source: Caselaw Access Project

author: hPER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Danny Ray SHERMAN.
    No. 2004-OK-1019.
    Supreme Court of Louisiana.
    Oct. 29, 2004.
   hPER CURIAM.

Granted. This case is remanded to the Third Circuit Court of Appeal for reconsideration of defendant’s assignment of error regarding the trial court’s denial of his motion to suppress evidence.

As a general rule, an appellate court may review the testimony at trial in determining the correctness of the trial court’s pre-trial ruling on a motion to suppress. State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 280; State v. Brooks, 92-3331, p. 10, (La.1/17/95), 648 So.2d 366, 372; State v. Martin, 595 So.2d 592, 596 (La.1992). This review may provide supplemental information relevant to the suppression issue. See, e.g., State v. Beals, 410 So.2d 745, 747 (La.1982) (“Accordingly, we have taken into consideration the fact that defendant was the resident of the premises named in the search warrant.”)(footnote omitted). It may also disclose conflicting testimony relevant to the credibility of the witness. Martin, 595 So.2d at 596 (“We have considered [the witness’s] testimony at the | ¡^suppression hearing and his subsequent trial testimony, the latter completely at odds with the former.”).

However, in many cases the testimony at trial often may not diverge from the evidence adduced at a pre-trial hearing on a motion to suppress. See, e.g., State v. Chopin, 372 So.2d 1222, 1223, n. 2 (La.1979)(“Since the evidence adduced at trial does not affect the result we reach in the instant case, our relation of the pertinent facts is based only upon the testimony given at the suppression hearing.”); State v. Schmidt, 359 So.2d 133, 134, n. 2 (La.1978)(same). An appellate court is therefore not required to review the testimony at trial in every instance. In the present case, if the court of appeal finds that it cannot resolve the suppression issue on the basis of the testimony offered at the hearing on the motion, which both the state and defendant have used as the basis for arguing the merits, as an alternative to dismissing the defendant’s appeal, the court should exercise its authority under La.C.Cr.P. art. 914(D) to designate additional portions of the transcript “necessary for full and fair review of the assignment of errors.”

TRAYLOR, J., would deny the writ.


author: | .PER CURIAM. CALOGERO, C.J.,

text:
    In re Gasper J. SCHIRO.
    No. 2004-B-1647.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
    Order Denying Rehearing Jan. 14, 2005.
   ATTORNEY DISCIPLINARY PROCEEDINGS

| .PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gasper J. Schiro, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Harry Witt went to respondent in 1983 seeking representation in connection with a personal injury matter involving the City of New Orleans (“City”). Respondent, who was an elected official in Orleans Parish, was concerned he might have a potential conflict of interest in representing Mr. Witt against the City. Accordingly, respondent asked another attorney, Olga Kogos, to handle Mr. Witt’s ease.

Although Ms. Kogos enrolled as Mr. Witt’s attorney of record, Mr. Witt had no further contact with her following the first meeting set up by respondent. Respondent continued to be involved in the case, acting as a liaison between Mr. Witt and Ms. Kogos. He drafted the petition for damages and, after Ms. Kogos signed it, filed the petition with the court in 1983. Thereafter, the case remained dormant for several years.

LAt some point during her handling of the case, Ms. Kogos became seriously ill. Thereafter, respondent took a greater role in the case, although he never formally enrolled as counsel of record for Mr. Witt. In 1994, respondent filed a motion to set the case for trial and a motion to set a pretrial conference but never officially enrolled as counsel of record. Respondent also wrote several letters to the City’s legal department in an attempt to reach a settlement. After Ms. Kogos died sometime in the late 1990’s, respondent continued to seek an out of court settlement with the City.

By 2001, Mr. Witt had become frustrated with the lack of progress in his case. In the fall of 2001, Mr. Witt advised respondent that he intended to file a disciplinary complaint against respondent with the ODC. Following that communication, respondent discussed giving Mr. Witt $2,000 out of his own pocket in light of the City’s refusal to settle the matter. Mr. Witt did not accept the $2,000 and instead filed the complaint with the ODC on January 31, 2002. The complaint essentially alleged respondent failed to pursue Mr. Witt’s case with diligence and failed to communicate with Mr. Witt in regard to the status of the case.

Respondent filed a timely response to the complaint, denying he was Mr. Witt’s attorney in the matter. He admitted to speaking with Mr. Witt “from time to time” but claimed he was only trying to help a “political supporter and a friend” and “should not be considered his attorney.” Furthermore, respondent asserted he never signed a contract with either Mr. Witt or Ms. Kogos and never received any legal fees for the case, although he indicated that he had intended to share fees with Ms. Kogos in the event the case settled.

¡..¡Thereafter, respondent gave a sworn statement to the ODC. He claimed that when Mr. Witt first came to him, Mr. Witt told respondent that he could help him politically. He further claimed Mr. Witt had in fact helped him in past elections by putting up a sign and talking to people. He went on to state that he was not really Mr. Witt’s attorney even though he never informed Mr. Witt of that fact in writing.

Respondent also told the ODC that he filed the motions in the case at the urging of Mr. Witt because nothing was happening and he wanted to help. Respondent was worried that Ms. Kogos’s illness was delaying the case and decided to take some action. He further admitted that he knew some of the assistant city attorneys, so he attempted to negotiate a settlement through them. However, he continued to assert that Ms. Kogos was the attorney of record, claiming he thought of Mr. Witt more as a friend than a client. Respondent stated that he offered Mr. Witt the $2,000 out of his own pocket because he “didn’t want any trouble” while he was trying to qualify to run for re-election.

Mr. Witt gave a sworn statement to the ODC in which he indicated that he assumed respondent and Ms. Kogos were partners, stating “I just left everything in [respondent’s] hands.” He further stated that he asked respondent numerous times over the years to either get a court date or settle the case. Respondent’s response was always that it would be next week or he would take care of it next week, leading Mr. Witt on and giving him false hope by implying that the case would settle very soon. This was extremely frustrating for Mr. Witt and caused him to worry and lose sleep. Furthermore, Mr. Witt called respondent “hundreds” of times, asserting that respondent returned only one out of every fifteen or twenty calls.

^DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed one count of formal charges against respondent, alleging his conduct violated the following Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.2(a)(b) (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4(a)(b) (failure to communicate with a client), 1.7(b) (conflict of interest), 1.8(h) (improperly settling a malpractice claim with an unrepresented client), 3.2 (failure to make reasonable efforts to expedite litigation), 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).

In his answer to the formal charges, respondent denied the allegations and provided a memorandum in support of his opposition to the formal charges.

Formal Hearing

This matter proceeded to a formal hearing on the merits, which was conducted by the hearing committee. The ODC introduced a binder of documentary evidence, including an audiotape of several conversations between respondent and Mr. Witt, in support of the formal charges. Respondent adopted the ODC’s exhibits as his own. Both respondent and Mr. Witt testified in person before the committee.

Hearing Committee Recommendation

Considering the evidence presented at the hearing, the hearing committee made a finding of fact that respondent agreed to handle Mr. Witt’s personal injury matter. [sIt found that because of concerns over a possible conflict of interest with the City, respondent never enrolled as counsel of record and asked Ms. Kogos to become involved in the case. However, the committee found that Mr. Witt believed respondent was his attorney throughout the representation. It further noted respondent admitted he would share attorney fees with Ms. Kogos if the case ultimately settled. Considering these facts, the committee concluded respondent acted as Mr. Witt’s attorney.

The committee found the last formal action taken by respondent in the case occurred in 1994, when he filed a motion for pre-trial conference. It determined that after 1994, the only actions taken by respondent in the case were informal settlement discussions with the City. It further found that in 2001, when Mr. Witt expressed dissatisfaction over the progress of the case, respondent acted improperly by offering him $2,000 out of his pocket.

Based on these facts, the committee found respondent failed to act with competence and diligence, in violation of Rules 1.1 and 1.3. In addition, it found he failed to communicate with his client in violation of Rule 1.4(a)(b) and failed to make reasonable efforts to expedite the litigation in violation of Rule 3.2. Finally, it determined he improperly attempted to settle his malpractice liability, violating Rules 1.8(h) and Rule 8.4(c). However, the committee did not find clear and convincing evidence to support the violation of the conflict of interest provisions (Rules 1.7 and 1.8), nor did it find he engaged in conduct prejudicial to the administration of justice for purposes of Rule 8.4(d).

The committee determined that respondent violated duties owed to his client, the public, and the profession. Citing the ABA Standards for Imposing Lawyer 1 (¡Sanctions, it concluded the baseline sanction for respondent’s misconduct was a suspension.

As aggravating factors, the committee recognized respondent had a prior disciplinary offense (a private reprimand in 1986 for neglecting a client’s civil litigation matter), dishonest or selfish motive, pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law. The committee found no mitigating factors.

