
    STATE ex rel. Michael BROWN v. STATE of Louisiana.
    No. 2008-KH-1261.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Brown, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 97-365; to the Court of Appeal, Fifth Circuit, No. 08-KH-361.

Denied. Repetitive. Cf La.C.Cr.P. art 930.4(D)


text:
    STATE ex rel. Gregory GREEN v. STATE of Louisiana.
    No. 2008-KH-1263.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Green, Gregory; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 02-86-0294; to the Court of Appeal, First Circuit, No. 2007 KW 1195.

Denied.


text:
    STATE ex rel. Frank GRIFFIN v. STATE of Louisiana.
    No. 2008-KH-1264.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Griffin, Frank; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 81307; to the Court of Appeal, First Circuit, No. 2004 KW 0163.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Terry D. BARNES v. STATE of Louisiana.
    No. 2008-KH-1265.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Barnes, Terry D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 256,718; to the Court of Appeal, Third Circuit, No. KH 08-00253.

Denied.


text:
    Ronald E. COLEMAN v. Jeffery TRAVIS, Warden.
    No. 2008-CI-1266.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Coleman, Ronald E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. A, No. 310,797; to the Court of Appeal, First Circuit, No. 2007 CW 2473.

Denied.


text:
    STATE ex rel. Authur WILLIAMS v. STATE of Louisiana.
    No. 2008-KH-1280.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Williams, Authur; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 396-904; to the Court of Appeal, Fourth Circuit, No. 2008-K-0450.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. John HARRISON v. STATE of Louisiana.
    No. 2008-KH-1281.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Harrison, John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 409-642; to the Court of Appeal, Fourth Circuit, No. 008-K-0436.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    Gregory NAVARRE v. Warden Burl CAIN, et al.
    No. 2008-CI-1290.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Navarre, Gregory; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 554,839; to the Court of Appeal, First Circuit, No. 2008 CW 0285.

Denied.


text:
    STATE ex rel. Lionell DAVIS v. STATE of Louisiana.
    No. 2008-CI-1291.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Davis, Lionell; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 565365; to the Court of Appeal, First Circuit, No. 2008 CW 0674.

Denied.


text:
    STATE ex rel. Curtis Ray DAVIS, II v. STATE of Louisiana.
    No. 2008-KH-1293.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Davis, Curtis Ray II; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 151,815; to the Court of Appeal, Second Circuit, No. 43531-KH.

Denied.


text:
    STATE ex rel. Dave EDWARDS v. STATE of Louisiana.
    No. 2008-KH-1296.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Edwards, Dave; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 414-658; to the Court of Appeal, Fourth Circuit, No. 2008-K-0578.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Eliza CLARK v. STATE of Louisiana.
    No. 2008-KH-1299.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Clark, Eliza; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 101,042; to the Court of Appeal, Third Circuit, No. KH 08-00058.

Denied.


text:
    STATE ex rel. Odis David SMITH v. STATE of Louisiana.
    No. 2008-KH-1307.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Smith, Odis David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 98-404; to the Court of Appeal, Fifth Circuit, No. 08-KH-407.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Ricky D. SMITH v. STATE of Louisiana.
    No. 2008-KH-1309.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Smith, Ricky D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. 666-2005; to the Court of Appeal, Third Circuit, No. KH 08-00205.

Denied.


text:
    STATE ex rel. Bryan WILLIAMS v. STATE of Louisiana.
    No. 2008-KH-1315.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Williams, Bryan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR-867-05; to the Court of Appeal, Third Circuit, No. 07-1224.

Denied.


text:
    STATE ex rel. Stephen A. TWEEDLE v. STATE of Louisiana.
    No. 2008-KH-1331.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Tweedle, Stephen A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, No. 61626; to the Court of Appeal, Third Circuit, No. KH 07-01594.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Edward J. BOURGEOIS v. STATE of Louisiana.
    No. 2008-KH-1332.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Bourgeois, Edward J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, Nos. 98-313, 98-4873, 02-1662; to the Court of Appeal, Fourth Circuit, No. 2008-K-0523.

Denied.


text:
    STATE of Louisiana v. Jesse Tremel STEWART.
    No. 2008-KO-1343.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Stewart, Jesse Tremel; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 231,633; to the Court of Appeal, Second Circuit, No. 43,149-KA.

Denied.


text:
    STATE of Louisiana v. Lukas LEMEUNIER.
    No. 2008-K-1403.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Lemeunier, Lukas;- — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 03-6180; to the Court of Appeal, Fifth Circuit, No. 07-KA-230.

