author: |, CHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Kenneth HALL.
    No. 2002-KA-1098.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.

      Harry F. Connick, District Attorney, Julie C. Tizzard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Arcenious F. Armond, Jr., Gretna, LA, for Kenneth Hall.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge DAVID S. GORBATY).
   |, CHARLES R. JONES, Judge.

Kenneth Hall appeals his convictions for distribution of heroin within one thousand feet of a schoolyard, and possession of more than twenty eight grams but less than two hundred grams of cocaine. On the former conviction, he was sentenced to life imprisonment. On the latter conviction, he was sentenced to ten years imprisonment without benefits. This appeal follows.

Procedural History

Hall was indicted by the grand jury for possession with intent to distribute heroin within one thousand feet of a schoolyard, in violation of La. R.S. 40:981.3, and possession of more than twenty-eight grams but less than two hundred grams of cocaine, in violation of La. R.S. 40:967. After the district court denied his motion to suppress evidence and he elected a bench trial, the court rendered its verdict finding Hall guilty as charged on both counts The district court denied Hall’s motion for new trial and motion for post judgment verdict of acquittal, and imposed sentence. Hall was sentenced to life imprisonment at hard labor without Lthe benefit of probation or suspension of sentence on the heroin charge, and to ten years at hard labor without benefit of probation, parole, or suspension of sentence on the cocaine charge. Hall orally objected to the sentence and moved for an appeal. A written motion for appeal was filed.

Facts

On November 11, 1996, Officer Sanford Johnson was conducting surveillance in the area of 2100 Whitney Avenue. The officer was undercover, observing narcotics trafficking in the Fischer Housing Development. Officer Johnson testified that he observed numerous hand to hand transactions that day. He testified that he observed Kenneth Hall walk up to where the traffickers were standing. Hall spoke with a few of the subjects and then walked into an apartment. Hall later called a few of the subjects located outside the apartment to come inside. The subjects went into the apartment and exited a short time later. The officer also observed an elderly man approach the group. The man told the subjects that they were ruining the neighborhood. Approximately thirty minutes later, Hall left the area. During the surveillance, the officer observed Hall engage in hand-to hand transactions with persons in vehicles who would stop at the intersection.

Officer Johnson testified that a second surveillance was conducted on November 13, 1996. On that day, the officer observed Euric Vincent and Terrell Jones looking up and down the street as if they were waiting for someone. Approximately forty-five minutes later, a white vehicle drove up. Hall exited the vehicle and approached Vincent and Jones. Hall gave Vincent a brown paper bag and then left the area. Vincent and Jones took some items out of the bag and put the objects in their pockets. They placed the bag in a support pipe in the building at 2100 Whitney Avenue. The officer then observed Vincent and Jones engage in |3narcotics transactions. After a few hours, a vehicle approached Vincent and Jones. The officer heard Vincent say “I’m about to go get that man, because ain’t nobody going to be selling no drugs here but us.” After leaving the area on foot, Vincent returned in a vehicle. When he exited the vehicle, the officer saw that Vincent had a gun in his hand. Vincent then placed the gun in the trunk. Once he returned to where Jones was standing, he continued the hand to hand transactions. When the trafficking stopped, and the officer realized that Hall would not be returning, the officer ended surveillance for the day. Officer Johnson called for a takedown unit to surround the area.

Officer William Marks, who assisted with the surveillance on November 11, 1996, testified and corroborated the testimony of Officer Johnson.

Officer Marcel Foxworth testified that he assisted in the surveillance of the 2100 block of Whitney Avenue on November 13, 1996. The Officer also corroborated the testimony of Officer Johnson. Officer Foxworth further testified that after observing the transactions of the subjects, the officers believed the situation to be dangerous when Vincent left the area and returned with a gun. The officers decided to arrest Vincent and Jones, and radioed for assistance. Officer Foxworth testified that he retrieved the paper bag from the support pipe and found thirty-eight packets of heroin in the bag. A handgun with thirteen rounds and a glass tube with white residue were found in Vincent’s vehicle. Two hundred ten dollars were found on Vincent.

Officer Marks further testified that he assisted in the surveillance of Hall on the afternoon of November 15,1996. He testified that he followed a van being driven by Dorothy Hartford into the Trace Apartment Complex, where she got out of the driver’s side of the vehicle and Hall exited from the rear. Hall and Hartford | ¿walked to an upstairs apartment, and then left with another woman, Erica Ware. Hall carried a bag from the apartment and all three drove off in the van. Sergeant Joel Poretto testified that he conducted an investigative stop of the van on General De Gaulle, believing that Hall was returning to the Fischer Housing Development with more narcotics.

Officer Marks further testified that he was parked at the intersection of De Gaulle and Whitney while the stop by Sergeant Poretto was being conducted. Officer Marks testified that he heard Sergeant Poretto request assistance over the radio and saw the blue van going down General De Gaulle at a high rate of speed. The van turned onto Whitney and drove across a driveway into a grassy area where children were playing. Officer Marks pursued the vehicle and saw it stop. Dorothy Hartford jumped out of the vehicle with a bag and started to run. After being ordered to stop by the officer, Hartford complied and was placed under arrest. The officer advised Hartford of her rights, which she indicated that she understood. At that time, the officer asked Hartford about the bag. Hartford stated that the bag contained drugs and money, which she claimed belonged to Hall. The officer opened the bag and found one hundred and seventeen grams of cocaine and eighty-three hundred dollars in cash in the bag. When Hall exited the van, Sergeant Poretto testified that he observed a bag of marijuana on the floor of the vehicle. Hall was then placed under arrest.

Errors Patent

A review of the record reveals errors in the sentences imposed by the district court on Hall for his conviction for possession with the intent to distribute heroin within one thousand feet of a schoolyard. The district court sentenced Hall to life imprisonment at hard labor without benefit of probation or suspension of sentence. |RHowever, La. R.S. 40:966 and La. R.S. 40:981.3 also provide that the sentence is to be served without the benefit of parole, and requires the imposition of a fine of $50,000. La. R.S. 40:967, which provides for possession of more than twenty-eight grams, but less than two hundred grams of cocaine also mandates the imposition of a fine between $50,000 and $150,000. The district court failed to impose fines in conjunction with both sentences. Therefore, the sentences are illegally lenient. Heretofore, this Court has followed the dictates of State v. Fraser, 484 So.2d 122 (La.1986), which held that a sentencing error favorable to the defendant that is not raised by the State on appeal may not be corrected. However, the legislature recently enacted La. R.S. 15:301.1, which addresses those instances wherein sentences contain statutory restrictions on parole, probation or suspension of sentence. Paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. Moreover, in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Supreme Court found that paragraph A self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the ^failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the district court’s failure to specify that Hall’s sentence be served without benefit of parole, and the imposition of the mandatory fine of $50,000. The correction is statutorily effected. La. R.S. 15:301.1A.

However, as La. R.S. 40:967 provides a range of fines to be imposed, the matter must be remanded for the imposition of the fine on the cocaine charge.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, Hall contends that the district court erred by denying him the right to equal protection of the laws as guaranteed by the Fourteenth Amendment of the United States Constitution through the systematic exclusion of African-Americans from serving as grand jury forepersons. However, such an argument must first be presented in a motion to quash the indictment on that basis, or it is waived. State v. Woodberry, 2002-0994 (La.App. 4 Cir. 6/5/02), 820 So.2d 638; State v. Juarbe, 2001-2250 (La.App. 4 Cir. 7/31/02), 824 So.2d 1240. Hall did not file a motion to quash and is, therefore, precluded from raising this issue on appeal. Deloch v. Whitley, 96-1901 (La.11/22/96), 684 So.2d 349; State v. Brooks, 98-0693 (La.App. 4 Cir. 7/21/99), 758 So.2d 814.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

Hall further argues that his counsel was ineffective for failing to file a motion to quash the bill of indictment.

|7A party claiming ineffective assistance of counsel must show that 1) the counsel’s performance was deficient and 2) the client was prejudiced by the deficiency. State v. Jackson, 97-2220 p. 8 (La.App. 4 Cir.5/12/99), 733 So.2d 736, 741; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir.1986). Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court, where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986).