Accordingly, the committee recommended that respondent be suspended from the practice of law for a period of one year and one day to be followed by two years of probation and attendance at the Louisiana State Bar Association Ethics School.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee’s factual findings were not manifestly erroneous. The board also accepted the committee’s legal finding that respondent violated Rules 1.1(a), 1.3, 1.4(a)(b), and 3.2 of the Rules of Professional Conduct by failing to represent Mr. Witt in a competent manner, failing to communicate with him and failing to pursue the matter diligently. Likewise, the board agreed with the committee’s finding that respondent did not act outside the scope of his representation by pursuing a settlement, that his position as an elected parish official did not create a conflict of interest in his representation of Mr. Witt against the City of New Orleans, and that his actions were not prejudicial to the administration of justice even though they did jeopardize Mr. 17Witt’s case. However, the board rejected the committee’s finding that respondent acted in an improper or dishonest manner in attempting to settle his malpractice liability in violation of Rules 1.8(h) and 8.4(c).

The board adopted the aggravating factors of prior disciplinary offenses, refusal to acknowledge the wrongful nature of conduct, and substantial experience in the practice of law found by the committee. However, the board rejected the committee’s findings of a pattern of misconduct (noting there was neglect in only one matter), dishonest or selfish motive, and vulnerability of victim. In mitigation, the board recognized respondent’s full and free disclosure to the disciplinary board and cooperative attitude toward the proceedings. It also recognized that respondent has practiced law for forty-three years, with only one prior and remote disciplinary infraction.

Turning to the issue of an appropriate sanction for respondent’s misconduct, the board agreed with the committee that the baseline sanction was suspension. Considering the mitigating factors, the board recommended respondent be suspended from the practice of law for one year with six months deferred.

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). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the 1 shearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record supports the factual findings of the hearing committee as modified by the disciplinary board. Although respondent was not Mr. Witt’s counsel of record, he clearly took actions in the case which led Mr. Witt to reasonably assume respondent was his attorney. The record also supports the conclusion that respondent failed to provide competent representation, failed to adequately communicate with Mr. Witt regarding the status of the case and failed to act with diligence during the representation, taking only sporadic actions during the nearly twenty years when the case was pending. However, we find there is no clear and convincing evidence in the record indicating the ODC proved a conflict of interest between respondent’s position as a parish official and his representation of Mr. Witt or that respondent attempted to settle his malpractice liability in an improper or dishonest manner.

Having found professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

loA review of this court’s jurisprudence indicates that under similar facts, this court has imposed suspension ranging from six months to one year and one day. See, e.g., In re: Dunn, 98-0535 (La.6/5/98), 713 So.2d 461; In re: Mitchell, 02-2581 (La.11/8/02), 831 So.2d 901; In re: Dean, 03-2478 (La.1/21/04), 864 So.2d 152; and In re: Holmes, 03-1959 (La.9/19/03), 855 So.2d 736.

In fashioning an appropriate sanction in this case, we note that the record as a whole suggests respondent’s actions were not motivated by any dishonest or selfish motive. Rather, it appears undisputed that respondent acted out of a genuine desire to assist Mr. Witt, who was his friend and political supporter. While respondent’s lack of dishonest intent in no way excuses his failure to conduct the representation in a competent and diligent manner, it serves to mitigate the severity of the sanction. We also find that respondent exhibited a cooperative attitude during these disciplinary proceedings.

In aggravation, we recognize respondent has substantial experience in the practice of law and one prior disciplinary infraction (a reprimand in 1986). However, the effect of this latter factor is tempered because the prior discipline is remote in time and is the only blemish on respondent’s otherwise spotless forty-three year practice.

Under these circumstances, we find the appropriate sanction for respondent’s misconduct is a suspension from the practice of law for a period of one year. However, in light of the mitigating factors, we will defer six months of this suspension and place respondent on unsupervised probation for a period of one year, subject to the condition that any misconduct during the period of probation may be grounds for making the deferred portion of the suspension executory or imposing additional discipline, as appropriate.

ImDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Gasper J. Schiro, Louisiana Bar Roll number 11782, be suspended from the practice of law for a period of one year. It is further ordered that six months of this suspension shall be deferred. Following completion of the active portion of his suspension, respondent shall be placed on unsupervised probation for a period of one year, subject to the condition that any misconduct during the period of probation may be grounds for making the deferred portion of the suspension executory or imposing additional discipline, as appropriate. 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.

Rehearing Denied.

CALOGERO, C.J.,

dissents from denial of application for rehearing and assigns reasons.

I would grant the application for rehearing to allow respondent, Gasper J. Schiro, an opportunity to present oral argument prior to this court’s final decision in this disciplinary case. Pursuant to La. Sup. Ct. Rules, Rule 19, § ll(l)(b), Mr. Schiro had the right to file objections to the recommendations of the Office for Disciplinary Counsel, in which case he would have been entitled to oral argument prior to this court’s decision. However, because he mistakenly failed to file an opposition, the court accepted the recommendations without any input from Mr. Schiro. I would respect his unblemished record as an attorney for more than forty years, and excuse his failure to file his opposition within the original time period allowed. I would also be inclined to modify the penalty imposed by this court, perhaps to a public reprimand or suspension, fully deferred. I can attest to the fact that Mr. Schiro is a person of impeccable moral character who has long served the people of the City of New Orleans as a trusted elected official in the position of Recorder of Conveyances, a position to which he has been successively elected since 1979. Mr. Schiro is both a civic leader and a political leader, who is now asking this court to allow him an opportunity to pursue his right to oral argument prior to submitting to disciplinary action. Further, the tone of his application for rehearing is deferential and cordial.

      . Additionally, respondent later acknowledged he had little experience in personal injury cases and trial work, which was another reason he requested that Ms. Kogos handle the case.

      . At the time the suit was filed, there was no requirement that a service of process be made within any specific period of time. As a result, Ms. Kogos did not request service on the City until 1988. The City did not file its answer until 1992.

      . Mr. Witt told respondent that it would not be good for respondent's re-election campaign to have a disciplinary complaint against him. Mr. Witt also told respondent that he would go to the news media unless they worked something out.

      . The committee relied on Standards 4.42 (suspension is appropriate for conduct involving knowingly failing to perform services or engaging in a pattern of neglect), 4.52 (suspension is appropriate for conduct involving engaging in an area of law in which the lawyer is not competent), 4.62 (suspension is appropriate for conduct involving knowingly deceiving a client), and 7.2 (suspension for conduct involving knowingly violating a duty owed to the profession).

      . The record indicates the discussion between respondent and Mr. Witt on this issue was very informal in nature, calling into question whether there was ever a formal "offer" of settlement by respondent to Mr. Witt. Moreover, even assuming for sake of argument respondent made a settlement offer to Mr. Witt, it is clear Mr. Witt did not accept it. Under these circumstances, we cannot say the ODC has proven a violation of Rule 1.8(h) by clear and convincing evidence. See In re: Fazande, 03-2210 (La.1/21/04), 864 So.2d 174.


text:
    In re Elvin A. STERLING, Jr.
    No. 2004-B-2699.
    Supreme Court of Louisiana.
    Nov. 17, 2004.
    Rehearing Denied Jan. 7. 2005.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel,

IT IS ORDERED that Elvin A. Sterling, Jr., Louisiana Bar Roll number 27096, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19, pending further orders of this court.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Chet D. Traylor Justice, Supreme Court of Louisiana


author: | .PER CURIAM.

text:
    In re Antoine Z. LAURENT.
    No. 2004-B-2750.
    Supreme Court of Louisiana.
    Nov. 17, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

| .PER CURIAM.

This disciplinary matter arises from a rule to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Antoine Z. Laurent, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Respondent was the subject of prior disciplinary proceedings in In re: Laurent, 02-2163 (La.1/14/03), 835 So.2d 430 (“Laurent I ”). The record of that matter established that respondent has a small law practice that is primarily confined to the handling of uncontested domestic matters and criminal misdemeanor cases. Due to the nature of his practice, respondent generally did not have a substantial amount of funds in his client trust account. In order to satisfy the minimum balance requirements of his financial institution, and to avoid the payment of bank penalties and service charges, respondent began keeping his earned legal fees in the client trust account. He routinely wrote checks on the account to pay office expenses and personal debts, and he used the account to make monetary advances to clients and to satisfy litigation expenses prior to the settlement of the respective clients’ cases.