Denied.


text:
    STATE of Louisiana v. Derrick ALLEN.
    No. 2008-KO-1465.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Allen, Derrick; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-04-828; to the Court of Appeal, First Circuit, No. 2007 KA 1688.

Denied.


text:
    STATE of Louisiana v. George KELLY.
    No. 2008-KO-1482.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Kelly, George; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 465-111; to the Court of Appeal, Fourth Circuit, No. 2008-KA-0200.

Denied.


text:
    STATE of Louisiana v. Lester NUNEZ, Jr.
    No. 2008-KD-2512.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Nunez, Lester Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, Nos. 326-006, 327-212, 213, 214, 325-523, 327-221.

Denied.


text:
    Robert Douglas HAYDEL, Jr. v. Tammy Theriot Frank Bonner HAYDEL.
    No. 2008-C-2873.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Haydel, Tammy Theriot Frank Bonner; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Terre-bonne, 32nd Judicial District Court Div. A, No. 149,457; to the Court of Appeal, First Circuit, No. 2008 CA 0245.

Denied.

KIMBALL, C.J., would grant.

JOHNSON, J., would grant.

KNOLL, J., would grant.


text:
    SUCCESSION OF Edward A. HORRELL, Sr.
    No. 2008-C-2880.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Coffer, Gaye H.; Horrell, Clare Younger; Horrell, Edward Jr.; Lecour, Marie Elise; — Other(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 93-11275; to the Court of Appeal, Fourth Circuit, No. 2007-CA-1533.

Denied.


text:
    SUCCESSION OF Edward A. HORRELL, Sr.
    No. 2008-C-2889.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Horrell, Walter J.; — Other; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, Nos. 93-11275, 93-11701; to the Court of Appeal, Fourth Circuit, No. 2007-CA-1533.

Denied.


text:
    Kimberly LAWHEAD v. LOUISIANA STATE BOARD OF PRACTICAL NURSE EXAMINERS.
    No. 2008-C-3005.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Lawhead, Kimberly; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2007-12629; to the Court of Appeal, Fourth Circuit, No. 2007-CA-1593.

Denied.


text:
    Rita H. Holzenthal Wife of/and Henry HOLZENTHAL, III, Gretel Holzenthal, Cecelia M. Holzenthal Wife of/ and Henry W. Holzenthal, Patricia A. Stanley Wife of/and George E. Thomas and Monica S. Espinel Wife of/and Luis F. Espinel v. SEWERAGE AND WATER BOARD OF NEW ORLEANS Carlo R. Galan, M.D., Gwendolyn D. Redus, Billye B. Ber and Maxine Miller v. Sewerage & Water Board of New Orleans Jean Feran Wife of/and Fred Feran, Mary Susan Hunt, Mary Sharett Wife of/and Freddie Sharett, Penelope Sheffield, Elise A. Boyer and Cheryl L. Squire v. Sewerage & Water Board of New Orleans.
    No. 2009-C-0006.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Sewerage and Water Board of New Orleans; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. K, Nos. 2001-16969, 2001-16972, 2001-16984; to the Court of Appeal, Fourth Circuit, Nos. 2008-CA-0493, 2008-CA-494, 2008-CA-0495.

Denied.

JOHNSON, J., would grant.

VICTORY, J., would grant.


text:
    ANR PIPELINE COMPANY v. LOUISIANA TAX COMMISSION, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russell R. Gaspard, Member of the Louisiana Tax Commission.
    No. 2009-C-0025.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re ANR Pipeline Company; Southern Natural Gas Company; Tennessee Gas Pipeline Company; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 468,417 & Consol. Cases; to the Court of Appeal, First Circuit, No. 2007 CA 2282.

Denied.

WEIMER, J., recused.


text:
    ANR PIPELINE COMPANY v. LOUISIANA TAX COMMISSION, Malcolm B. Price, Jr., Chairman of the Louisiana Tax Commission, Kenneth P. Naquin, Jr., Member of the Louisiana Tax Commission, and Russell R. Gaspard, Member of the Louisiana Tax Commission
    And All Other Consolidated Cases.
    No. 2009-C-0027.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re ANR Pipeline Company; Southern Natural Gas Company; Tennessee Gas Pipeline Company; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 468-M17; to the Court of Appeal, First Circuit, No. 2008-CA-1148 through 2008-CA-1162.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Kendell WASHINGTON.
    No. 2009-KK-0029.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Washington, Kendell; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 477-047; to the Court of Appeal, Fourth Circuit, No. 2008-K-1245.