The appellate record fails to demonstrate that Hall was prejudiced by the actions of his trial counsel, and, therefore, lacks sufficient evidence for adequate review by this Court. However, he may raise this claim in an application for post conviction relief wherein an evidentiary hearing can be held on the issue.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 3

Hall also contends that the life sentence imposed by the district court is excessive because it does not provide for a determinate period of time to be served before Hall would be eligible for parole. However, Hall fails to recognize that the life sentence for the heroin charge is to be served without the benefit of parole. See La. R.S. 40:966 and La. R.S. 40:981.3. While the district court failed to state that the sentence was to be served without parole, the sentence is automatically | ¡^corrected to provide that the sentence is to be served without parole. See Williams, 800 So.2d at 799. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 4

Hall maintains that the district court erred when it allowed the State to introduce inflammatory and irrelevant hearsay evidence. Specifically, Hall contends' that the district court should not have allowed Officer Marks to testify about the statement made by Dorothy Hartford concerning the ownership of the drugs and money in the bag. He also argues that the district court erred in allowing the State to introduce the items found in Vincent’s vehicle.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Relevant evidence is generally admissible. La. C.E. art. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.

A trial court’s ruling as to relevancy will not be disturbed absent a clear abuse of discretion. State v. Lewis, 97-2854 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004; State v. Badon, 95-0452 (La.App. 4 Cir. 11/16/95), 664 So.2d 1291. A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. See State v. Lambert, 98-0730 (La.App. 4 Cir. 11/17/99), 749 So.2d 739; State v. Brooks, 98-0693 (La.App. 4 Cir. 7/21/99), 758 So.2d 814.

Generally, evidence of other crimes, wrongs or acts is inadmissible, with the exception under La. C.E. article 404(B)(1) for admission of evidence of other IflCrimes “... when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” State v. Burton, 98-0096 pp. 6-7 (La.App. 4 Cir. 9/1/99), 746 So.2d 74, 78-79. Evidence of other crimes is admissible when it is related to and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to it. State v. Parker, 96-1852 (La.App. 4 Cir. 6/18/97), 696 So.2d 599; State v. Brewington, 601 So.2d 656 (La.1992).

However, evidence may be admissible under La. C.E. art. 404(B) as integral act evidence, that is, evidence so “related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it.” Brewington, 601 So.2d at 657. The test for admissibility of integral act evidence is not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness. State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074, 1076. The res gestae doctrine encompasses not only spontaneous utterances and declarations made before and after commission of the crime, but also testimony of witnesses regarding what they heard or observed before, during, or after the commission of the crime if a continuous chain of events is evident under the circumstances. Id.

In Colomb, police arrested defendant after seeing him standing at the open door of his van — stopped in the middle of the street in area known for drug trafficking— with five or six known drug traffickers gathered around him. Defendant was arrested for possession of a firearm by a convicted felon and possession of marijuana. At his trial on the firearm charge, officers testified that after they found the firearm on the floorboard of the van, defendant lifted up his | t nshirt to reveal a bag of marijuana, which he admitted belonged to him. The appellate court reversed defendant’s conviction, holding that evidence of the marijuana, found after the discovery of the gun, did not relate to conduct forming an integral part of the firearm offense, i.e., the res gestae. The appellate court further stated that even if the defendant’s drug possession constituted part of the res gestae, it could discern no relevant reason, other than prejudice, for its admission into evidence. The Louisiana Supreme Court subsequently reversed the appellate court, holding that the evidence of defendant’s marijuana possession contemporaneous with the discovery of the firearm in his van “provided not only narrative completeness to a case which began as a narcotics stop but also formed an integral part of the context facts in which jurors evaluated the state’s case for defendant’s exercise of dominion and control over the weapon.” 98-2813 at p. 4, 747 So.2d at 1076. The court found the undisputed evidence of the defendant’s marijuana possession in a high crime area was highly probative in that it was fully consistent with the officers’ disputed testimony that the defendant had admitted that he possessed his wife’s gun for protection. The court held that, given the high probative value of the drug possession evidence, it did not need to decide whether integral act evidence presented under authority of La. C.E. art. 404(B) must invariably pass the balancing test of La. C.E. art. 403.

In the case at bar, Hall argues that the statement made by Dorothy Hartford to Officer Marks about the ownership of the cocaine should not have been admitted. Hall contends that the statement was inadmissible hearsay. However, the statement was made during the apprehension of Hall and Hartford. Officer Marks testified that he assisted in the apprehension of Hartford. The officer testified that Hartford was carrying the bag he had seen Hall holding earlier that |71day. After she was apprehended, Hartford told the officer that the bag contained cocaine and money that belonged to Hall. The statement was made during the attempted commission of the crime. Therefore, the district court did not err in admitting the statement.

Hall also suggests that the district court erred when the court allowed the State to introduce the items found in Vincent’s vehicle into evidence. The officers testified that Vincent’s vehicle was searched after his arrest on the second day of the surveillance. The officers further testified that a gun, ammunition, two beepers and a crack pipe were found in Vincent’s vehicle. These items were introduced into evidence at trial. While Hall did not have possession of these items, the search of Vincent’s vehicle and the seizure of these items were part of a continuous surveillance of Hall’s criminal actions. It can be argued that the items were found during the commission of the crimes with which Hall has been charged and convicted. As such, the items were properly introduced into evidence.

Further, even if the evidence should not have been admitted into evidence, such error was harmless, as the guilty verdicts in this case were unattributable to such error. State v. Castleberry, 98-1388, p. 23 (La.4/13/99), 758 So.2d 749. Officer Marks testified that he saw Hall in possession of the bag that contained the cocaine. Officers Foxworth and Johnson testified that they observed Hall provide Vincent and Jones with the brown paper bag, which was later determined to contain heroin. In addition, Officers Johnson and Marks testified that they observed Hall engage in hand to hand narcotics transactions.

There is no merit to this assignment of error.

I ^ASSIGNMENT OF ERROR NUMBER 5

Hall further suggests that he was deprived of his right to conflict free representation when his trial counsel continued to represent the co-defendants despite his acknowledgment of a conflict, and his ultimate withdrawal of representation of the co-defendants. Hall argues that his trial counsel was ineffective in failing to maintain separate representation of the defendant.

Generally, multiple representation does not violate the Sixth Amendment of the United States Constitution unless it results in a conflict of interest. State v. Kahey, 436 So.2d 475, 484 (La.1983). In State v. Lobato, 621 So.2d 103 (La.App. 2 Cir.1993), the defendant alleged a conflict resulting from his counsel’s failure to call his co-defendant as a witness. The court stated that a defendant failing to raise an objection to multiple representation prior to or during trial, "... must establish that an actual conflict of interest adversely affected his counsel’s performance in order to establish a claim.” However, conflicts of interest must be established by specific instances in the record. Id.; Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

In United States v. Abner, 825 F.2d 835 (5 Cir.1987), in which a defendant claimed that a conflict of interest resulted in his counsel’s failure to call a witness, the Fifth Circuit stated that a defendant must specifically name the testimony denied to the jury and how it negatively impacted the defendant. In a similar case citing Lobato, this Court held that a claim for conflict of interest that is both vague and speculative “is insufficient to impugn a criminal conviction.” State v. Holmes, 1999-0898 (La.App. 4 Cir. 11/8/00), 791 So.2d 669.

In the instant case, Donald Pinkston represented Hall at the trial level. The record indicates that Mr. Pinkston initially represented Hall and his three cojdefen-dants.13 When Mr. Pinkston acknowledged the possibility of a conflict between Hall and the co-defendants, he informed the district court that he would continue to represent Hall, and withdraw from his representation of the co-defendants. Michael Milton then indicated that he would represent Jones and Vincent. Anderson Council informed the district court that he would represent Hartford. Hall further argues that Mr. Milton and Mr. Council are either associates or partners with Mr. Pinkston. In spite of this argument, the record does not reflect a relationship, and only indicates that Pinkston represented the co-defendants when their counsel did not appear for hearings or status conferences. The record does not indicate whether Mr. Pinkston was making an appearance on behalf of the other attorneys, or was in fact representing the co-defendants himself.

Hall also contends that in the event that his trial counsel had not represented the co-defendants, Vincent and Jones, they would have been more willing to testify that they did not know Hall nor obtain heroin from him. However, the record is inadequate to determine whether trial counsel faded to maintain separate representation of Hall and/or, whether such failure was prejudicial to Hall.

This assignment of error is best considered in an application for post conviction relief wherein an evidentiary hearing can be held on the issue.