Following the filing of formal charges in Laurent I, respondent stipulated that he commingled personal funds with client funds and failed to cooperate with the ODC in its investigation. Finding that respondent’s misconduct “resulted from improper [ 2practice management skills rather than any intentional or selfish motive,” this court imposed a suspension of six months, which was deferred in full subject to respondent’s completion of a two-year period of probation governed by the following specified conditions:

(1) Respondent shall maintain his trust account in accordance with the Rules of Professional Conduct;
(2) Respondent shall make his operating and client trust account financial records subject to review by the ODC on a quarterly basis;
(3) In addition to his ordinary requirement of fifteen hours of mandatory continuing legal education, respondent shall complete an additional fifteen hours of continuing legal education annually by attending the Louisiana State Bar Association’s Ethics School, a Solo Practitioners and Small Firms seminar, or other seminars which provide education in the area of the maintenance of client trust accounts, and shall provide proof of attendance to the ODC; and
(4) Any violation of these conditions or other misconduct during the probationary period shall be grounds to make the deferred portion of the suspension executory and/or imposition of additional discipline, as appropriate.

On April 30, 2003, the disciplinary board appointed Harold E. Dearie, II to serve as respondent’s probation monitor. By letter to the disciplinary board dated June 18, 2003, Mr. Dearie requested that he be relieved of his duties, citing respondent’s failure to cooperate in the development of a probation plan. On August 4, 2003, the disciplinary board appointed Andre G. Coudrain to replace Mr. Dearie as respondent’s probation monitor.

In November 2003, respondent and Mr. Coudrain executed respondent’s probation plan. Among other provisions, the probation plan called for respondent to retain a CPA to audit and monitor his operating and trust accounts. On December 17, | s2003, Mr. Coudrain reported to the disciplinary board that respondent was not satisfying the conditions of his probation. Specifically, respondent did not engage a CPA, did not maintain accurate records concerning his trust account, did not provide Mr. Coudrain with any documentation concerning his operating account, and did not provide the ODC with any reports or documents in connection with his probation. Furthermore, Mr. Coudrain reported that respondent scheduled sufficient hours to meet the CLE requirement imposed as a condition of his probation, but none of the hours included small office practice management or client trust account issues.

On March 23, 2004, Mr. Coudrain reported to the disciplinary board that respondent had closed his law office but wanted to maintain his license to practice law. Mr. Coudrain also reported that respondent provided him with evidence of attendance at CLE seminars and provided bank records concerning his client trust account. However, respondent still had not spoken with a CPA to set up procedures for handling funds, and Mr. Coud-rain noted that respondent’s trust account records reflected withdrawals from the account “in certain amounts that are undocumented.”

By letter dated June 30, 2004, Mr. Coud-rain contacted respondent concerning his failure to schedule a third quarterly meeting during the month of June, as required by the probation plan. On August 23, 2004, Mr. Coudrain reported to the disciplinary board that respondent failed to reply to the June 30th letter.

DISCIPLINARY PROCEEDINGS

Rule to Revoke Probation

On October 15, 2004, the ODC filed a rule to revoke respondent’s probation. In addition to respondent’s failure to cooperate with his probation monitor, the ODC also premised its rule on respondent’s failure to cooperate in the investigation of a Rnewly filed complaint. The ODC prayed for revocation of respondent’s probation and the imposition of the previously deferred six-month suspension.

Disciplinary Board Recommendation

A hearing was conducted before an adjudicative panel of the disciplinary board on October 28, 2004. Respondent appeared at the hearing and stipulated that the information contained in Mr. Coudrain’s various letters was accurate. Respondent also stated that he had no objection to the revocation of his probation.

After considering the evidence presented and respondent’s stipulations, the board made the following factual findings:

1. Respondent failed to respond to reasonable requests to schedule meetings with his probation monitor.

2. Respondent failed to adequately demonstrate that he has maintained his client trust account in accordance with the Rules of Professional Conduct.

3. Respondent failed to comply with the requirement that he obtain additional CLE credits as required by the terms of his probation.

4. Respondent failed to cooperate with the ODC in its investigation of a complaint filed against him.

Based on these factual findings, the board concluded that respondent is in violation of his probation. Accordingly, the board recommended that respondent’s probation be revoked and that he be suspended from the practice of law for six months.

| ¡¿DISCUSSION

Respondent has stipulated to the accuracy of the information provided by his probation monitor concerning his failure to comply with the conditions of probation in Laurent I. Respondent also failed to cooperate with the ODC in its investigation of a complaint filed against him during the period of his probation. These facts support the disciplinary board’s conclusion that the revocation of respondent’s probation is warranted. Therefore, we will revoke respondent’s probation and make the previously deferred six-month suspension executory.

In light of the continued need to monitor respondent’s practice, we further order that respondent’s reinstatement to the practice of law shall be subject to a two-year period of probation governed by the conditions (l)-(3) as enumerated in Laurent I. In the event respondent violates these conditions, the ODC shall file an immediate report in this court and may request that we place respondent on interim suspension, if appropriate.

DECREE

For the reasons assigned, respondent’s probation is revoked and the previously deferred six-month suspension imposed in In re: Laurent, 02-2163 (La.1/14/03), 835 So.2d 430, is hereby made immediately executory. It is further ordered that upon his reinstatement to the practice of law, respondent shall be placed on probation for a period of two years, subject to the conditions set forth in this opinion. All costs and expenses in the matter are assessed against respondent, Antoine Z. Laurent, Louisiana Bar Roll number 8130, 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.

      . On March 1, 2004, the ODC received a complaint against respondent filed by Lenora Knight. On March 10, 2004, and again on April 23, 2004, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint, necessitating the issuance of a subpoena compelling him to appear and answer the complaint under oath.


author: 1 ¡WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES and Starlett Young v. Samuel BENNETTE, Sr.
    No. 04-CA-364.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, Ralph R. Alexis, IV, Assistant District Attorney, Harvey, LA, for Plaintiff/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   1 ¡WALTER J. ROTHSCHILD, Judge.

In this child support enforcement case, the State of Louisiana, Department of Social Services (“DSS”), and the recipient, Starlett Young, appeal a judgment of the juvenile court ordering the defendant, Samuel Bennette, Sr. to pay $125.00 per month toward his arrears, rather than $200.00 per month as recommended by the hearing officer. For the reasons which follow, we reverse the judgment of the juvenile court, reinstate the hearing officer’s recommendations, and we remand for an evidentiary hearing in accordance with LSA-Ch.C. art. 423(F), R.S. 46:236.5, and Jefferson Parish Juvenile Court Rule 14.6.

This matter initially arose in 1994 when DSS and Starlett Young filed a “Petition to Prove Paternity and Obtain Child Support” in the juvenile court for Jefferson Parish. Mr. Bennette filed an Answer denying Ms. Young’s allegations that he is the biological father of her two minor children. After blood testing was performed and a hearing was held on July 1,1996, the juvenile court judge found that Mr. Ben-nette was indeed the biological father of Ms. Young’s two children and ordered him to pay child support of $658.07 per month, plus $100.00 per |amonth toward his arrears, as well as court costs, retroactive to October 6, 1994. The arrears were determined to be $15,135.61 and were made executory, and an income assignment was ordered by the court.

The record reveals that for several years after Mr. Bennette was ordered to pay child support, DSS and Ms. Young had difficulty obtaining the court-ordered child support, and the arrears continued to increase. There were numerous hearing dates and some modifications of the child support obligation. Many income assignments were also ordered. The record reveals that Mr. Bennette’s arrears reached as high as $39,142.81 in July 2000.

On January 6, 2004, the matter came before the hearing officer on DSS’s motion to increase Mr. Bennette’s monthly payment of arrears. On this date, the hearing officer recommended that Mr. Bennette be ordered to pay $365.00 per month for support, $200.00 per month toward his arrears, and court costs. The juvenile court judge signed an order making the recommendations of the hearing officer an order of the court. Neither party signed the hearing officer’s recommendation form indicating that he/she agreed or disagreed with the recommendations. However, the minute entry reflects that Mr. Bennette did not agree with the recommendations, and the matter was referred to a juvenile court judge for a hearing.

On March 1, 2004, a hearing was held before the juvenile court judge regarding Mr. Bennette’s disagreement with the January 6, 2004 order requiring him to pay $200.00 per month toward his arrears. At the hearing, counsel for DSS stated that the arrears were $34,231.72 and that $200.00 per month added to his basic child support obligation would not exceed fifty percent of Mr. Bennette’s disposable earnings, which is the maximum that DSS may collect through an income assignment, pursuant to LSA-R.S. 13:3881. Mr. Ben-nette’s attorney replied that his client had been paying $50.00 per month toward his arrears, and |4that there had been no change in circumstances to warrant an increase in his monthly arrearage payments. He also argued that Mr. Bennette is supporting two other children in Mississippi, though it is not court-ordered support, and that an increase in his arrearage payments would cause a considerable hardship.

No testimony was taken and no evidence was admitted at this hearing. After a brief discussion with counsel for each party, the juvenile court judge ruled that Mr. Bennette would pay his arrears to DSS at a rate of $125.00 per month. It is from this ruling that DSS and the recipient, Starlett Young, appeal.

