author: hLOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Jocelyn DOOLEY, Appellant.
    Nos. 38,763-KA, 38,764-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      John Cucci, Jr., Shreveport, for Appellant.
    Schuyler Marvin, District Attorney, Melissa Sugar, John Michael Lawrence, Assistant District Attorneys, for Appellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   hLOLLEY, J.

This criminal appeal arises from the Twenty Sixth Judicial District Court, Parish of Bossier, State of Louisiana. The defendant,' Jocelyn B. Dooley (“Jocelyn”), was tried and convicted by a unanimous jury of second degree murder pursuant to La. R.S. 14:30.1 and sentenced to life imprisonment. Defendant was also convicted of obstruction of justice pursuant to La. R.S. 14:130.1 and subsequently sentenced to serve 40 years at hard labor, to run consecutive to the life sentence. Defendant now appeals both convictions and sentences. For the following reasons we affirm.

FACTS

The defendant was married to Yol Dooley, III (“Dooley”), the son of the former Bossier Parish Sheriff, Vol Dooley, Jr. During their marriage, the couple’s home was located near Plain Dealing, Louisiana. Dooley worked at a Shreveport casino and Jocelyn worked at another local casino. The couple had a history of separation and reconciliation, and, although Dooley filed for divorce in 2000, the couple had never divorced. At some point in time, Jocelyn began dating a co-worker, Jeffrey Kosden (“Kosden”). Shortly thereafter, Kosden began working at a bar in Shreveport named The Blind Tiger.

On June 4, 2001, Jocelyn and Kosden obtained a marriage license from the Cad-do Parish Clerk of Court. At the trial of the matter, Kosden testified that he believed that Jocelyn had previously gotten a divorce from Dooley. Jocelyn testified at trial that she wanted to reconcile with Dooley Rand did not want to marry Kos-den, but got the marriage license with him to placate him and her parents.

On the evening of June 5, 2001, Dooley got off work at approximately 10:30 p.m. and went to The Blind Tiger bar with his friend, Brody Breaux (“Breaux”). Jocelyn was already at The Blind Tiger with her friend, Nanette Vaughn (“Vaughn”). It was Kosden’s testimony that he was working at the Blind Tiger that night, and he recalled serving Dooley and Breaux a pitcher of beer.

At trial, Breaux testified, over the defendant’s objection, that Dooley expressed a desire to sit where he could avoid contact with Jocelyn. Witnesses testified that Jocelyn did go to Dooley’s table and talked with him. After a short period of time at the bar, Dooley and Breaux left The Blind Tiger and went across the street to another bar named Mojo’s. Breaux testified that the reason they went to Mojo’s was to get away from the defendant so they sat upstairs to avoid being seen by her.

The testimony at trial indicated that Jocelyn and Vaughn left The Blind Tiger to look for Dooley. Vaughn testified that as they were leaving, Kosden gave Jocelyn something wrapped in a paper towel. Jocelyn told Vaughn that it was poison to give to Dooley to cause him to' have a heart attack. Kosden testified that no such exchange took place.

Breaux testified that when the defendant and Vaughn went into Mojo’s Bar, Dooley refused to talk to Jocelyn. It was Breaux’s testimony that Dooley used the excuse of needing to use the restroom to slip out the back door to go home. This was the last time Dooley was seen alive | apublicly. Vaughn testified that she and the defendant stayed at Mojo’s Bar for a little while longer, and then she went home to go to sleep.

According to Vaughn, she was awakened at about 2:30 a.m. by a phone call from Jocelyn, who told her to come quickly because she was in trouble and needed Vaughn’s help. Vaughn dressed and quickly drove toward Plain Dealing without asking Jocelyn what had happened. While driving through Benton, Vaughn saw flashing car lights, signaling her to stop. Vaughn testified that it was Jocelyn signaling her to stop and that when stopped Jocelyn told her that she had shot and killed Dooley after they - argued. As Jocelyn was telling her .this, Kosden drove up in his pickup truck.