Denied.


text:
    TEXAS GAS EXPLORATION CORPORATION v. LAFOURCHE REALTY COMPANY, et al.
    No. 2009-CC-0030.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Energen Resources Corporation; — Other; Applying for Supervisory and/or Remedial Writs, Parish of La-fourche, 17th Judicial District Court Div. D, Nos. 52468, 59436, 65168, 79707, 54765, 59435, 65167, 79708, 79709; to the Court of Appeal, First Circuit, No. 2008 CW 1355.

Denied.


text:
    Edward J. OWENS v. SCOTTSDALE INSURANCE COMPANY, Aparicio, Walker and Seeling, Inc., Burns & Wilcox of La., Ltd. and ABC Insurance.
    No. 2009-CC-0032.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Aparicio, Walker and Seeling Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 2006-13974; to the Court of Appeal, First Circuit, No. 2008 CW 1874.

Denied.


text:
    Leroy BUTLER v. GILCHRIST CONSTRUCTION COMPANY, LLC.
    No. 2009-CC-0035.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Gilchrist Construction Company, LLC; Gray Insurance Company;- — Defendants); Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation, District 5, No. 08-03522; to the Court of Appeal, First Circuit, No. 2008 CW 1672.

Denied.

TRAYLOR, J., would grant the writ.

GUIDRY, J., would grant the writ.


text:
    Callie Mae Williams SELF, et al. v. FLEMING CONSTRUCTION COMPANY, et al.
    No. 2009-CC-0038.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Fleming Construction Company et al.; Gray Insurance Company; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2007-04174; to the Court of Appeal, Fourth Circuit, No. 2008-C-1305.

Denied.

TRAYLOR, J., would grant the writ.

GUIDRY, J., would grant the writ.


text:
    Warren LESTER, Jr., et al. v. EXXON MOBIL CORPORATION, et al.
    No. 2009-CC-0039.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Lester Jr., Warren et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 02-19657; to the Court of Appeal, Fourth Circuit, No. 2008-C-1039.

Denied.


text:
    Edwin A. STOUTZ, Jr. v. GREAT NORTHERN INSURANCE COMPANY, et al.
    No. 2009-CC-0040.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Gillis Ellis & Baker Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 07-8580; to the Court of Appeal, Fourth Circuit, No. 2008-C-1445.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.

WEIMER, J., would grant.


text:
    Maria Charlotte LOWREY v. Dr. Blaine M. BORDERS, et al.
    No. 2009-C-0043.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Lowrey, Maria Charlotte; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. C, No. 02-2374; to the Court of Appeal, Second Circuit, No. 43,-675-CA.

Denied.


text:
    STATE of Louisiana v. Derrick WILLIAMS.
    No. 2009-KK-0045.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 11-07-0308; to the Court of Appeal, First Circuit, No. 2008 KW 2183.

Denied.


text:
    Danielle G. Weintraub, Wife of/and Alan S. WEINTRAUB v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 2009-C-0046.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Weintraub et al., Danielle G.; Weintraub, Alan S.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. K, No. 2006-6991; to the Court of Appeal, Fourth Circuit, No. 2008-CA-0351.

Denied.


text:
    John M. DUHE, Jr., et al. v. TEXACO, INC., et al.
    No. 2009-C-0050.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Texaco Exploration & Production Inc.; Texaco Inc. et al.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. D, Nos. 88,707, 86,848; to the Court of Appeal, Third Circuit, Nos. 08-655, 08-656.

Denied.


text:
    Melanie and Chad FARBER v. AMERICAN NATIONAL PROPERTY & CASUALTY COMPANY.
    No. 2009-C-0053.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re American National Property & Casualty Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 2007-247; to the Court of Appeal, Third Circuit, No. 08-821.

Denied.

VICTORY, J., would grant.

WEIMER, J., would grant.


text:
    Randy STANFORD, et al. v. TOWN OF BALL, et al.
    No. 2009-C-0055.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Ball, Town of et al.; Hebron, Roy Mayor; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 178,690; to the Court of Appeal, Third Circuit, No. 08-800.

Denied.

KNOLL, J., would grant.


text:
    Jason BIGELOW and Jennifer Lohmann-Bigelow v. CRESCENT TITLE, L.L.C., Robert Bergeron, Danny Douglass, Charles A. Lagarde, Jr., State Farm Fire and Casualty Company, Robert and Carla Rainey, and Iberia Bank.
    No. 2009-C-0058.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Bigelow, Jason et al.; Lohmann-Bigelow, Jennifer; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2006-41; to the Court of Appeal, Fourth Circuit, No. 2008-CA-0932.