DISCUSSION

On appeal", DSS and Ms. Young assert that the trial court erred by reducing the amount which the defendant is ordered to pay toward his arrears from $200.00 per month to $125.00 per month. They argue that LSA-R.S. 46:236.3(B)(1) and LSA-R.S. 13:3881 authorize the State to seize up to fifty percent of Mr. Ben-nette’s disposable earnings via an income assignment to satisfy his child support obligation and payment toward the balance of his arrears, and $200.00 per month, in addition to his monthly child support, does not exceed fifty percent of his disposable earnings.

DSS filed a motion seeking to increase Mr. Bennett’s monthly payment toward his arrears, and the matter came before the hearing officer on January 6, 2004. At this hearing, the hearing officer recommended that Mr. Bennette be ordered to pay $365.00 per month in support and $200.00 per month toward his arrears, and this recommendation was made an order of the court. The record does not contain any evidence, including notes, pay stubs, tax returns, or calculations, to ^indicate how the hearing officer arrived at the monthly amount of support or the payment on the arrears. According to the minute entry from this hearing, Mr. Bennette disagreed with the hearing officer’s recommendations.

LSA-Ch.C. art. 423(F) provides in pertinent part:

Within ten days after transmittal of the hearing officer’s report and recommendation, any aggrieved party may serve and file objections in writing to findings or recommendations. The court will then hear the case de novo and enter judgment. For hearings utilizing the expedited process for establishment of paternity and establishment or enforcement of support, the delay for serving and filing objections shall be established pursuant to local rule as provided in RS.46:236.5. (Emphasis added.)

Jefferson Parish Juvenile Court Rules, Article XIV, Rule 14.6, provides:

If any party disagrees with the recommendation of the Hearing Officer, the said party may object in writing in accordance with La. Ch.C. art. 423(F). The writing may be by letter or by motion.
If a party objects to the recommendation of the hearing officer immediately, the matter will be set before the magistrate judge on that same day, if possible. If it is not possible to set the matter on the same day, it will be set at the next available date before the Judge before whom the case is allotted.

Although we do not have a transcript of the January 6, 2004 hearing, the minute entry indicates that Mr. Bennette immediately objected to the hearing officer’s recommendations and the matter was subsequently set before the juvenile court judge to hear the case “de novo” in accordance with LSA-Ch.C. art. 423(F).

The matter came before the juvenile court judge on March 1, 2004. However, the record before us reveals that there was no testimony or evidence presented before the juvenile court judge. Although DSS contends in its brief that Mr. Bennette is receiving $1,712.00 per month from a retirement annuity as evidenced by a January 2, 2001 statement, the record establishes that no income figures were discussed at the hearing and no documents, pay stubs, or other | (¡evidence was admitted. Facts referred to solely in arguments of counsel, in brief or otherwise, are not considered evidence. Ford Motor Credit Company v. George, 36,893 (La.App. 2 Cir. 3/5/03), 839 So.2d 1042, 1044-1045.

Considering the record before us, we find that the juvenile court did not properly conduct a hearing to determine whether or not the hearing officer’s recommendations were correctly based on the income and circumstances of the parties. Rather, after noting that DSS was asking for $200.00 per month and Mr. Bennette sought to continue paying $50.00, the juvenile court judge essentially “split the difference” and stated without reasons, “[t]he court is gonna order a Hundred and Twenty Five Dollars ($125.00) per month toward the arrears.” There was nothing presented to the court at this hearing from which she could conduct a meaningful de novo review and make an informed decision.

Accordingly, because the matter has not been fully and properly litigated before the juvenile court, and there are no figures, statements, testimony, or evidence in the record from which this court can render an informed decision, we decline to address the merits of DSS’s arguments on appeal as they are premature. Based on our finding that the matter was not properly heard “de novo,” we reverse the judgment of the juvenile court and reinstate the hearing officer’s recommendations. We remand the case to the juvenile court for an evidentiary hearing to determine whether the hearing officer’s recommendations were improper or in excess of the amount of income that the State can seize for child support and arrears, pursuant to LSA-R.S. 13:3881 and R.S. 46:236.3. At this hearing, the juvenile court judge may also wish to address the defendant’s argument that there has been no change in circumstances.

DECREE

For the reasons set forth above, we reverse the judgment of the juvenile court and reinstate the hearing officer’s recommendations. Further, we remand to 17the trial court for an evidentiary hearing and further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . LSA-R.S. 46:236.5(C)(1) provides in part:
      The judge or judges of the appropriate court or courts for the establishment of paternity or the establishment or enforcement of support and other domestic and family matters may appoint one or more hearing officers to hear paternity, support, and other domestic and family related matters.


author: 1 .WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Taisi J. ALO.
    No. 04-KA-62.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Martin Bellanger, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   1 .WALTER J. ROTHSCHILD, Judge.

Defendant, Taisi Alo, was charged in a bill of information on April 16, 2003 with possession of alprazolam in violation of LSA-R.S. 40:969(C). He pled not guilty and filed several pretrial motions, including a motion to suppress the evidence, which was denied prior to trial. He proceeded to trial on October 20, 2003, and a six-person jury found him guilty as charged on October 21, 2003. Defendant was sentenced to five years at hard labor. FACTS

At approximately 4:50 a.m. on April 1, 2003, Deputy John Terranova with the Kenner Police Department responded to a disturbance call at the Juke Box restaurant on Williams Blvd. When he entered the restaurant, he observed defendant slumped over at the bar asleep with his head in a plate of food. Deputy Terranova woke defendant, had him pay for his meal, and escorted him outside to further investigate the matter. According to Deputy Terranova, defendant did not know where he was or what was going on. Deputy Terranova asked him for | .identification, which defendant had to retrieve from his wallet inside his cab that was parked at the restaurant. When defendant retrieved his wallet, Deputy Terranova observed a clear plastic bag containing green vegetable-like matter in the car. Deputy Terra-nova retrieved the bag and arrested defendant.

Defendant was transported to the Ken-ner jail where he was searched by Deputy Michael Lacrouts. Deputy Lacrouts found two white tablets in the left front pocket of defendant’s pants. The pills later tested positive for alprazolam.

At trial, defendant testified he suffered from back problems resulting from three separate car accidents. He stated he obtained the pills from a friend to relieve his back pain. He paid $5 for the pills. Defendant testified he was unaware what the pills were, but his friend told him the pills would help the pain and help him sleep. He stated he took one-fourth of one pill, which knocked him out, approximately ten minutes before he was arrested.

DISCUSSION

In his sole assignment of error, defendant argues that the evidence was insufficient to support his conviction for possession of alprazolam. He contends that the State failed to prove he had knowledge that the pills were illegal anxiety medication. He asserts that he believed the pills were simply medication for back pain. Defendant concedes the State proved the possession element but alleges the State failed to prove the necessary criminal intent.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Under Jackson, a reviewing court does not ask itself whether it believes the evidence at trial established guilt beyond a reasonable doubt but whether a rational trier of fact |4could have reasonably found defendant guilty beyond a reasonable doubt. In applying this standard, the reviewing court does not assess the credibility of witnesses, nor reweigh evidence. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writ denied, 03-2745 (La.2/13/04), 867 So.2d 688.

Alprazolam is a controlled dangerous substance classified in Schedule IV. LSA-R.S. 40:964. Possession of alprazolam is defined in LSA-R.S. 40:969(0, which provides that it is unlawful for any person to knowingly or intentionally possess a controlled dangerous substance as classified in Schedule IV. To support a conviction for possession of a controlled dangerous substance, the State must prove that the defendant was in possession of the illegal drug and that he knowingly possessed the drug. State v. Chisley, 03-426 (La.App. 5 Cir. 10/15/03), 860 So.2d 45, 48, writ denied, 03-3358 (La.4/2/04), 869 So.2d 874.

Guilty knowledge is an essential element of the crime of possession of a controlled dangerous substance, and such knowledge may be inferred from the circumstances. Id. Whether an accused knows a substance he possesses is a narcotic drug is a matter of proof by direct or circumstantial evidence. State v. Goiner, 410 So.2d 1085, 1087 (La.1982); State v. McMooain, 95-2103 (La.App. 1 Cir. 9/27/96), 680 So.2d 1370, 1373. Circumstantial evidence consists 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. Bradley, supra at 84. The rule of circumstantial evidence is that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438.

In the instant case, the evidence of the defendant’s guilty knowledge is circumstantial. Defendant testified that he thought the pills he obtained from his friend were back pain pills and did not know they were actually alprazolam. Although defendant stated he suffered from back pain and had taken prescription | ¡¿medication in the past for the pain, he admitted he did not have a current prescription for any type of pain medication. He testified that, on the night of his arrest, he specifically went to a bar looking for his friend, Nino, in order to get pills. He knew Nino had pills because he had seen Nino give them to other people in the bar. Defendant stated he paid Nino $5 for the pills. It is reasonable to infer from these facts that defendant intended to possess a controlled dangerous substance for which he did not have a prescription.