ASSIGNMENT OF ERROR NUMBER 6

Hall also contends that the State failed to produce sufficient evidence to support his convictions for possession of heroin with the intent to distribute within one thousand feet of a schoolyard, and possession of more than twenty-eight but less than two hundred grams of cocaine.

When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most | ufavorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, supra.

To support a conviction for possession of a controlled dangerous substance, the State must prove that the defendant knowingly and intentionally possessed the contraband, here cocaine in the amount of at least twenty-eight but less than two hundred grams. La. R.S. 40:967. The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support conviction. See State v. Trahan, 425 So.2d 1222, 1226 (La.1983); see also State v. Cann, 319 So.2d 396, 397 (La.1975). The mere presence of a defendant in the area where the narcotics were found is insufficient to prove constructive possession. See State v. Collins, 584 So.2d 356, 360 (La.App. 4 Cir.1991).

|1SA person not in physical possession of narcotics may have constructive possession when the drugs are under that person’s dominion and control. State v. Jackson, 557 So.2d 1034, 1035 (La.App. 4 Cir.1990). A person may be deemed to be in joint possession of a drug that is in the physical possession of another if he willfully and knowingly shares with the other the right to control it. State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971). Determination of whether a defendant had constructive possession depends on the circumstances of each case. Cann, 319 So.2d at 397 (La.1975). “In determining whether defendant exercised the requisite dominion and control the jury may consider his knowledge that illegal drugs are in the area, his relationship with one found to be in actual possession, his access to the area where drugs were found, his physical proximity to the drugs and the evidence that the area was frequented by drug users.” State v. Reaux, 539 So.2d 105, 108 (La.App. 4 Cir.1989). See also State v. Williams, 594 So.2d 476 (La.App. 4 Cir. 1992); State v. Kingsmill, 514 So.2d 599 (La.App. 4 Cir.1987); State v. Maresco, 495 So.2d 311 (La.App. 4 Cir.1986).

In the case at bar, Officer Marks testified that he observed Hall leave the apartment at Trace Apartment Complex with Hartford and another woman. Hall was carrying a bag. All three entered the van and left the area. Officer Marks testified that Hartford was holding the same bag when he apprehended her several minutes later. The bag contained a substance which appeared to be cocaine and eighty-three hundred dollars in cash.

Hall was also convicted of possession of heroin with intent to distribute within one thousand feet of a schoolyard, which requires that the state prove that he “knowingly” and “intentionally” possessed cocaine with the “intent to distribute”. State v. Williams, 594 So.2d 476, 478 (La.App. 4 Cir.1992). Specific |ifiintent to distribute may be established by proving circumstances surrounding defendant’s possession which give rise to a reasonable inference of intent to distribute. State v. Dickerson, 538 So.2d 1063 (La.App. 4 Cir.1989). In State v. Hearold, 603 So.2d 731 (La.1992), the Louisiana Supreme Court set forth five factors to consider in determining whether a party had the intent to distribute narcotics. Reversing the defendant’s conviction in that case, the court stated:

Intent is a condition of mind, which is usually proved by evidence of circumstances from which intent may be inferred. State v. Fuller, 414 So.2d 306 (La.1982); State v. Phillips, 412 So.2d 1061 (La.1982); La.Rev.Stat. 15:445. In State v. House, 325 So.2d 222 (La.1975), this court discussed certain factors which are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance. These factors include (1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.
In the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible. State v. Greenway, 422 So.2d 1146 (La.1982); State v. Harveston, 389 So.2d 63 (La.1980); State v. Willis, 325 So.2d 227 (La.1975).

Id. at pps. 735-736.

In State v. Cushenberry, 94-1206, p. 6, (La.App. 4 Cir. 1/31/95), 650 So.2d 783, 786, this Court described the Hearold factors as “useful” but held that the evidence need not “fall squarely within the factors enunciated to be sufficient for |17the jury to find that the requisite intent to distribute.” The issue of sufficiency relative to a purchase of narcotics with the alleged assistance of an intermediary was discussed by this Court in State v. Parker, 627 So.2d 210, 212 (La.App. 4 Cir.1993), as follows:

“Distribute” is defined in LSA-R.S. 40:961(13) as “to deliver a controlled dangerous substance ... ‘Distributor’ means a person who delivers a controlled dangerous substance.... ” “Deliver” is defined in LSA-R.S. 40:961(9) as “... the transfer of a controlled dangerous substance whether or not there exists an agency relationship.” In addition, jurisprudence has defined “deliver” as transferring possession or control. State v. Martin, 310 So.2d 544, 546 (La.1975); State v. Simon, 607 So.2d 793 (La.App. 1st Cir.1992), writ den., 612 So.2d 77 (La.1993).... A defendant may be guilty as a principal in the crime of distribution if he aids and abets in the distribution or indirectly counsels or procures another to distribute the controlled dangerous substance. State v. Parker, 595 So.2d 765 (La.App. 4th Cir.1992).
La.R.S. 14:24 defines principals as: “[A]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.... ” See State v. Brooks, 505 So.2d 714 (La.1987), cert. den. Brooks v. Louisiana, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987); State v. Watson, 529 So.2d 94 (La.App. 4th Cir.1988), writ den. 535 So.2d 740 (La.1989). To support a defendant’s conviction as a principal, the State must show that the defendant had the requisite mental state for the crime. Brooks; State v. Spotville, 583 So.2d 602 (La.App. 4th Cir.1991), writ den., 585 So.2d 577 (La.1991). Distribution of cocaine requires only general intent, and such intent is established by mere proof of voluntary distribution. State v. Chatman, 599 So.2d 335 (La.App. 1st Cir.1992).

In the present case, the officers testified that they observed Hall engage in several hand-to-hand transactions. The officers testified that they also observed Hall give Vincent and Jones a brown paper bag. Vincent and Jones took some of the items in the bag and put the items in their pockets. The officers then watched as Vincent and Jones placed the bag in a support pipe in the building at 2100 Whitney Avenue. When the officers retrieved the bag, they found it contained what appeared to be individual packets of heroin.

|1sThe State proved that Hall had possession of controlled dangerous substances and had the intent to distribute these substances. Prior to Officer Johnson’s testimony on July 1, 1998, the record reflects that stipulations (referred to as State’s Exhibit # 1 and # 2) were entered stating that expert members of the NOPD crime lab would testify that the substances in question tested positive for cocaine and heroin. The record also reflects that the amount of cocaine was over 100 grams and was within the prescribed amount of between twenty-eight and two hundred grams. However, the record does not reflect that Hall was within one thousand feet of a schoolyard when distributing heroin. While the state did enter into evidence a map showing Hall’s location with respect to the school, no testimony was given stating that Hall was within one thousand feet of a schoolyard. Since the stipulations failed to state Hall’s distance from the school, the State did not produce evidence sufficient to support Hall’s conviction on the heroin charge.

This assignment has merit.

DECREE

For the reasons stated herein, Kenneth Hall’s conviction for possession with the intent to distribute heroin within one thousand feet of a schoolyard is reversed, and the sentence vacated. His conviction for possession of more than twenty-eight grams but less than two hundred grams of cocaine is affirmed, and the matter remanded for the imposition of a fine on the cocaine charge.

REVERSED IN PART; AFFIRMED IN PART; SENTENCE VACATED AND REMANDED.

      . Eric Vincent and Terrell Jones were also named in count one of the indictment charging them with possession with intent to distribute heroin within one thousand feet of a schoolyard. Dorothy Hartford was named in count two charging her with possession of more than twenty-eight grams but less than two hundred grams of cocaine. Vincent and Jones pled guilty to an amended charge of possession of heroin and were sentenced to seven years at hard labor. The sentences were suspended and both were placed on three years active probation. Hartford pled guilty to an amended charge of possession of cocaine and was sentenced to seven years at hard labor. The sentence was suspended and she was placed on three years active probation.

      . 1999 LA. ACTS 94, effective August 15, 1999, embodied La.R.S. 15:301.1 which provides:
      A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.
      B. If a sentence is inconsistent with statutory provisions, upon the court's own motion or motion of the district attorney, the sentencing court shall amend the sentence to conform to the applicable statutory provisions. The district attorney shall have standing to seek appellate or supervisory relief for the purpose of amending the sentence as provided in this Section.
      C. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.
      D. Any amendment to any criminal sentence as authorized by the provisions of this Section shall be completed within one hundred eighty days of the initial sentencing.