Denied.

JOHNSON, J., would grant.

KNOLL, J., would grant.


text:
    Kristy L. WRIGHT v. Joey J. GOTTE, et al.
    No. 2009-C-0060.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Everest Security Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. C-604-03; to the Court of Appeal, Third Circuit, No. 08-174.

Denied.

VICTORY, J., would grant.


text:
    Jacob FLOYD, et al. v. PALM HARBOR HOMES, INC., et al.
    No. 2009-C-0064.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Palm Harbor Homes, Inc., et al.; Palm Harbor Manufacturing, L.P.; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. B, No. 69,294-B; to the Court of Appeal, Third Circuit, No. 08-809.

Denied.


text:
    Perry LANCLOS v. CROWN DBL, INC., et al.
    No. 2009-C-0065.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Sabine Storage & Operations Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. A, No. 69614; to the Court of Appeal, Third Circuit, No. 08-813.

Denied.


text:
    Antonio J. VELAZQUEZ, et al. v. LANDCOAST INSULATION, INC.
    No. 2009-C-0066.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Imaceo Insulation Inc.; Landcoast Insulation Inc. f/n/a; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. D, No. 109988-D; to the Court of Appeal, Third Circuit, No. 08-804.

Denied.


text:
    Gaynelle ISAAC, et al. v. Louise AMOS-GOMBALO, M. D., et al.
    No. 2009-C-0067.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Isaac, Gaynelle et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. C, No. 2005-5387-C; to the Court of Appeal, Third Circuit, No. 08-840.

Denied.

JOHNSON, J., would grant.


text:
    Lucretia PECANTTE-BURTON v. Lionel COLLINS.
    No. 2009-C-0068.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Pecantee-Burton, Lucretia;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. E, No. 109797-E; to the Court of Appeal, Third Circuit, No. 08-258.

Denied.


text:
    Collette Josey COVINGTON, et al. v. MCNEESE STATE UNIVERSITY, et al.
    No. 2009-C-0069.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Louisiana State of; McNeese State University et al.; University of Louisiana System Bd. of Sup.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 2001-2356; to the Court of Appeal, Third Circuit, No. 08-505.

Denied.


text:
    Shirley G. LOCKMAN v. TOWN OF MARINGOUIN.
    No. 2009-C-0071.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Lockman, Shirley G.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Worker’s Comp. Dist. 5, No. 05-07061; to the Court of Appeal, First Circuit, No. 2007 CA 0615.

Denied.


text:
    Rebecca BROWN v. STATE OF LOUISIANA, et al.
    No. 2009-C-0072.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Huey P. Long Medical Center-Pineville; Louisiana State of; LSU Medical Center Health Care Services Division; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Rap-ides, 9th Judicial District Court Div. F, No. 215,426; to the Court of Appeal, Third Circuit, No. 08-273.

Denied.


text:
    Mary CAVAZOS v. SOUTHERN CONSTRUCTION SUPPLY, INC.
    No. 2009-C-0073.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Cavazos, Mary; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation Dist. 4, No. 04-01213; to the Court of Appeal, Third Circuit, No. 08-863.

Denied.

JOHNSON, J., would grant.

TRAYLOR, J., would grant.


text:
    Amy BROSSETT, et al. v. Melody HOWARD, et al.
    No. 2009-C-0077.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re Howard, Melody et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. C, No. 193,801; to the Court of Appeal, Third Circuit, No. 08-535.

Denied.


text:
    STATE of Louisiana v. Terry MCELVEEN, et al.
    No. 2009-KK-0126.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 434-604; to the Court of Appeal, Fourth Circuit, No. 2008-K-1574.

Denied.

KNOLL, J., would grant as to the armed robberies that occurred on 8/23/02 and 9/2/02, otherwise deny.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Terry MCELVEEN and Thatcher McElveen.
    No. 2009-KK-0495.
    Supreme Court of Louisiana.
    March 6, 2009.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 434-604; to the Court of Appeal, Fourth Circuit, No. 2009-K-0261.

Denied on the showing made.

VICTORY, J., would grant the writ.


text:
    LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN-SELF INSURERS FUND v. LOUISIANA INSURANCE GUARANTY ASSOCIATION.
    No. 2009-C-0023.
    Supreme Court of Louisiana.
    March 6, 2009.
   Prior report: La.App., 998 So.2d 817.

In re Louisiana Insurance Guaranty Association; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Winn, 8th Judicial District Court Div. A, No. 39193-05; to the Court of Appeal, Second Circuit, No. 43,615-CA.

Granted.