Additionally, the jury heard evidence of defendant’s prior convictions which included first degree burglary, possession with intent to distribute marijuana, attempted distribution of marijuana, possession of PCP, and unauthorized use of a moveable valued over $500. Defendant’s credibility was also questioned when he admitted he failed to accurately answer a legal questionnaire in connection with his accidents. On the questionnaire, defendant indicated he had not been in a prior accident, which was contrary to the truth.

The record supports a finding that defendant knowingly possessed a controlled dangerous substance. Defendant conceded and the evidence supports he was in actual possession of the alprazolam and the factual circumstances surrounding defendant’s possession support the jury’s conclusion that defendant knowingly possessed the controlled dangerous substance. Therefore, the State sufficiently proved all the essential elements of possession of al-prazolam. Accordingly, this assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). This review revealed one patent error.

The trial court failed to advise defendant of the prescriptive period for filing an application for post-conviction relief as required by LSA-C.Cr.P. art. 930.8, which provides that a court shall not consider an application for post-conviction | ¿relief filed more than two years after the judgment of the conviction and sentence has become final. Accordingly, we remand the case and order the trial court to send defendant written notice of the two-year prescriptive period for post-conviction relief within ten days of the rendering of the appellate opinion and to file written proof in the record that defendant received the notice. See State v. Lee, 03-901 (La.App. 5 Cir. 12/9/03), 864 So.2d 654, 661.

DECREE

For the reasons set forth above, we affirm the defendant’s conviction and sentence for possession of alprazolam. We remand to the trial court to send notice to the defendant of the two-year prescriptive period for filing post-conviction relief.

AFFIRMED; REMANDED WITH INSTRUCTIONS.


author: | {JAMES L. CANNELLA, Judge.

text:
    Lois JOSEPH v. Rowdy D. HOUSTON, United Services Automobile Association.
    No. 04-CA-350.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Raymond S. Steib, Gretna, LA, for PlaintiffAppellee.
    Valerie M. Briggs, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   | {JAMES L. CANNELLA, Judge.

In this automobile accident case, the Defendant, United Services Automobile Association (USAA), appeals from the trial court judgment, rendered in favor of the Plaintiff, Lois Joseph (Joseph), in the amount of $14,869.00 plus interest and costs, reduced to the policy limits of $10,000. For the reasons which follow, we affirm.

The accident occurred on March 10, 2000 between Joseph and Rowdy Houston (Houston) At the time of the accident Houston was insured by USAA. The facts of the accident were disputed at trial. Joseph contends that she entered the West-bank Expressway in Jefferson Parish from First Metro Insurance Agency. She contends that she was in the right lane when Houston, in front of her, entered the West-bank Expressway from Whitney Avenue. She moved into the center lane and passed Houston. She then proceeded to move into the right lane to turn towards her destination. She testified that she activated her turn indicator and entered the right lane in front of Houston with 80 or 90 feet to spare. Houston then increased his speed behind her. When she was forced to stop behind traffic, he ran |sinto the back of her vehicle, forcing her vehicle into the automobile in front of her. Joseph was driving a 1995 Mazda 626. Her daughter, Rachel Cyprian, was a passenger.

Houston’s version of the accident is quite different. He testified that he drove into the middle lane of the Westbank Expressway from his wife’s place of business, Labor Ready. His wife, Karen Houston, and a friend were in his truck. He contends that Joseph was in the right lane of traffic behind a bus. As he approached, she moved into the middle lane in front of him at a very slow speed. She passed the bus and moved back into the right lane. Houston testified that he then passed Joseph and moved into the right lane in front of her in order to turn onto Terry Parkway. Houston contends that Joseph made several gestures toward him as he passed her. Houston testified that Joseph then moved into the middle lane, sped up and passed him and moved quickly back into the right lane stopping suddenly, and causing him to run into the back of her vehicle. Karen Houston testified, corroborating her husband’s version of the events.

Officer Devina Brown of the Crescent City Connection Police Department investigated the accident and testified that she gave a ticket to both Joseph for improper lane use and Houston for careless operation of his vehicle. Both parties testified that the charges were dismissed.

Five days after the accident, upon the advice of her attorney, Joseph sought treatment for her injuries from a chiropractor, Leroy Stagni (Stagni). Stagni diagnosed Joseph’s condition as a cervical and lumbar sprain and recommended that she receive treatment twice a week. Joseph presented for treatment regularly for three months and then steadily decreased her visits.

Following the testimony of these witnesses, the trial court took the matter under advisement. On October 29, 2003, he rendered judgment in favor of Joseph |4and against USAA in the total amount of $14,869, $2119 for medical expenses, $250 for reimbursement of her deductible and $12,500 for five months of pain and suffering, as well as interest from the date of judicial demand and costs. On November 4, 2003, USAA filed a motion for new trial and, in the memoranda in support of the motion, argued that the judgment should be reduced to $10,000, its policy limits. On January 23, 2004, a judgment was rendered, granting USAA’s motion for new trial and ruling that “the plaintiffs damages be limited to $10,000 (TEN THOUSAND DOLLARS) plus interest and Court costs in accordance with the policy of insurance entered into evidence at the trial of this matter on behalf of the defendant, United Services Automobile Association.” It is from these two judgments that USAA appeals.

On appeal, USAA assigns four errors. First, it argues that the trial court erred in failing to apportion fault between Joseph and Houston and that failure, in accordance with La. C.C.P. arts. 1917 and 1812(C), is legal error requiring de novo review of the facts by this Court.

Joseph argues, generally, that no appeal lies from a consent judgment and that the judgment rendered on January 23, 2004, on the motion for new trial, was a consent judgment. Further, on this specific assignment of error, Joseph argues that the trial court judgment effectively did apportion fault by finding USAA liable for 100% of Joseph’s damages. The trial court found no comparative fault on the part of Joseph, following a credibility determination in Joseph’s favor.

In reviewing the judgment on the motion for new trial, as well as the transcript of the hearing, while we do find reference to the parties’ consent in the transcript, we find no evidence that there was any intent to settle anything other than the policy limits issue raised by the motion for new trial. We do not find, as argued by Joseph, any indication of intent on the part of USAA, to settle the entire lawsuit and to forego appellate rights. In fact, the judgment does not even | sevidence the fact that it was being entered by the consent of the parties, only making reference to “agreement of counsel regarding the policy language set forth in the United Services Automobile Association insurance agreement. ...” Thus, we find no merit in this argument and will consider the appeal.

As to USAA’s first assignment of error, we find that it is well settled that where a judgment is silent as to any part of a demand or any issue that was litigated, that demand is deemed rejected. Mooers v. Sosa, 01-286 (La.App. 5th Cir.9/25/01), 798 So.2d 200; Talbot v. C & C Millworks, Inc., 97-1489 (La.App. 1st Cir.6/29/98), 715 So.2d 153, 155. In this case, the matter of Joseph’s fault was put at issue or litigated both in the defense answer and at trial. Since the judgment was silent on the issue of Joseph’s fault, it is deemed rejected, not omitted as argued by USAA. Moreover, while the judgment herein did not expressly state that it found Joseph free of fault, it certainly implied as much by finding USAA solely liable for her damages. Thus, we find no merit in USAA’s argument that the trial court failed to apportion fault. To the contrary, we find that the trial court did apportion fault by finding USAA 100% liable for Joseph’s damages.

Next, USAA argues that the trial court erred in its factual determinations. USAA argues that the trial court should have found Joseph 100% at fault in causing the accident.

Joseph argues, to the contrary, that the factual determinations made by the trial court were correct and supported by the record. The record does not support a finding of manifest error on the part of the trial court. Further, Joseph argues that the trial court made a credibility determination which is not to be disturbed by the appellate court.

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong | fim light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide that it would have found the facts of the case differently. The reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221. Moreover, one of the basic tenets of the manifest error standard of review is that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently.” Parish Nat. Bank v. Ott, 2002-1562 (La.2/25/03), 841 So.2d 749, 753.

Upon review of the record, we find that the facts surrounding how the accident happened were thoroughly contested. The driver of each vehicle had a distinctly different version of the events. Under Joseph’s version, the accident was caused solely by the fault of Houston. Under Houston’s version, Joseph would bear at least some, if not all, of the fault in causing the accident. Based on the trial court’s judgment in favor of Joseph and against USAA, it is clear that the trial court made a credibility determination in favor of Joseph. While we cannot say that, as the trier of fact, we would have given the same weight to the evidence presented, we find no grounds upon which to disturb the trial court credibility and factual determinations. Thus, we find no manifest error in the trial court conclusion that Houston was solely at fault and Joseph was not at fault in causing the accident.

The last two arguments presented by USAA involve quantum. USAA argues that the trial court erred in awarding damages for pain and suffering in the amount of $2500 for each of five months following the accident. More specifically, USAA argues that the award was excessive because the trial court 17recognized that Joseph failed to mitigate her damages and she continued to work throughout her treatment. USAA also argues that the trial court erred in awarding Joseph $250 for the amount she allegedly paid as an insurance deductible where there was no evidence of the payment other than her testimony.