      . In light of R.S. 15:301.1, this Court will not recognize the sentencing court’s failure to impose statutory restriction of benefits as patent error.


source: Caselaw Access Project

author: I JOAN BERNARD ARMSTRONG, Judge.

license: Public Domain

text:
    Alton CROWDEN v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS.
    No. 2002-CA-0736.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.

      Frank W. Roccaforte, Roccaforte & Rousselle, PLC, New Orleans, LA, for Plaintiff/Appellee.
    Ms. Micheál L. Penn, Assistant Attorney General, Richard P. Ieyoub, Attorney General, LA Dept, of Justice, Litigation Division, New Orleans, La, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS and Judge DAVID S. GORBATY).
   I JOAN BERNARD ARMSTRONG, Judge.

This is a workers’ compensation case. The Workers’ Compensation Judge (‘WCJ”) found that, due to an injury to the claimant’s right knee, thé claimant was temporarily totally disabled. The employer appeals.

The claimant, Alton Crowden, was an employee of the State of Louisiana Department of Public Safety and Corrections. For purposes of this appeal, it is undisputed Mr. Crowden suffered an on-the-job injury to his left knee on February 27, 1997. That left knee injury was treated by Dr. Ray Marrero, with surgery, casts, crutches, etc. Mr. Crowden complained to Dr. Marrero of right knee pain in February 1998. Subsequently, Dr. Marrero treated extensively the right knee as well. Mr. Crowden argued in the trial court that, due to the injury to his right knee, he was temporarily totally disabled from February 1998 through the time of trial. The WCJ agreed and found that Mr. Crowden was temporarily totally disabled from February 1998.

| ?The main issue raised on appeal by the State is whether the injury to Mr. Crowden’s right knee was caused by the on-the-job accident. Mr. Crowden’s theory, apparently accepted by the WCJ, is that, as a result of the surgery, casts, crutches, etc. for the injury to his left knee, his weight was shifted to his right leg with the result that previously existing, but asymptomatic, joint degenerative disease in his right knee was aggravated, required extensive treatment, and became disabling. The State argues that the WCJ was wrong as a matter of fact in finding that the on-the-job injury to Mr. Crow-den’s left knee caused the injury to his right knee and that, instead, the problems with Mr. Crowden’s right knee were caused purely by pre-existing degenerative disease. However, the history of his knee problems testified to by Mr. Crowden, together with the report and deposition testimony of Dr. Marrero, does support Mr. Crowden’s theory that the shift of weight to his right knee, due to the surgery, casts, crutches, etc. for his left knee injury, aggravated the previously asymptomatic degenerative condition of his right knee. The WCJ’s findings of fact may not be disturbed upon appeal so long as they are not clearly wrong-manifestly erroneous. E.g., Williams v. Wal-Mart Stores, Inc., 2000-0863 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134; Hulbert v. Boh Brothers, 99-1187 (La.App. 4 Cir. 1/5/00), 751 So.2d 994. Based upon the record as a whole, we cannot say that the WCJ was clearly wrong-manifestly erroneous as to this issue.

The State also argues briefly that Mr. Crowden’s left knee injury did not cause him temporary total disability. A medical expert retained by the State, Dr. laEric Carson, opined in his report to the effect that Mr. Crowden was temporarily totally disabled. The State argues that Dr. Mar-rero did not testify that Mr. Crowden was temporarily totally disabled. However, Dr. Marrero did not directly, at least explicitly, contradict Dr. Carson. In any case, to the extent that the opinions of the two doctors differ, this was a conflict to be resolved in the first instance by the WCJ and we cannot say that the WCJ was clearly wrong-manifestly erroneous in accepting Dr. Carson’s assessment.

The State also argues, based upon the factual premise that Mr. Crowden’s left knee injury did not cause his right knee injury, that Mr. Crowden is not entitled to the cost of medical treatment for his right knee. Because, above, we have held the WCJ was not clearly wrong-manifestly erroneous in finding that the injury to Mr. Crowden’s left knee caused the injury to his right knee, we hold that Mr. Crowden is entitled to the cost of treatment for his right knee.

Lastly, the State argues that it erroneously paid compensation benefits to Mr. Crowden from February 1998 to October 4, 1998 and that it should be given a credit for that overpayment. The WCJ ordered that benefits should be reinstated from February 1998 with interest on “past due” payments. Payments which were made from February 1998 to October 4, 1998 should not be made again because that would constitute a double payment. The State is entitled to a credit for payments made from February 1998 to October 4, 1998. La. R.S. 23:1206. Accordingly, the WCJ’s order that payments be made from February 1998 to October 4, 1998 is reversed.

|4For the foregoing reasons, we affirm in part and reverse in part the judgment of the WCJ.

AFFIRMED IN PART; REVERSED IN PART.


author: JjDENNIS R. BAGNERIS SR., Judge. | ARMSTRONG, J.,

text:
    Mr. and Mrs. Adam THOMAS, Sr., Anna Perkins, Mr. and Mrs. Willie Cromedy, and Others v. MOBIL OIL CORPORATION, Calciner Industries, Inc. and Murphy Oil, U.S.A., Inc.
    No. 2002-CA-1904.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.
    Writ Denied June 6, 2003.
    Allain F. Hardin, Fransen & Hardin, New Orleans, LA, and Sidney D. Torres, III, Roberta L. Burns, Chalmette, LA, and Gilbert V. Andry, III, Jerald N. Andry, Jr., Andry & Andry, L.L.C., New Orleans, LA, and Gerald E. Meunier, Irving J. Warshauer, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, LA, and T. Allen Usry, USRY, Weeks & Matthews, New Orleans, LA, for Plaintiff/Ap-pellee.
    Charles S. McCowan, Jr., Glenn M. Far-net, Julie Parelman Silbert, Alan J. Ber-teau, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   JjDENNIS R. BAGNERIS SR., Judge.

Defendant-appellant, Exxon Mobile Corporation, et al, appeals the trial court’s judgment, which overruled its exceptions of improper venue and improper cumulation of actions. We affirm. For the facts and reasons described in the excellent reasons for judgment issued by the trial court, stated below, we accept his opinion in toto.

CONCLUSION

The trial court did not err when it denied defendants’ exceptions of improper venue and improper cumulation. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

_[gCIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA

MR. AND MRS. ADAM THOMAS, SR. ET AL. VERSUS MOBIL OIL CORPORATION, ET AL.

No. 90-23370

June 18, 2002

JUDGMENT AND REASONS FOR JUDGMENT

This matter came for hearing on the 17th day of May 2002 on defendants’ Exceptions of Improper Venue and Improper Cumulation of actions. Present for hearing were:

Mr. Alan Hardin, Esq. Mrs. Roberta Burns, Esq. Mr. Gilbert Andry, III Esq. Mr. Gerald Meunier, Esq. Attorney for Plaintiff, Mr. and Mrs. Adam Thomas
Mr. Glen Farnet, Esq. Mr. Alan Berteau, Esq. Attorney for Defendant, ExxonMobil

This Court, after considering the law applicable to the facts of this case, the evidence presented, and arguments of counsels finds in favor of the plaintiffs’, Mr. and Mrs. Adam Thomas, Sr. et al and against the defendants’ ExxonMobile for the reasons set forth below.

BACKGROUND

The action which is pending before this Court has been filed as a class action. There has been no hearing on certification as of this date. The putative class here consists of residents of both Orleans and St. Bernard Parishes. The defendants are physically located and have their primary place of business in St. Bernard Parish. The action arises out of allegations that the defendants have | sallowed certain emissions to occur at the plant with resulting deleterious effects to the residents of Orleans and St. Bernard Parishes. It is clear that any alleged wrongful conduct occurred in St. Bernard Parish. It is also clear that damages allegedly have been sustained by residents in both Orleans and St. Bernard Parishes.

The defendants have filed an exception of improper venue alleging that venue is proper only in St. Bernard Parish because that is the parish where any wrongful conduct occurred and where some of the alleged damages suffered by some putative class members occurred. The defendants have also filed an exception of improper cumulation of actions alleging that there is no community of interests among the plaintiffs constituting the putative class. Plaintiffs have opposed both of these exceptions.

For the reasons assigned below, defendants’ exceptions of improper venue and improper cumulation of actions are both denied.

CUMULATION

Defendants have also filed an exception of improper cumulation of action under Article 926(7) (based on the provisions of Article 463) of the Code of Civil Procedure. Cumulation is not relevant to the current case. Therefore, extraction of its concept of “community of interests” and application of cases interpreting and applying this concept is misplaced.