Kosden testified that at about 2:30 a.m., he was still working at The Blind Tiger when he received a telephone call from Jocelyn telling him. that she had killed Dooley, and she needed his help. Kosden immediately left work and went to his apartment to pick up a roll of plastic sheeting, rope and shovels. He then drove to Benton, where he met Jocelyn and Vaughn.

Vaughn testified that while discussing their options, she suggested that they call 911, which idea she stated was declined by Jocelyn who was worried that she would lose her children, claiming a fear of the political power of Dooley’s family. According to Vaughn, Kosden then suggested they get rid of Dooley’s body. Vaughn stated that she then parked her car at a nearby parking lot, and the three of them used both Kosden’s truck and the defendant’s truck to drive to the Dooley residence.

|4Both Kosden and Vaughn testified that when they arrived at the Dooley home, they found Dooley’s body on the bedroom floor. Although there were some differences in their testimony as to where the body was located in the. home, they both testified that Dooley was found on his side and clearly was dead, with a single gunshot wound to his chest. Both Vaughn and Kosden related that Jocelyn told them she had shot Dooley as he was walking back from the bathroom.

Vaughn and Kosden described how the three of them wrapped Dooley’s body in plastic sheeting and tied it up with a yellow “ski rope” brought by Kosden. . They explained that Jocelyn then cleaned up the bedroom and collected all of Dooley’s clothing. They testified, that the plastic-enclosed body was then covered in a rug taken from the bedroom floor. Kosden and Vaughn testified that Kosden took the revolver used to shoot Dooley and a box of cartridges when they left the Dooley residence. They testified that the three of them loaded Dooley’s covered body into Dooley’s truck, which was driven by the defendant. The testimony was that the two trucks left the Dooley residence in search of a spot to bury the body.

Kosden and Vaughn both described how the group found a spot off of a logging road in rural, north Caddo Parish, how Kosden dug a shallow hole, and how the three of them pulled the body into the make shift grave. Kosden stated that he took special care to tightly pack the dirt around the body so there would not be any sinking or settling of the dirt following a rain. Vaughn and Jocelyn then collected leaves, pine straw, and plants to 15put over the grave to conceal it, taking until nearly dawn for the three of them to finish burying Dooley’s body.

Kosden and Vaughn both testified that afterwards, they followed the defendant to Martin Luther King Drive to leave Dooley’s truck in hopes that it would give the impression that Dooley had gone into a bad neighborhood after leaving Mojo’s Bar. They both described that as the three drove toward Shreveport, Vaughn and Jocelyn threw articles of Dooley’s clothing out of the window. Vaughn testified that as they were crossing a bridge, she threw out one of Dooley’s tennis shoes. The shoe did not go over the bridge into the water, but bounced off one of the supports and landed on the bridge. Vaughn and Kosden testified that after leaving Dooley’s truck, they then drove to Kosden’s apartment where Kosden burned any of Dooley’s remaining clothing. After that, they cleaned up and rested. Vaughn stated that Kosden told her and Jocelyn that they had to take the secret of what had occurred to their graves. Kosden then called the defendant’s parents and told them that he and Jocelyn had overslept and that he would come get the Dooley children and bring them to school. He left around 9:00 a.m. to pick up the children. He further testified that he threw the revolver used in the murder and ammunition into the Red River.

On June 7, 2001, Dooley’s family reported to the Bossier Parish Sheriffs Office that he was missing, and the case was originally investigated as a missing persons case. The sheriffs office began questioning family members and fiíends as tq the whereabouts of Dooley. The investigation revealed that no one had seen Dooley after the evening of lfiJune 6, 2001. Dooley’s pickup truck was found in Shreveport. It had been broken into and some articles were missing from the interi- or of the truck.