Joseph argues that the award of damages is a matter of vast trial court discretion and there is no showing that the trial court abused its discretion herein. Further, Joseph argues, that the “Consent Judgment” reducing the damages from $14,869 to $10,000 removes any and all validity from USAA’s quantum argument.

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). And, “[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient.” Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Before an appellate court can disturb the amount of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate. Reck v. Stevens, supra; Gunn v. Robertson, 01-0347 (La.App. 5th Cir.11/14/01), 801 So.2d 555, 562.

In reviewing the record, we find no abuse of the trial court’s discretion in setting the damage award herein. Joseph testified that she sustained injuries to her neck, back and right leg. The record indicates that Joseph experienced frequent, |sdull pain that radiated down her right leg. She also suffered tingling in her leg, arms and hand. The pain was worse in the morning, manifesting itself in stiffness. The pain affected her ability to sleep, but did not affect her ability to work. Joseph worked at Memorial Baptist Hospital as an electrocardiogram (EKG) technician. Stagni indicated that Joseph had spasms in the mid and upper cervical region on the right. She also had tenderness in the mid and upper cervical region on the right. Her range of motion in the cervical area was restricted and painful in flexion, extension, and right lateral flexion. Joseph also had spasms, tenderness and pain in the lumbar region. Stagni originally recommended that Joseph come in for two treatments per week. After several months her pain decreased and he reduced the recommended treatments. The record indicates that Joseph did not go in for treatments in August, but resumed in September and October for a few visits. The trial court limited the award to the 5 month period following the accident from March through July, and refused reimbursement for any period thereafter, following the month skip in treatments. Thus, following our review of the record, we do not find that the trial court abused its discretion in its damage assessment, awarding reimbursement for medical expenses for five months and $2500 per month for pain and suffering for the same five month period, while rejecting the request for any further award. Further, since the judgment on the motion for new trial limited Joseph’s damages to a total of $10,000, the pain and suffering award was effectively reduced for the five month period and it is no longer clear that the $250 reimbursement for the payment of the deductible remained part of the judgment.

Accordingly, based on the foregoing, we affirm the trial court judgment in favor of Joseph and against USAA in the amount of $10,000 plus interest and court costs. Costs of this appeal are to be paid by USAA.

AFFIRMED.

      . Houston was originally named as a Defendant in the suit but was dismissed prior to the commencement of trial because he had never been served.


author: | JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Anthony CROCKETT.
    No. 04-KA-201.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Paul D. Connick, Jr., District Attorney, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Anne Wallis, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, JAMES L. CANNELLA.
   | JAMES L. CANNELLA, Judge.

The Defendant, Anthony Crockett, appeals from his conviction of armed robbery and his sentence to 13 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. For the reasons which follow, we affirm and remand.

On December 5, 2002, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with armed robbery in violation of La. R.S. 14:64. The Defendant was arraigned on December 6, 2002 and pled not guilty. On July 22 and 23, 2003, the case was tried before a twelve-person jury.

FACTS

Harmon Wright (Wright), the victim, testified that, on November 10, 2002, he got off work at 4:00 p.m. and went to the apartment of a friend, Donald Johnson (Johnson), where he had been residing. Wright had a paycheck for $550 in his pocket and $75 in cash from a catering event that he had worked the previous night. Johnson accompanied Wright as he cashed his check. Wright and Johnson lathen went shopping for groceries. They went back to Johnson’s apartment and Wright cooked dinner for a group including himself, Johnson, the Defendant, and another “guy.” They then watched a movie. When the movie ended, Johnson left the apartment with the “guy,” leaving the Defendant and Wright alone in the apartment. While the Defendant and Wright were watching television, a young lady came to the apartment, sat on the sofa next to the Defendant, and said to him, “Black, let’s go get something off the corner.” The Defendant and the lady then left.

A minute or two later, at approximately 11:00 or 11:30 p.m., the Defendant came back inside the house with a red shirt wrapped around his head. He produced a rust-colored .9 mm gun and told Wright to “give it up.” Wright gave the Defendant the cash that he had in his pocket, which was approximately $600. The Defendant told Wright to go into the kitchen and the Defendant then left the apartment. Wright put his belongings into his vehicle and went to the police station around the corner to report the robbery. He did not call the police because there was no telephone in the apartment.

Once Wright got to the police station, he told an officer that he had just been robbed by an individual named “Anthony.” Wright was eventually shown a photographic lineup and positively identified the Defendant as the robber, immediately and without hesitation. Wright also positively identified the Defendant in court. Wright testified that Johnson later threatened him if he did not drop the charges. Wright stated that he thought Johnson had set him up.

Jefferson Parish Sheriffs Office Deputy Thomas Bryson testified that Wright walked into the Second District at approximately midnight and advised the deputy that he had been robbed at gunpoint. Wright told him that he knew the individual, that his name was “Anthony,” and that he recognized the Defendant when the Defendant came back to rob him.

| ¿Jefferson Parish Sheriffs Office Lieutenant Norman Schultz testified that he was contacted by Deputy Bryson regarding an armed robbery, that he met with Wright that night, and that Wright told him who the individual was who robbed him and gave him his address. Lt. Schultz testified that he sent Deputy Randall to that address to see who was inside the apartment. Deputy Randall brought back Johnson who gave Lt. Schultz the Defendant’s name.

Based on that information, Lt. Schultz compiled . a photographic lineup and showed it to Wright, who positively identified the Defendant. Lt. Schultz testified that Wright immediately identified the Defendant, that there was no hesitation, and that he appeared to be sure of his decision. Lt. Schultz issued a warrant for the Defendant’s arrest and the Defendant was arrested a day or two later. Lt. Schultz read the Defendant his rights and the Defendant waived them. Lt. Schultz then took a statement from the Defendant.

In his first statement dated November 13, 2002, the Defendant said that the victim, Harmon Wright, who he knew as “Big Herb,” had been staying with him for a week. He explained that he knew Wright through his brother, Donald Johnson, and that Wright and his brother were friends. The Defendant stated that he lived with his brother on Helen Street for approximately two weeks, and that he and Wright moved in at approximately the same time.

On November 10, 2002 the Defendant and Wright got drunk and had a disagreement at approximately 5:00 p.m. about Wright not buying food. At approximately 10:00 or 11:00 p.m., Kim, the Defendant’s female friend, came over to the apartment. The Defendant did not know her last name, but knew that she resided on King Frederick Court. The Defendant said that he left with Kim to go have sex, and then returned approximately thirty minutes later, not three to five minutes later as Wright claimed.

IsWhen the Defendant returned to the apartment, Wright was leaving in his vehicle. He knew something was wrong when Wright did not stop and talk to him. The Defendant denied going back into the apartment with Wright after he left with Kim. He returned to the apartment at approximately 4:00 or 5:00 a.m. and saw that Johnson had already gone to work.

The Defendant said that he saw Johnson after the robbery, and that Johnson told him that the police had come to see him about the Defendant, and that they had come to arrest the Defendant. The Defendant stated that he was wearing blue Gir-baud jeans with light blue stitching and two white T-shirts that night.

The Defendant denied robbing anybody when he came back to the apartment and he denied having or owning a gun. He stated that he did not know of anybody else who would have robbed Wright that night. He admitted that he had given the officer permission to search his living area for weapons. The Defendant said that somebody else could have come into the apartment while he was gone, because it is a high-crime area. He stated that when he left the apartment, there was a party outside at the end of Helen and Fredericks Streets, and that he saw a couple of men outside about his height wearing blue jeans and T-shirts.

Lt. Schultz testified that he removed two white T-shirts and a pair of blue jeans with light blue stitching from the apartment. He explained that the Defendant picked them up from a laundry basket and told him that those were the clothes he had worn that night.

Jefferson Parish Sheriffs Office Detective Kevin Decker testified that, on July 17, 2003, the State requested that he come to court because the Defendant had advised his attorney that he had additional information in reference to the investigation. He read the Defendant his rights, which the Defendant waived, and the Defendant gave a statement in the presence of his attorney.

pin this statement, dated July 17, 2003, the Defendant explained that, on the night of the robbery, he, Johnson, Wright, Slim (Johnson’s black male friend), and Kim, also known as Pickles (a black female friend), were sitting in Apartment A at 233 Helen Street in Gretna drinking and getting drunk. Eventually, everyone except him and Wright left the apartment.

All of a sudden, Kim came into the house and asked the Defendant to come show her something. The Defendant left with Kim, and they walked around the corner. Kim informed him that they were about to rob Wright, and the Defendant said in his statement that he told them that he did not want anything to do with it. He and Kim then went to a house on Nell Street, which was approximately three or four blocks away from where the Defendant was staying on Helen Street. The Defendant did not know whose house he was in.