Cumulation under Article 463 is a procedure pursuant to which several plaintiffs may sue several defendants in the same proceeding and have all their claims resolved. In a cumulated action, each plaintiff presents a case and each defendant responds. When the number of plaintiffs suing one or more defendants climbs into the thousands and membership in the group of plaintiffs is fluid and | changing, such as here, each plaintiff cannot appear, and cumulation is not an appropriate tool.

It is at that point that the provisions governing class actions must be applied to determine if a resolution of all claims can be appropriately conducted in one proceeding. In fact, the articles on class actions provide that it is where nu-merosity of plaintiffs makes joinder impracticable that class action proceedings are appropriate. See LSA C.C.P. art. 591(A)(1). See Thomas v. Charles Schwab and Company, Inc., 95-1405, 683 So.2d 734 (La.App. 3rd Cir.9/25/1997), writ denied, 97-0009, 96-2579, 686 So.2d 858, 859 (La.1/24/1997):

Parties who are attempting to certify a class do not first cumulate their actions ... The prerequisites for each action are similar. However, the difference between Louisiana Code of Civ. P. Article 591 and Article 463 is that the former is specifically for class actions and the latter is for cumulation of individual actions ... Class action is more appropriate than cumulation where there is a large number of plaintiffs or defendants involved.

Thomas, 683 So.2d at 737; citing Dumas v. Angus Chemical Company, 25,632, 635 So.2d 446 (La.App. 2nd Cir.3/30/1994).

Furthermore, cumulation of the individual lawsuits, pursuant to LSA C.C.P. art. 461, et seq., and joinder of the parties, pursuant to LSA C.C.P. art. 647 is not feasible, and would create a procedural quagmire.... The large number of plaintiffs makes it highly probable that membership of the group will change, with parties being added and dismissed. Class action is more appropriate than cumulation, joinder and/or consolidation because it was designed to accommodate the number of parties involved in the case before us.

Dumas, 635 So.2d at 450. The Dumas case involved 600 plaintiffs, as opposed to thousands in the current case.

Defendants cite LaBorde v. American National Property and Casualty Co., 01-01091, 780 So.2d 501 (La.App. 3rd Cir.1/31/2001), writ denied, 2001-0599, 791 So.2d 634 (La.4/27/2001), in connection with its exception of cumulation. |fi The LaBorde case, however, deals with circumstances where a single plaintiff had received separate injuries in separate accidents with different defendants on different dates in different locations, a situation completely different from the case at bar. No class action involving large numbers of plaintiffs was filed. The court, under those circumstances, correctly applied the cumulation article, not the class action articles, to determine if the different claims of a single plaintiff against different defendants should be heard in one suit.

Defendants also rely on the Albarado v. Union Pacific Railroad Company, 2000-2540 et seq., 787 So.2d 431 (La.App. 4th Cir.4/25/2001), writ granted, decision reversed, 2001-1537, 796 So.2d 666 (La.9/14/2001), to support their position. This reliance in support of their argument on cumulation is also misplaced. In Albar-ado, several defendants were sued. In each suit the plaintiffs suing a particular defendant had sued only that defendant and no other defendants. As a matter of fact, the Court found that the Federal Employer’s Liability Act (“FELA”) was the exclusive remedy for the plaintiffs and that pursuant to the provisions of FELA, employees could sue only their respective employers/defendants. In effect, the Court was faced with a series of separate class actions with separate groups of plaintiffs each suing different defendants in effect a cumulation of actions. For that reason, the Court felt compelled to apply Article 463 regarding cumulation of actions to determine if the “cumulation of class actions against all six separate and independent defendants was in the interests of judicial efficiency.”

The Court determined that the actions could not be cumulated in a single proceeding because such a proceeding would involve claims by “at least sixteen plaintiffs against ... six independent railroad defendants” with each defendant lfihaving “different locations, policies, practices, equipment and supervisors.” Albarado, 787 So.2d at 439. The Court held that the existence of these facts “mitigates against cumulation.” Although the Court, in closing, (and clearly in dicta) made casual reference to the concepts of “commonality” and “typicality” among the named plaintiffs’ claims, noting that this would provide no support for “certifying” the attempted cumulation of separate class actions, the decision was clearly based upon Article 463 governing cumulation of actions. The Court applied this Article because, based on facts peculiar to that case and the provisions of FELA, the Court found that what the Albarado plaintiffs were really attempting to do was to cumulate six separate and distinct class actions into a single proceeding by way of Article 463.

In the current case, we have defendants who allegedly committed wrongful acts in St. Bernard Parish that purportedly resulted in damages being sustained by many persons, not only in that Parish, but in Orleans Parish as well. We are thus faced with a putative class of thousands of plaintiffs who have sued these defendants because of those alleged damages. If only Orleans residents had filed suit against these defendants, then there would be no doubt that a determination of whether a class action was the appropriate vehicle for resolving their claims would be made at an Article 592 certification hearing, and not under Article 463, despite the variables cited by defendants regarding wind direction, differing substances, location of exposures, and injuries, etc. Such variables would be addressed at an Article 592 hearing as a natural element of the conflict between plaintiffs and defendants on the battleground of commonality and typicality under the class action provisions of Article 591. The fact that one additional element, St. Bernard residence, is added to the mix does not take the resolution of these issues out from [7under the provisions of class certification and deposit them under Article 463 cumulation.

For the foregoing reasons, this Court declines to apply Article 461. Resolution of the propriety of all plaintiffs proceeding to a resolution of their claims in a single proceeding will await a certification hearing under Article 592.

VENUE

Since the putative class currently before the Court will not be disassembled based on statutory provisions relating to cumulation of actions, the class set forth in the petition filed in this matter is to be considered as a putative class and the class action as a class action for purposes of matters such as venue brought before the Court prior to a class certification hearing. See City of Inglewood v. City of Los Angeles, 451 F.2d 948, 950 (9th Cir.1972) (“We hold therefore it was proper for the District Court to assume the suit was a class action in order to determine if it had jurisdiction, without first making the finding required by 23(C)1; and that this court must likewise assume this was a class action until a contrary determination is made.”).

Accordingly, a resolution of the issues raised by defendants’ venue exception will be accomplished within the parameters of the statutory provisions regulating class actions. See Cacamo v. Liberty Mutual Fire Ins. Co., 99-3479, 99-3480, 99-3481, 764 So.2d 41, 43 (La.6/30/2000) (“The appropriate venue for [class action] claims is set forth in [Civil Procedure Article] 593 ... ”). Article 593 of the Code of Civil Procedure provides that an action brought on behalf of a class “shall be brought in a parish of proper venue as to the defendant.LSA-C.C.P. art. 593(a) (emphasis added). The cited provision does not suggest that there is only one parish of proper venue. To the contrary, the Supreme Court has held that |sArticle 593 allows for expansive venue options in class actions by providing that a class action may be brought in “a”, meaning “any”, parish of proper venue. See Cacamo, supra.

In resolving the issue of available venue for class actions, the Supreme Court has pointed out that in 1989 Article 593 was amended to remove language defining the words “proper venue” as Article 42 venue and that the legislature rejected an amendment that would have limited venue in class actions to that available under Article 42 only. See Cacamo, 764 So.2d at 45. The official comments to Article 593 pertaining to the 1989 amendment state that the reason for the amendment was “to broaden venue for class actions by striking the limitation to Article 42.” Additionally, in 1997, when Article 593 was amended again, there was no reinstatement of the pre-1989 provision regarding limitation of venue to that available under Article 42.

In Cacamo, the sole issue before the court was whether class action plaintiffs involved in suits asserting contract claims against their own insurers were limited to the specific venue choices under Article 42 or whether they could take advantage of the supplementary venue articles found elsewhere in the Code of Civil Procedure and otherwise provided by law. The court conducted a thorough analysis of the general venue articles and the venue provision of class actions set forth in Louisiana Code of Civil Procedure Article 593 and held that Article 593 is clear on its face and permits the use of the supplementary venue provisions. See Cacamo, 764 So.2d at 47. One of these supplementary venue provisions is found at Article 74 of the Code of Civil Procedure. Plaintiffs contend that this venue provision, providing more than one venue option, as shown below, extends to the issue raised by defendants’ exception and operates to defeat it.

laArticle 74 provides that venue is proper in a Louisiana tort action “in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.” LSA-C.C.P. art. 74. The plaintiffs assert that under Article 74 venue is proper in this class action in Orleans Parish because some of the named plaintiffs and members of the putative class sustained damages through exposure to the defendants’ chemicals in Orleans Parish (even though the alleged wrongful acts or omissions that purportedly resulted in the release of the harmful chemicals occurred in St. Bernard Parish.) The clear language used in Article 593 and the Supreme Court’s decision in Cacamo support plaintiffs’ position. The defendants’ argument that St. Bernard Parish is the only parish of proper venue conversely finds no support in the law.