On June 9, 2001, Detective Tom Myrick (“Det. Myrick”) with the Bossier Parish Sheriffs Department went to Jocelyn’s residence to interview her. Jocelyn told Det. Myrick that she had not seen Dooley since he left Mojo’s Bar in the early morning of June 6, 2001. The testimony at trial also revealed that defendant told Det. Myrick that she had tried to call Dooley on his cell phone, but was unable to reach him. It was reported that Jocelyn stated that she then drove to Dooley’s house in Plain Dealing, but did not find him there. She then reported to Det. Myrick that after that she drove to Vaughn’s house where, they watched movies the remainder of the night.

As part of the investigation, the cell phone records for Dooley and the defendant were obtained. They included information as to what cell phone tower was used when Dooley’s and Jocelyn’s cell phones were used on the night Dooley disappeared. Det. Myrick testified that this cell phone tower information did not coincide with the statements made by Jocelyn as to where she was when these calls were made and received on her cell phone on the night in question.

On June 14, 2001, Michael Effinger (“Ef-finger”) contacted the Bossier Parish Sheriffs Department identifying himself as a friend of Vaughn’s. Effinger told the officers that Vaughn had telephoned him, relating how Jocelyn had killed Dooley, and how she had helped Jocelyn dispose of his body. Effinger stated that Vaughn asked him to go to the abridge to recover Dooley’s tennis shoe, because she was concerned that it did not make it into' the water when she disposed of it.

Vaughn was interviewed ori June 14, 2001, by Det. Myrick. She told him that she had gone to The Blind Tiger and to Mojo’s Bar with Jocelyn. She further told him that afterwards she had gone home. Vaughn described to Det. Myrick that a few hours later she received a phone call from Jocelyn who told her she was in trouble and needed her assistance. Vaughn related that she met Jocelyn and Kosden in Benton, and went with them to Dooley’s home where they found him dead. Her statement further explained how she helped Jocelyn and Kosden dispose of Dooley’s body by wrapping it in plastic, tying it with yellow rope, and then burying it in a shallow grave in north Caddo Parish. Vaughn then took the officers to the place where Dooley’s body was buried. Det. Myrick testified that when Vaughn showed them the site, there was nothing above ground indicating that the ground had been moved as the dirt did not appear to be disturbed and it was covered with leaves and growing plants. According to the officers, but for Vaughn’s assistance, the detectives would not have been able to find where the body had been buried. They found. Dooley’s body in the condition described by Vaughn, wrapped in plastic and bound with yellow rope.

Jocelyn and Kosden were arrested for the murder of Dooley, and neither gave any statements admitting to the crime. Searches of the Dooley home did not reveal any evidence of Dooley being shot at the residence.

Prior to indictments being issued against Jocelyn and Kosden, a preliminary examination was held on the motions- of both Jocelyn and |8Kosden. The state presented testimony of Det. Myrick who detailed Vaughn’s statement implicating Jocelyn and Kosden and the finding of Dooley’s body. At the conclusion of the preliminary examination, the trial court denied Jocelyn’s motion to reduce bail/ bond finding that, “Mrs. Dooley is at least guilty of some form of homicide.” Following this ruling, the defendant filed several motions for recusal, alleging that the statement by the trial judge demonstrated his inability to conduct a fair trial. The trial judge denied the motions without conducting a recusal hearing or referring the motions to another trial judge. Jocelyn sought a writ application, which was denied by this court.

Jocelyn was charged by indictment with one count of second degree murder and one count of obstruction of justice. The state charged Kosden by indictment with being a principal to second degree murder. Various pre-trial motions filed by Jocelyn and Kosden were heard by the trial court. This included a motion to change venue filed by Kosden, alleging he was entitled to a change of venue because the victim was the son and namesake of the former Bossier Parish Sheriff, Vol Dooley, Jr. The motion further pointed out that a portrait of the former sheriff was on display in the Bossier Parish Courthouse. As such, Kos-den argued, it would be impossible to select a jury that did not know the former sheriff or have opinions about him. Kod-sen’s motion to change venue was not originally in the record lodged with this appeal. At the hearing on Kosden’s motion, no evidence | 9was adduced.