As they went inside, they walked up the stairs and went into a room. The Defendant stated that Johnson, Kurt, and Slim were in there, and that they were talking about how they had just robbed somebody. The Defendant did not ask them who they had robbed, but he assumed it was Wright, since Kim had told him earlier that they had said they were going to rob him.

The Defendant said that Johnson, Kurt, and Slim were dividing the money. He stated that he thought he heard Kurt say that he only got $300. The Defendant said he was in the room for ten minutes. After Kurt divided the money, he asked the Defendant if he wanted $20, but the Defendant said that he did not take it. Kurt, who had a gun, said that if anyone said anything about this, that he would kill them.

Afterwards, the Defendant walked home alone, and Wright drove passed him. The Defendant tried to stop Wright and talk to him, but Wright just kept going. The Defendant said he did not change clothes when he was at the apartment |7on Nell Street. When Wright saw the Defendant, the Defendant was wearing the same clothes that he had on when he left the apartment on Helen Street.

The Defendant stated that Johnson was a twenty-four or twenty-five-year-old black male. He did not know Kurt’s last name, but stated that he was a twenty-two or twenty-three-year-old black male, approximately 5'9" or 5'10", about the Defendant’s build but approximately twenty pounds heavier, with a complexion a little lighter than the Defendant’s with no tattoos. The Defendant did not know Slim’s name, but stated that Slim was approximately thirty years old, a black male, with a light brown complexion and no noticeable tattoos.

The Defendant stated that Slim was wearing a black T-shirt, jean shorts, and sandals; that Johnson was wearing gray jogging pants with a white “A-liner” undershirt; and that Kurt was wearing a black pair of pants and a white “A-liner” shirt and that Kurt had a burgundy shirt sitting on the side of him. The Defendant said that he was wearing blue jeans with light blue stitches, a regular plain white cotton crew neck T-shirt, and black shoes. The Defendant stated that, when he saw the burgundy shirt on the bed, he also saw a silver and black semi-automatic handgun there.

The Defendant explained that Kurt carried a gun and that he knew Kurt from seeing him around the neighborhood. The Defendant said that he and Johnson were not related, but that he had known Johnson for twelve years, and that he loved him like a brother.

The Defendant explained that he did not come forward with this information before, because Johnson told him they did not have any evidence against the Defendant, and because Kurt had threatened to kill him if he said anything. Then the Defendant stated that he started thinking that he could go to trial and get a sixty to ninety-nine-year sentence when he did not receive any money. The Defendant | Ssaid he was willing to cooperate fully with the sheriffs office in the investigation, and that he was innocent of the crime and should have come forward earlier.

Detective Decker testified that he went to the area of Nell and Frederick Streets, but was unable to locate Kim, Slim, or Kurt. He explained that the Defendant was unable to give him those individuals’ last names, addresses, or telephone numbers. Detective Decker testified that Johnson gave him the first name of “Jamal” for Slim, but that he was never able to contact Slim. He further testified that Johnson was unable to assist him in his investigation to corroborate anything that the Defendant told him. He admitted that he had less than a week to work on this project.

Robert Johnson, who was called as a witness by the defense, testified that he was friends with the Defendant. He explained that, on November 10, 2002, he gave a birthday party for his daughter, that the party lasted from 2:00 to 8:00 p.m., that the Defendant was there the entire time, and that the Defendant was wearing blue Girbaud jeans with light stitching, a white T-shirt, and dark blue or black tennis shoes. He testified that he lived around the corner from the Defendant in the same neighborhood, and that it was a high-crime area. He stated that there were a lot of armed robberies in the area because it was a drug area.

Debra Gauthreaux, who was also called as a defense witness, testified that she was employed by the Jefferson Parish Sheriffs Office as commander of the central records division, and that they maintained all records including 911 calls. She identified a service report for the 200 block of Helen Street in Gretna and described some of the calls made to that area from September 1, 2002 to December 31, 2002. There were aggravated battery, armed robbery, residence burglary, theft, and miscellaneous complaints. She explained that 35 calls were made between those dates, and that eight resulted in a police report being made.

| (¡Following trial, the Defendant was found guilty as charged. The Defendant's motion for new trial was denied on December 1, 2003. On December 3, 2003, the trial court sentenced the Defendant to imprisonment at hard labor for 13 years without benefit of parole, probation, or suspension of sentence. The Defendant filed a motion for appeal on September 17, 2003, which was granted.

On appeal the Defendant assigns two errors. In the Defendant’s second assignment of error, the Defendant argues that the evidence was insufficient to support the conviction. It is well settled that when issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including inadmissible evidence, which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issue regarding trial errors becomes moot. State v. George, 95-0110 (La.10/16/95), 661 So.2d 975, 978; State v. Conner, 02-363 (La.App. 5th Cir.11/13/02), 833 So.2d 396, 401, writ denied, 02-3064 (La.4/25/03), 842 So.2d 396. Therefore, we will address the Defendant’s second assignment of error first.

ASSIGNMENT OF ERROR NUMBER TWO

The Defendant argues that the evidence was insufficient to support the verdict because the State failed to prove identity. The State responds that the evidence was sufficient to prove the identity of the Defendant as the perpetrator of the armed robbery beyond a reasonable doubt.

In determining a challenge to the sufficiency of the evidence, the reviewing court must decide whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82.

Here, the Defendant was convicted of armed robbery which is defined by La. R.S. 14:64 as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. When the key issue in the case is identification, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Billard, 03-319 (La.App. 5th Cir.7/29/03), 852 So.2d 1069, 1072, writ denied, 03-2437 (La.2/6/04), 865 So.2d 739.

As to the element of identity, the State produced the testimony of Wright, the robbery victim, who positively identified the Defendant in a photographic line-up and at trial, without hesitation, asserting that he was positive. Wright explained that he knew the Defendant was the robber, because when the Defendant returned to the apartment, he was wearing the same clothes as when he left. Additionally, Wright recognized the voice instantly as the Defendant’s.

Wright further testified that he was familiar with the Defendant’s appearance: his weight, height, skin color, and haircut; that he was familiar with what the Defendant and Johnson looked like; that he had worked with Johnson in the past; that he had lived with the Defendant for approximately one week and saw him on a daily basis; that he shared a room one night with the Defendant while staying with Johnson; that the Defendant and Johnson did not look or sound similar to one another; that it could not have been Johnson who robbed him; and that he was certain that it was the Defendant.

lnThe Defendant argues that Wright’s testimony was not credible because of inconsistencies between his trial testimony and his statement to the officers on the night of the robbery. Defense cross-examined Wright regarding these alleged inconsistencies at trial. counsel

Wright testified at trial that the gun was rust-colored. He did not remember saying in his statement the night of the robbery that the gun was a silver-colored gun. He testified at trial , that the Defendant was wearing a white tank top T-shirt, blue fleece jogging pants, and brown shoes. He did not recall saying in his statement that the shoes were black. Also, after reviewing his statement at trial, Wright observed that the officer indicated that he had said that the Defendant’s pants were black.

Although there were some discrepancies between Wright’s trial testimony and his statement at the time of the offense regarding the Defendant’s clothing and the gun, the jury obviously concluded that these were minor compared to the testimony regarding Wright’s familiarity with the Defendant’s appearance and voice and his positive identification of the Defendant in the photographic lineup and at trial. Additionally, Lt. Schultz testified that the clothing he recovered from the Defendant, two white T-shirts and a pair of blue jeans with light stitching, was very similar to what Wright had described that the perpetrator was wearing.

Credibility determinations rest with the trier-of-fact and will not be reweighed on appeal. State v. Tapps, 02-0547 (La.App. 5th Cir.10/29/02), 832 So.2d 995, 1001, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789.

Based on the foregoing, we find that the evidence was sufficient for the jury to find that the State met its burden of proving the essential elements of the crime, including the perpetrator’s identity, beyond a reasonable doubt. This assignment of error lacks merit.

I ^ASSIGNMENT OF ERROR NUMBER ONE

The Defendant argues that the trial court erred in failing to suppress the second statement he made which he contends was made during the course of plea negotiations. He further contends that the erroneous admission of the statement cannot be found to be harmless error, because the jurors informed him post-verdict that it was this statement that caused them to convict him.

The State argues that the Defendant’s second statement was not part of a plea discussion and, therefore, it was properly admitted. Further, the State points out that, even if it had consented to plea negotiations, the Defendant provided no credible information that the sheriffs office could use. Thus, it is argued that there was no error in the admission of the statement.

On the morning originally scheduled for trial, defense counsel said that he was ready to pick a jury, but that the Defendant had informed him that he had information he would like to share with the district attorney’s office and the sheriffs office which could possibly lead to bringing the proper parties before the court. The prosecutor stated that she wanted to put a couple of things on the record:

Number one, there are no deals on the table, nor will there — there ever be for the foreseeable future, so I don’t want this to be construed as a deal in progress. There are no deals, he is charged with armed robbery, he will be tried for armed robbery, as we stand right now.