If a plant in St. Bernard Parish discharges harmful chemicals into the air, the chemicals may, as the plaintiffs have alleged, drift into Orleans Parish and cause damage by exposure to persons there. If subsequently a class action of Orleans Parish residents only is filed, venue would be proper in Orleans Parish pursuant to Article 74. If, as here, it is alleged that chemicals released in St. Bernard Parish have adversely affected both Orleans residents and St. Bernard residents there is no reason why venue, acceptable as to the defendant in Orleans Parish because of the damages occurring in Orleans Parish, is rendered any less acceptable under Article 593 as “a parish of proper venue as to the defendant” simply because the chemicals also injured St. Bernard Parish residents and they join in the suit.

If a class action may appropriately be certified to include all persons injured by the emissions (an issue which must be determined in a class certification hearing not on a venue exception) then, under Articles 593 and 74, venue would be appropriate in any parish in which the defendant caused damage to members of the |inclass. The fact that some of the members of the class may also reside in the parish of wrongful conduct does not limit the appropriate class venue to that parish.

Defendants are attempting to “look behind the curtain” of this putative class action and predict that a future certification hearing would result in separation of Orleans and St. Bernard resident plaintiffs. This court will not engage in such conduct. Venue for the putative class currently before the court is appropriate in Orleans Parish since members of the putative class suffered damages in Orleans Parish.

Defendants’ citation of authority to the contrary is unpersuasive. Their rebanee on Albarado, supra, is totally misplaced. In that case, the Court of Appeal clearly held that a defendant who brings an exception of improper venue in a class action has the burden to prove that neither the alleged wrongful conduct nor the damages sustained by the plaintiff occurred in Orleans Parish in order to establish that venue is improper in Orleans Parish. The Fourth Circuit noted that the defendants had offered sparse evidence regarding these issues and that the evidence was insufficient to justify a reversal of the denial of the venue exception by the lower court as to several of the defendants. However, as to other defendants, the Appeals Court determined that venue was inappropriate since neither wrongful acts nor damage occurred in Orleans Parish.

The backbone of these factual determinations nonetheless was the legal conclusion that venue in class actions would be proper in any parish where damages, were sustained, as allowed by Article 74. See Albarado, 787 So.2d at 436. Writs were sought by one of the two defendants, which had appealed the trial court’s decision.

Inin granting writs and reversing the denial of the exceptions, the Louisiana Supreme Court also used Article 74 as the controlling venue article, but contrary to the circuit court, the Supreme Court ruled that the record evidence presented by defendants was sufficient to show that no plaintiff suffered injury in Orleans Parish. See Albarado, 796 So.2d 666 (“... we find that none of the plaintiffs’ exposure to chemicals occurred in Orleans Parish, making Orleans Parish an improper venue for purposes of [Article 74].”).

By way of contrast, in the current case the defendants clearly admit that members of the putative class reside in Orleans Parish and have alleged that they were injured in the parish where they reside. Therefore, under the Albarado rationale, venue in the captioned matter is proper in Orleans Parish.

The balance of the cases offered by defendants establish a principle of law not applicable to the current case. The line of cases cited by defendants culminating in LaBorde, swpra, hold that where damage is initiated in the same parish that the wrongful conduct occurred, the plaintiff receiving the injury in the parish of wrongful conduct cannot bring suit in another parish even though the injury continues to manifest itself in that parish. This line of cases is inappropriate to the current case since we have a putative class containing members who were alleged to have actually been injured in Orleans Parish due to alleged wrongful conduct occurring in St. Bernard Parish. They are named plaintiffs, proposed class representatives and members of the putative class. They do not claim exacerbation of injuries originally sustained elsewhere. The allegations that they were exposed to the subject chemicals in Orleans Parish and, as a consequence suffered injury in l^that parish, establishes Orleans Parish as “a” parish of proper venue as to the defendants under Article 593.

CONCLUSION

Based on the foregoing, the defendants’ exceptions of improper venue and improper cumulation of actions are both denied.

IT IS ORDERED, ADJUDGED and DECREED that defendants’ exception of improper venue and improper cumulations of actions are hereby DENIED.

ARMSTRONG, J., concurring.

| ARMSTRONG, J.,

concurring.

I respectfully concur. The issue, in effect, is whether St. Bernard Parish residents can be included as class members in a class action pending in Orleans Parish despite the fact that, if they had sued individually, they could not have sued in Orleans Parish. The Code of Civil Procedure does not address this issue. In the absence of any Code prohibition, it is best to allow St. Bernard Parish residents to participate as class members in the Orleans Parish class action, at least until the time of class certification. The alternative is to have a second class action, as to the same issues, in St. Bernard Parish. Such purely venue-drive multiplication of proceedings as to the same issues is undesirable because it increases costs and effort. The defendants assert that the same issues would not be involved because the same emissions did not affect both St. Bernard Parish and Orleans Parish. The plaintiffs assert just the opposite; that the same emissions did affect both St. Bernard Parish and Orleans Parish. This factual issue can be determined at the class certification hearing and, then, any consequent questions of the composition of the class, and whether there should be a second class action in St. Bernard Parish, can be addressed in light of that factual determination.

      . This line also includes Williams v. Montegut, 99-2119, 752 So.2d 329 (La.App. 4th Cir.2/2/2000), Belser v. St. Paul Fire and Marine Insurance Company, 509 So.2d 12 (La.App. 1st Cir.1987), Chambers v. LeBlanc, 598 So.2d 337 (La.1992), J & L Industries v. Rives, 31,742, 723 So.2d 541 (La.App. 2nd Cir.1/7/99), and Small v. Frieberg, 98-1223, 734 So.2d 1273 (La.App. 5th Cir.5/19/99)


author: I .McDonald, j.

text:
    James HOWARD v. WEST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2002 CA 0803.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Rehearing Denied May 13, 2003.
    Charles W. Rea, Baton Rouge, Counsel for Plaintiff/Appellee James Howard.

      Patrick M. Amedee, Metairie, Counsel for Defendant/Appellant West Baton Rouge Parish School Board.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I .McDonald, j.

Defendant, West Baton Rouge Parish School Board, appeals the decision of the trial court ordering the reinstatement of a tenured vocational technical teacher, with back pay, from the date of his wrongful termination through the date of the judgment from which defendant appealed.

FACTS AND PROCEDURAL HISTORY

James Howard, a tenured vocational technical teacher with the West Baton Rouge Parish School Board (School Board), was placed on paid suspension in October 1996, following his report of a gun being stolen from his wife’s car that was parked outside of his classroom. In February 1997, the School Board gave Howard a written notice that he was being charged with willful neglect of duty concerning the loss of the firearm and in March 1997, following a teacher tenure hearing, terminated him. Howard appealed the School Board decision to the district court, which affirmed the School Board decision, and to the court of appeal, which also upheld the School Board decision. Howard v. West Baton Rouge Parish School Board, 98-2574 (La.App. 1st Cir.9/22/00), 770 So.2d 441. On June 29, 2001, the supreme court reversed and ordered that Howard be reinstated to his former position with all salary, compensation, and emoluments. A motion for rehearing was denied. Howard v. West Baton Rouge Parish School Board, 00-3234 (La.6/29/01), 793 So.2d 153.

Howard possessed a limited certification from the State Department of Education, which allowed him to teach only in the capacity of an auto mechanic instructor. This program was eliminated from the West Baton Rouge Parish school system curriculum in August 1997. On October 18, 2001, Beverly Triche, Superintendent of Schools for the West Baton Rouge Parish School Board, wrote to Howard advising him that the course he was teaching at the time of his separation from the School Board had been discontinued at the end of the 1996-97 school year. The correspondence further served as notification of termination of employment pursuant to School Board policy on reduction-in-staff personnel and advised Howard that he had a right to request a review of the action and receive notice of the results of |8such review. Howard was given fifteen days to submit a written request for review. On October 29, 2001, Howard filed a motion to enforce the supreme court order but did not request review of the reduction action. The trial court ordered that Howard be reinstated to his former position and salary. The court further ordered that Howard be paid all back pay, benefits and emoluments, from the date of his last regular payment until he is reinstated and legal interest from the date of judicial demand until paid. The School Board appealed the judgment, asserting that the district court erred in ordering that Howard be reinstated with back pay through the date of its judgment, considering the reduction-in-force action taken by the School Board.