The trial court reviewed Jocelyn’s motion for change of venue and deferred ruling on her motion until there was an attempt to select a jury. The trial court further held that if they were not able to select a jury, then a change of venue would be granted. The trial court then ordered that the picture of the victim’s father, the former Bossier Parish Sheriff, be removed from display in the courthouse during the trial.

Prior to trial, Vaughn was granted “use immunity” for her testimony. Kosden ultimately accepted a plea agreement. He pled guilty to the charge of obstruction of justice and agreed to testify at trial against Jocelyn.

When the case finally came to trial, many of the prospective jurors questioned were aware of it, and many either knew or knew of the victim’s father and former sheriff. Some had read about the case in the newspapers or watched coverage of it on television. Others had even heard an in-jail phone interview of Jocelyn by a local television station, for which she used her own attorney’s cell phone to conduct the interview.

Of the jurors eventually selected, most stated that they had heard of the case. However, after questioning by the state, the defense, and the trial court, all jurors selected asserted that they had no preconceived ideas as to the case. Jocelyn’s objections as to each of these jurors were denied by the trial court. Nevertheless, the jury pool was not depleted in the selection of the jury. Jocelyn did not use all of her peremptory challenges.

Jocelyn did not produce any evidence in connection with her motion to change venue. Following the jury selection, the trial court denied the Impending motion to change venue.

At the trial of the matter, Alairis Payne (“Payne”) testified that in June 2001, she was an inmate at the Bossier Parish jail with Jocelyn. Payne testified that Jocelyn admitted to shooting Dooley, and that she and her friends had disposed of the body using plastic sheeting and yellow rope. Payne gave this information to her attorney and provided a statement to the police. At the time Payne first gave this statement to the police about Jocelyn's jailhouse admission, it was not public knowledge that Dooley’s body had been wrapped in plastic sheeting and tied with a yellow rope.

Jocelyn testified at trial and gave an entirely different story from either Vaughn or Kosden. She testified that she and Dooley were not separated at the time of his death, but had reconciled, and that she was living at the family residence. Jocelyn also claimed that there were no problems with the marriage, and that she and Dooley had a good relationship. She further asserted that they had not fought on the night Dooley disappeared, and that he had never harmed or threatened her. Although Jocelyn admitted dating Kosden, she stated at the trial that she was not interested in a serious relationship with him. She admitted going with Kosden to obtain a marriage license on June 5, 2001, but asserted that she only did it to placate Kosden and her family while she worked on preserving her marriage to Dooley.

Jocelyn denied shooting Dooley or having any knowledge or involvement in the removal and concealment of his body. She testified to going with Vaughn to The Blind Tiger and Mojo’s Bar after work on the [n evening of June 5, 2001, where she saw Dooley. She stated that was the last time she saw Dooley alive. Jocelyn further testified that she had no explanation as to why Vaughn and Kosden would both state she admitted to shooting Dooley, or that they had helped her dispose of his body.

At the conclusion of the trial, the jury returned a unanimous verdict of guilty as charged of second degree murder and obstruction of justice. The trial court ordered a pre-sentence investigation. Jocelyn filed a motion for appeal, which was denied by the trial court as premature, because she had not been sentenced. Jocelyn also filed a motion for a new trial, asserting insufficiency of the evidence, and trial defects. By a supplemental motion for a new trial, she asserted the verdict was defective in that the jury held a secret ballot.

Both motions for a new trial were heard on the same day as sentencing and were denied by the trial court. Jocelyn waived her delays in sentencing and was then sentenced by the trial court to life imprisonment, without the benefit of probation, parole or suspension of sentence on the' second degree murder conviction. She was also sentenced to serve 40 years at hard labor, to run consecutive to the life sentence on the obstruction of justice conviction. Jocelyn’s motion to reconsider the sentence was denied by the trial court and this appeal ensued.