She said that it was her understanding that the Defendant was waiving his rights and willing to give a statement and that Detective Decker was on his way to court to take a statement from him. She stated that she would like the court to question the Defendant regarding waiving his rights and giving a statement.

The trial judge continued the trial from July 17, 2003 to July 22, 2003. He advised the Defendant that on July 22, 2003 his trial was going forward absent the |13defense or the State saying they did not want to go forward that day. The trial judge stated:

Okay, that’s all I wanted — to understand, and the very last thing I want to understand is, from this moment on, there are no deals on the table, that, as far as I’m concerned, we do go to trial Tuesday morning. Understand that? The Defendant indicated that he under-

stood. Defense counsel said that the Defendant was previously offered eleven years but refused that, maintaining his innocence. Defense counsel further stated:

Any deals, obviously, all deals are off the table. I think he understands that. But he also refused any deals that were offered to him before that.

Defense counsel also stated:

And I’ve also given him a hundred warnings about what’s about to transpire, being truthful with the officers, and that we are going to trial on Tuesday, unless something breaks with the — ■ with the Sheriffs Office or something— else comes up.

Defense counsel added that he might not be present for every meeting, that he warned the Defendant of that, that the Defendant understood that, and that the Defendant was willing to talk to the police officers as many times as necessary.

The last page of the July 17 transcript indicates that a bench conference was later held. The court reporter noted that the bench conference was off the record and not fully recorded. During the portion that was recorded, the prosecutor told defense counsel she was not making the deal until she had some credible information. She said that she would do the best in her power to help. Defense counsel stated that it was all he needed to hear and that he knew she could not give him more than that. Later on July 17, 2003, the Defendant waived his rights and gave the second statement, as was detailed above.

On July 22, 2003, the State called this ease for trial. Defense counsel stated that he had filed a motion to suppress the second statement and that he was ready to go forward with it. The State said it would get the officer there.

|uOn July 23, 2003, in support of his motion, defense counsel argued that the State not be allowed to introduce into evidence the Defendant’s second statement because it violated the hearsay rules and because it was made as part of plea negotiations. The prosecutor noted that she had made it very clear on the record that whatever statement was given she intended to use at trial, that the Defendant had waived his rights, and that there was no deal under consideration. The State argued that a defendant’s statement, the statement of a party, that is going to be used against him at trial, is not hearsay. The State also argued that the statement did not have to-be an inculpatory statement or a confession, and that the statement was admissible under La. C.E. art. 801(D)(2)(a).

After hearing arguments of counsel, the trial judge ruled that the two statements could be used by the State. He found that the statement was not hearsay and that •there had been no deal made with the prosecutor prior to the Defendant giving his second statement.

The law regarding the admissibility of statements made during plea discussions is found in La. C.E. art. 410, which provides in pertinent part:

Except as otherwise provided in this Article, evidence of the following is not, in any civil or criminal proceeding, admissible against the party who made the plea or was a participant in the plea discussions:
(4) Any statement made in the course of plea discussions with an attorney for or other representative of the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn or set aside.

In State v. Lewis, 539 So.2d 1199 (La.1989), cited by both the Defendant and the State in their briefs, the Louisiana Supreme Court discussed the law regarding statements made during plea discussions:

The rules serve to promote negotiated disposition of criminal cases by giving the defendant protection from involuntary self-incrimination at two ends of the plea-bargaining spectrum: |1Bwhile he is negotiating over the disposition of his case and while he is offering or entering a plea that is rejected or later withdrawn ....

Id. at 1202 (citations omitted).

In determining whether defendant’s statement was given voluntarily, the “totality of the circumstances” inquiry requires the reviewing court to investigate and analyze “both the characteristics of the accused and the details of the interrogation.” ... Based upon a complete review of all relevant considerations on the issue of voluntariness, the ultimate question must be answered of whether the statement was “the product of an essentially free and unconstrained choice” or the result of an overborne will....

Id. at 1205 (citations omitted).

In the instant case, the record indicates that the Defendant’s second statement was not made in the course of plea discussions and, therefore, that the trial judge did not err in admitting it into evidence.

Defense counsel advised the prosecutor that the Defendant wanted to provide information that the sheriffs office could use to bring the party or parties who committed the crime to court. The prosecutor agreed to consider the information and to continue the trial for investigation of the claims that the Defendant made in his second statement. The prosecutor clearly stated on the record that no deals were on the table nor would there ever be for the foreseeable future, and that she did not want this to be construed as a deal in progress. Additionally, the trial judge stated that he understood that there were no deals on the table.

The prosecutor said that she would be willing to help if she had some additional credible information. However, she never got any credible information from the Defendant. The sheriffs office investigated the information provided by the Defendant, but was unable to corroborate it.

| u;Here, after reviewing the totality of the circumstances, we find that the second statement given by the Defendant was not made during the course of plea discussions and that the Defendant made the statement of his own free choice, although perhaps in the hope that it might lead to a plea discussion and ultimately a plea agreement. Thus, we find that the trial court did not err in denying the motion to suppress the second statement.

Next, for the sake of discussion, we will consider that the statement was admitted in error. The erroneous admission of a confession or a statement is a trial error which is subject to harmless error analysis. State v. Koon, 96-1208 (La.5/20/97), 704 So.2d 756, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997); State v. McCorkle, 97-966 (La.App. 5th Cir.2/25/98), 708 So.2d 1212, 1217 (citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).

An error is harmless if it does not affect substantial rights of an accused. La.C.Cr.P. art. 921. Such errors are harmless if a guilty verdict was surely unattributable to the error. State v.Code, 627 So.2d 1373, 1384 (La.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994); State v. Winfrey, 97-427 (La.App. 5th Cir.10/28/97), 703 So.2d 63, 78, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481 (citations omitted).

In the instant case, the State introduced strong evidence establishing the Defendant’s guilt. The evidence shows that Wright cashed his paycheck with Johnson present; that Johnson, the Defendant, Wright, and another man spent the evening together in Johnson’s apartment; that Johnson and the other man left the apartment; that the Defendant’s female friend came to the apartment shortly thereafter; that she and the Defendant left the apartment; that a minute or two later an individual identified by Wright as the Defendant came back into the apartment with a red shirt wrapped around his head and wearing the same clothes that the 117Pefendant had just left in and robbed the Defendant at gunpoint; and that Wright recognized the Defendant and his voice. Wright was unequivocal in his identification of the Defendant as the perpetrator. Also, clothing belonging to the Defendant matched the description of that worn by the robber.

Most importantly, the Defendant’s statement was not inculpatory. The Defendant did not admit in his statement that he committed the offense with which he was charged. The Defendant’s statement was essentially exculpatory, with the Defendant denying participation in the crime and implicating other people as the robbers.

The Defendant argues that the error was not harmless, because jurors allegedly told him post-verdict that they found the Defendant guilty based on his second statement. No evidence was admitted to support this assertion and we note that it would likely have been inadmissible. La. C.E. art. 606(B).

In light of the foregoing, we find that there was no error in the trial court ruling admitting the second statement at trial and, even if viewed as erroneously admitted, any error in the admission of the Defendant’s second statement was harmless. This assignment of error lacks merit.

ERROR PATENT DISCUSSION

The Defendant requests an error patent review. The record was reviewed for errors patent, according to La.C.Cr.P. art. 920: State v. Oliveavix, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5th Cir.1990). Our review reveals that the Defendant was not advised of the two-year prescriptive period for filing an application for post-conviction relief, pursuant to La.C.Cr.P. art. 930.8. Therefore, the case must be remanded with instructions to the trial court to send appropriate written notice to the Defendant of the statement of the law regarding the prescriptive period for post conviction relief and to file written proof in the record that the Defendant received the notice. State v. Esteen, 01-879 (La.App. 5th Cir.5/15/02), 821 So.2d 60, 78, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983.

Accordingly, for the reasons set out above, the Defendant’s conviction for armed robbery and his sentence to 13 years imprisonment at hard labor, without benefit of parole, probation or suspension of sentence, are affirmed. The case is remanded to the district court to provide proof in the record of the Defendant’s receipt of appropriate notice, under La. C.Cr.P. art. 930.8, of the prescriptive period for post conviction relief.

AFFIRMED AND REMANDED.

      . The Defendant said in his second statement dated July 17, 2003 that he and Johnson were not brothers, but that he considered Johnson a brother and loved him like a brother.

      . The appeal was premature when it was filed after conviction but before sentencing. However, this prematurity was cured by the subsequent sentencing. State v. Nichols, 03-1317 (La.App. 5th Cir.3/30/04), 871 So.2d 590.

      . The July 17, 2003 transcript was attached as a joint exhibit by the State and the defense (State's Exhibit 1, Defense Exhibit 1) at the hearing on the motion for new trial on October 21, 2003.