LAW AND DISCUSSION

The sole issue before the supreme court in Howard, 793 So.2d 153, was whether Howard’s employment was properly terminated for willful neglect of duties under the Louisiana Teachers’ Tenure Law, La. R.S. 17:443. It noted that the trend in the cases wherein teachers were terminated for willful neglect of duty required a teacher to violate a policy or order, or to be guilty of dereliction of duty. Therefore, the School Board had to prove that Howard willfully or deliberately neglected his duties or acted in contravention of an order or school policy in order for the termination to be considered lawful. The court found that the record did not contain substantial evidence that Howard either acted or failed to act in contravention of a direct order from a supervisor or against an identifiable school policy. Howard, 793 So.2d at 157. Consequently, Howard was ordered to be reinstated. However, the supreme court did not have before it, nor did its decision encompass, the fact that Howard’s former position had been eliminated.

In seeking enforcement of the court opinion in his favor, Howard argued that, he should be paid all of the wages and benefits he would have otherwise received from the date of his last full paycheck until he was reinstated and thereafter until his relationship with the School Board was terminated. Howard maintained that he could not be fired again until after he had been reinstated. He continued to argue zealously |4that in order to give effect to the supreme court decision, not only must Howard be reinstated, but also, in effect, the School Board could not take any action regarding Howard or the position that he held until after he was reinstated. The United States Supreme Court came to a different conclusion regarding remedial measures after a wrongful termination in McKennon v. Nashville Banner Publishing Company, 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852, (1995), and we find the reasoning of that case to be appropriate here.

In McKennon, the Supreme Court considered the issue of the effect of after-acquired evidence of a wrongdoing in the context of a discriminatory termination. The plaintiff (McKennon) was terminated after 30 years employment with Banner Publishing, allegedly based on work force reduction necessitated by cost considerations. The employee believed her dismissal was because of her age, 62, and filed suit for violation of the Age Discrimination Employment Act of 1967. Upon taking McKennon’s deposition, it was learned that she had copied confidential documents regarding the company’s financial condition and taken them home to show her husband. A few days after her deposition, Banner sent McKennon a letter declaring that the removal and copying of the records was in violation of her job responsibilities and advising her once again that she was terminated. McKen-non, 115 S.Ct. at 883. The Supreme Court noted that the case was before it based on the assumption that an unlawful motive was the sole basis for the firing because the misconduct was not discovered until after the termination. McKennon, 115 S.Ct. at 885 However, the court found that the after-acquired evidence of wrongdoing could be considered in fashioning the remedy. In spite of the fact that Banner had been guilty of age discrimination, the court found that it was necessary to take into account the employer’s legitimate concerns and the lawful prerogatives of the employer in the usual course of its business. It also noted that it “would be both inequitable and pointless to order the reinstatement of someone the employer would | shave terminated, and will terminate, in any event and upon lawful grounds.” McKennon, 115 S.Ct. at 886.

While the McKennon case is factually distinct from the one before us, we consider its reasoning to provide the proper guide to our decision here. The School Board did not engage in an overtly discriminatory act. The Louisiana Supreme Court’s consideration of Howard’s case addressed only the issue of whether Howard’s termination was lawful. The opinion noted the facts in numerous cases in which termination had been upheld and numerous cases in which termination had been found unlawful. In the course of its analysis, the court cited Coleman v. Orleans Parish School Board, 93-0916, 94-0737 (La.App. 4 Cir. 2/5/97), 688 So.2d 1312, writ denied, 97-0622 (La.4/25/97), 692 So.2d 1087. According to the court, Coleman extensively reviewed and discussed the jurisprudence concerning “willful neglect of duty” cases and concluded that teachers may be dismissed for willful neglect of duty only for a specific action or failure to act in contravention of a direct order or identifiable school policy. In agreeing with the fourth circuit, the court articulated a standard of law to be applied to all “willful neglect of duty” cases that heretofore had not been established. Howard, 793 So.2d at 157. Considering Howard’s termination under this standard, the court reinstated Howard to his former position with all salary, compensation, and emoluments. Howard, 793 So.2d at 157. Therefore, the law of the case is that Howard be reinstated to his former position effective March 1997. We now have to address the issue of the effect of the School Board action taken in August 1997, eliminating the auto mechanic course and the subsequent reduction-in-force action.

A parish school board has broad responsibilities in administering the public schools. Included is the power, when acting in good faith, to consolidate positions or to abolish them. La. R.S. 17:81; Palone v. Jefferson Parish School Board, 306 So.2d 679, 681 (La.1975). The standard of judicial review of a school board’s decision is whether there is a rational basis for the board’s determination supported by substantial evidence insofar as factually required. Howard, 793 So.2d at 157; Howell v. Winn Parish School Board, 332 So.2d 822, 824-825 (La.1976). In such cases, the reviewing court must neither substitute its judgment for the judgment of the school board nor interfere with the board’s bona fide exercise of discretion. (Italics in original) Howard, 793 So.2d at 157. Because the elimination of a course in a public school is a bona fide exercise of discretion by the School Board, the only remaining issue we must address in evaluating the validity of the action is “good faith.”

Howard argues that the elimination of the auto mechanic course was an attempt to uphold his firing and avoid paying him for the five years that he did not work. He posits that the School Board apparently believes it is the supreme authority above the courts of the state of Louisiana and was acting in bad faith. As we have stated, the enforcement of the supreme court decision requires only that Howard be reinstated with all salary, compensation, and emoluments effective March 1997. We do not believe the decision in August 1997 to eliminate the auto mechanic course was made for any nefarious purpose, in bad faith. Having decided to eliminate the course and with no one occupying the position of course instructor, a reduction-in-force action in accordance with La. R.S. 17:81.4 would have been nonsensical. The School Board took this action as soon as practicable after notice of the supreme court decision. We find no bad faith on its part, and neither we, nor the trial court, may substitute its judgment for that of the School Board and order it to offer this course or any other course. Furthermore, we do not believe the ruling of the Supreme Court was intended to prevent or undo the decision of the School Board taken in August 1997 to cease offering the auto mechanics course, after the end of the school year of 1997-1997. The assignment of Howard to another position after reinstatement does not seem possible since he does not have the qualifications required of a classroom teacher. However, the issue of alternative positions would have to have been raised by Howard at the time of the reduction-in-force action.

The judgment of the district court ordering the West Baton Rouge Parish | ^School Board to reinstate Howard to his former position with all salary, compensation, and emoluments is amended to provide an effective date of March 1997 through the date of the elimination of the auto mechanic course, with legal interest thereon from the date of judicial demand until paid. Costs of this appeal in the amount of $1,576.60 are assessed to the West Baton Rouge Parish School Board.

AMENDED AND, AS AMENDED, AFFIRMED.

      . For purposes of the summary judgment, Banner conceded its discrimination against McKennon.

      . Because Howard did not request review of the reduction-in-force action, we cannot address whether that action had a rational basis,


author: 1 .DOUCET, Chief Judge.

text:
    Lloyd O. BOOK, Jr., et ux v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 02-1348.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      Wilbert J. Saucier, Jr. Pineville, LA, and Michael L. Glass, Alexandria, LA, for Plaintiffs/Appellees: Lloyd 0. and Barbara Book.
    James B. Reichman, Alexandria, LA, for Defendants/Appellants: State Farm Automobile Ins. Co. & Puja Yerma.
    Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   1 .DOUCET, Chief Judge.

Defendants, State Farm Mutual Automobile Insurance Company (State Farm) and its insured Puja Verma, appeal a judgment of the district court awarding damages ($50,000.00 to Plaintiff, Lloyd Book and $5,000.00 to Plaintiff, Barbara Book, a total of $55,000.00 plus interest and costs), which Defendants claim are legally excessive, in that Plaintiffs, in their petition, prayed for damages “in a sum ... LESS THAN THE REQUISITE AMOUNT FOR [A] JURY TRIAL.” Plaintiffs answered the appeal seeking damages for frivolous appeal. We affirm the judgment of the trial court. We deny Plaintiffs’ prayer for damages for frivolous appeal.