DISCUSSION

Sufficiency of the Evidence

On appeal, defendant raises five assignments of error. First, we will address defendant’s assignment of error regarding the sufficiency of L ¡.evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,-253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Jocelyn contends that the trial court erred because it failed to grant her motion for a judgment of acquittal based on sufficiency of evidence. Jocelyn argues that there was no evidence that she committed the crimes of which she was convicted or that the state’s evidence, testimony from two admitted participants who were granted immunity, did not exclude all reasonable possibilities of innocence. Defendant was convicted pursuant to the following two statutes.

Louisiana R.S. 14:30.1 provides, in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm.

Louisiana R.S. 14:130.1 provides, in pertinent part:

A. The crime of obstruction of justice is any of the following when | ^committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or
Substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or
(b) At the location of storage, transfer, or place or review of any such evidence.

La. C. Cr. P. art. 851(1) provides that the court shall grant a motion for new trial whenever the verdict is contrary to the law and the evidence, i.e., that the evidence was insufficient to sustain the conviction. A motion for new trial presents only the issue of the weight of the evidence. Under this article the trial judge has wide discretion to determine the weight of the evidence. The refusal to grant such a motion is not subject to appellate review, except for error of law. State v. Mitchell, 26,070 (La.App.2d Cir.06/22/94), 639 So.2d 391, writ denied, 94-1981 (La.12/16/94), 648 So.2d 387, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Robinson, 624 So.2d 1260 (La.App. 2d Cir.1993), writ denied, 93-2899 (La.02/11/94), 634 So.2d 372; State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). Defendant’s arguments before the trial court, and now this court, center around the |uquestion of sufficiency of evidence, and would be properly raised in the trial court by a motion for post-verdict judgment of acquittal under La. C. Cr. P. art. 821; State v. Korman, supra.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

|1sThis court’s authority .to. review questions of fact in a criminal'case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend, to credibility determinations made by the trier of fact... La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255.

In the present case, the evidence, viewed in a light most favorable to the state, was sufficient to convict the defendant of second degree murder. The state adduced evidence that the victim had been shot in the chest with a .38 caliber bullet. Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30il A. The discharge of a fireman at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997); State v. Brooks, 36,855 (La. App.2d Cir.03/05/03), 839 So.2d 1075, writ denied, 2003-0974 (La.11/07/03), 857 So.2d 517.

|1fiThe state produced two eyewitnesses, Jocelyn’s boyfriend, and her best friend, who both saw Dooley in his home with a bullet hole in his chest. These witnesses also testified that Jocelyn told them she had shot the victim; and the two helped her dispose of the body by wrapping it in plastic and burying it in the woods. The three then hid or destroyed all other physical evidence of the crime. Nothing in these two witnesses’ testimony was contradicted by the physical evidence. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.05/08/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 98-0282 (La.06/26/98), 719 So.2d 1048.

Jocelyn testified at trial that she did not shoot her husband, and that she had no knowledge of his murder or the concealment of his body. In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misiden-tification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.04/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.02/21/97), 688 So.2d 520. Here, Jocelyn failed to provide any explanation for any of the state’s evidence that contradicted her testimony. It is clear that the state met its burden of negating any reasonable probability of misidentifieation.

Similarly, the state also has the affirmative duty of proving beyond a reasonable doubt that the killing was not in self-defense. State v. Arnold, 30,282 (La.App.2d Cir.01/21/98), 706 So.2d 578. Self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La.App.2d Cir.03/30/94), 634 So.2d 937; State v. Jones, 600 So.2d 875 (La.App. 1st Cir.1992), writ denied, 92-2351 (La.05/12/95), 654 So.2d 346. The state clearly met that burden of proof through the testimony of Kosden and Vaughn that they saw no evidence of any struggle, and that Jocelyn told them that Dooley was shot as he came from the bathroom. In addition, Jocelyn testified that she and her husband had not fought or quarreled that night, and that he had not threatened to harm her. The defendant’s own testimony also negated any possible claims that the killing was in self-defense.