FACTS

Plaintiff, Lloyd Book, and Defendant, Puja Verma, were involved in a motor vehicle accident on June 5, 2000. As a result of the accident Mr. Book sustained a number of injuries and incurred $11,439.84 in medical bills. At the time of the accident Lloyd Book was married to Barbara Book. The Books filed suit against Mr. Verma and his insurer, State Farm. Mr. Book sought general and specific damages for the injuries and property damage he sustained as a result of the accident. Mrs. Book brought a claim for damages for loss of consortium. In their petition, Plaintiffs prayed for damages “in a sum ... LESS THAN THE REQUISITE AMOUNT FOR [A] JURY TRIAL.”

Trial on the matter took place in district court on July 23, 2002. At trial the parties stipulated that Puja Verma, who was insured by State Farm, was 100% at fault in causing the accident. They also stipulated to the medical expenses incurred by Mr. Book. Thus, the only issue before the trial judge was the issue of damages. After hearing the testimony and examining the evidence, the trial court found that Mr. Book had | ^sustained $45,000.00 in general damages, in addition to the stipulated special damages of $11,439.84. The court also found that Mrs. Book was due the sum of $5,000.00 for her loss of consortium claim. In accordance with Plaintiffs petition, judgment was rendered in favor of Lloyd Book in the sum of $50,000.00 and in favor of Barbara Book in the sum of $5,000.00, both to bear interest from the date of judicial demand, May 31, 2001. Plaintiffs were also awarded costs.

On appeal, Defendants argue that the total award to Plaintiffs should not have exceeded $50,000.00 plus interest and costs. Plaintiffs answered the appeal arguing that Defendants’ appeal is frivolous and that they (Plaintiffs) should be awarded additional damages for frivolous appeal.

LAW AND ARGUMENT

La.Code Civ.P. art. 1732 states in part:

A trial by jury shall not be available in:
(1) A suit where the amount of no individual petitioner’s cause of action exceeds fifty thousand dollars exclusive of interest and costs.

Defendants argue that since the total judgment awarded to Plaintiffs exceeded fifty thousand dollars, the trial court erred, as a matter of law. This same issue was addressed by this court in Naquin v. Teer, 94-448 (La.App. 3 Cir. 12/7/94); 649 So.2d 993 (we note that at the time of the Na-quin case, the requisite minimum amount to obtain a jury trial was only twenty thousand dollars; the statute was amended by Act No. 661, § 1 of 1993 to increase the requisite minimum amount to fifty thousand dollars). In Naquin this court explained as follows:

Defendants contend that the trial court erred in rendering judgment in the amount of $25,299.99, which exceeded the $20,000 amount stipulated to prior to trial as the maximum damages sought by plaintiffs. In other words, defendants assert that the judge erred as a matter of law 13by rendering a judgment in an amount greater than the maximum jurisdictional limit required for a bench trial.
La.C.C.P. art. 1732(1) controls a claimant’s right to trial by jury depending upon the amount that he positively states he is seeking for the alleged damages. Without violating La.C.C.P. art 893, which prohibits a party from praying for a specific monetary amount except in limited circumstances (such as to establish the right to a jury trial), plaintiffs can assert that the amount sought is either more or less than $20,000 to obtain either a jury or judge trial. Plaintiffs’ amendment and the subsequent stipulation were both to the effect that recovery would not exceed the “jurisdictional amount”, i.e., $20,000 for each individual petitioner’s cause of action. Although defense counsel appears to have understood at trial and argues now on appeal that the stipulation limited the total award to all plaintiffs to $20,000, this is simply not the case when the stipulation, which specifically mentions the “jurisdictional amount”, is read in context with La.C.C.P. art. 1732(1). Clearly, the judgment is not violative of La.C.C.P. art. 1732(1) nor does it award more than the amount per claimant stipulated to as the maximum recovery.

Naquin, 94-448, pp. 8-9; 649 So.2d at 996-97 (footnote omitted).

In Benoit v. Allstate Ins. Co., 00-0424 (La.11/28/00), 773 So.2d 702 the Louisiana Supreme Court discussed La.Code Civ.P. art. 1732’s meaning as follows:

La. Code Civ. Proc. art. 1732(1) specifies a minimum monetary threshold for the availability of a jury trial. Prior to 1989, the statutory standard for determining the monetary threshold for a jury trial was the “amount in dispute.” La. Acts 1989, No. 107, changed the standard to the amount of at least one “individual petitioner’s cause of action.” (FN1)
(FN1.) Because La.Code Civ. Proc. art. 1732 provides the situations in which a jury trial is not available, there is an awkward double negative in the statement of the monetary threshold, which prohibits a jury trial in “[a] suit where no individual petitioner’s cause of action exceeds fifty thousand dollars exclusive of interest and costs.” That threshold clearly makes a jury unavailable unless the amount of at least one individual petitioner’s cause of action exceeds $50,000.
_k ■ ■ •
By La. Acts 1989, No. 107, the Legislature reworded the statutory standard for the monetary threshold for the availability of a jury trial from “the amount in dispute does not exceed” to “the amount of no individual petitioner’s cause of action exceeds.” The amendment was not one that was proposed by the Louisiana State Law Institute, and there was no revision comment explaining the purpose of the amendment. It is now this court’s task to determine that purpose.
Interpretation of the 1989 Amendment
La. Acts 1989, No. 107, began as a Senate bill that simply prohibited a trial by jury in “[a] suit where the amount of the cause of action does not exceed twenty thousand dollars [as noted Act No. 661, § 1 of 1993 increased the requisite minimum amount to fifty thousand dollars] exclusive of interest and costs.” In Senate Committee, the bill was amended to delete the words “the cause of action does not exceed” and to substitute the words “no individual petitioner’s cause of action exceeds.” At the Committee meeting, the author of the original bill explained that the present law denies a jury trial where the amount in dispute does not exceed $20,000 and that “the intent [of the original bill] is that a person who has a claim of more than $20,000 would be entitled to a jury trial, and if the claim is less than that, he would not be entitled to a jury trial.” The senator who offered the Committee amendment then explained the amendment was to clarify that a jury trial is unavailable if no individual petitioner’s cause of action exceeds $20,000.
One purpose of the 1989 legislation, which is very evident from the insertion of the words “individual petitioner,” was to clarify that the monetary threshold cannot be satisfied by the joinder of two or more plaintiffs in the same suit, although La.Code Civ. Proc. art. 463 might authorize that joinder under the specified conditions. The amendment clearly requires that the unjoined cause of action of at least one individual plaintiff must be valued above the minimum amount.

Benoit, 00-424, pp. 1-6; 773 So.2d at 702-06 (footnotes 2, 3 and 4 omitted)(italicized brackets ours).

In the case sub judice, neither the award for Mr. Book’s cause of action for the general and specific damages he sustained as a result of the accident, nor Mrs. Book’s award for her cause of action for damages for her loss of consortium exceeded fifty thousand dollars. While the trial court found that Mr. Book’s actual damages | ¡^exceeded fifty thousand dollars, Mr. Book’s award for damages was limited by the terms of his petition to a maximum of fifty thousand dollars, the amount awarded. We find no error in the trial court’s actions.

As to Plaintiffs’ allegation that Appellants’ appeal is frivolous, we do not agree. Appellants’ base their appeal on Plaintiffs’ petition and on the stipulation entered into at the beginning of the trial of the matter. Reading the Plaintiffs’ petition and the stipulation between the parties at the opening of the trial, we can see that the wording of each is subject to different interpretations. Paragraph 9(b) of Plaintiffs’ petition prays for “judgment in favor of petitioners ... in a sum ... LESS THAN THE REQUISITE AMOUNT FOR [A] JURY TRIAL.” It would have been more specific had the petition prayed for “judgment in favor of each petitioner,” etc. Likewise, during the discussion concerning stipulations at the beginning of the trial, counsel for Plaintiffs states: “I specifically held the claim below the requisite amount for a jury trial.” This would have been more artfully stated if counsel had stated: “I specifically held each 'petitioners’ claim below the requisite amount for a jury trial.” While we find Appellants’ appeal is not frivolous, we do not find that the trial judge erred in interpreting the petition and stipulation as he did.

Accordingly, for the reasons stated above, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Appellants, State Farm Mutual Automobile Insurance Company and its insured, Puja Verma.

AFFIRMED.