On appeal, Jocelyn argues that the evidence is insufficient because the two witnesses, Kosden and Vaughn, were granted immunity for their testimony, rendering such not credible. This is an issue of the determination of the credibility of the witnesses and the weight to be assigned to their respective testimony, i.e., a matter of the weight of the evidence and not the sufficiency. The defendant has not provided this court with any legal basis to review the jury’s credibility determination as to the testimony of the witnesses or the defendant.

After viewing the totality of the evidence presented in a light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that the evidence presented by the state was | ^sufficient to find the defendant guilty of second degree murder, and obstruction of justice, thus Jocelyn’s arguments to the contrary are without merit.

Venue

In her next assignment of error, Jocelyn alleges that the trial court erred by failing to grant her motion for change of venue and failing to hold a contradictory hearing on that issue. Specifically, the defendant argues that the pretrial publicity made it impossible for her to receive a fair jury, and that the trial court was in error to deny her objections to the selection of the jury.

The state argues that the care and ease in selecting the jury shows the defendant failed in her burden of proving that pretrial publicity and community prejudice threatened the defendant’s right to a fair trial.

Louisiana C. Cr. P. art. 621 provides:

A motion for a change of venue may be filed by either the state or the defendant. It shall be filed in accordance with Article 521; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial of the merits. The motion shall be in writing, sworn to by mover or his counsel, and shall contain:
(1) Allegations of fact upon which the motion is based; and
(2) A statement that the motion is not made for the purpose of delay, but to obtain a fair and impartial trial.
A contradictory hearing shall be held upon the motion.
Louisiana C. Cr. P. art. 622 provides:
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the 11flprosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

Although the defendant filed a motion to change venue and the trial court deferred ruling on the motion until there was an attempt to select a jury, it was the trial court who brought up the motion to change venue after the jury was selected, not Jocelyn. The record is irrefutable that during voir dire Jocelyn failed to put on evidence of the possible influence of the publicity. The record does not show, and the defendant readily acknowledges in brief on appeal, that there is no evidence in the record as to the pre trial publicity.

A defendant is guaranteed an impartial jury and a fair trial. La. Const, art. I, § 16. To accomplish this end, the law provides for a change of venue when a defendant establishes that he will be unable to obtain an impartial jury or a fair trial at the place of original venue. La. C. Cr. P. art. 622; State v. Clark, 2002-1463 (La.06/27/03), 851 So.2d 1055, cert. denied, — U.S. -, 124 S.Ct. 1433, 158 L.Ed.2d 98 (2004). In reviewing whether or not a trial court erred in a motion to change venue, several relevant factors have been enumerated, those being:

(1) the nature of pre trial publicity and the particular degree to which it has circulated in the community;
(2) the connection of government officials with the release of the publicity;
(3) the length of time between the dissemination of the publicity and the trial;
1 an(4) the severity and notoriety of the offense;
(5)the area from which the jury is to be drawn;
(6) other events occurring in the community which either affect or reflect the • attitude of the community or individual jurors toward the defendant; and
(7) any factors likely to affect the candor and veracity of the prospective jurors on the voir dire.

See, State v. Clark, supra; State v. Bell, 315 So.2d 307 (La.1975).

Louisiana C. Cr. P. art. 622 places the burden of proof on the defendant to show that there exists such prejudice in the collective mind of the community that a fair trial is impossible. State v. Vaccaro, 411 So.2d 415 (La.1982). The defendant cannot meet this burden by merely showing that there is widespread public knowledge of the facts surrounding the crime or the defendant. Instead, “the defendant must show the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case before trial.” State v. Clark, supra, at 1057, citing State v. Frank, 99-0553 (La.01/17/01), 803 So.2d 1. Thus, a defendant is not entitled to a jury entirely ignorant of his ease and cannot prevail on a motion to change venue merely by showing a general level of public awareness about the crime. State v. Thompson, 516 So.2d 349, 352 (La.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988).

In the instant case, Jocelyn argues that the voir dire transcript shows many of the prospective jurors were aware of the facts of the crime, and nearly half expressed to some extent that they already had an opinion regarding the offense. But, the mere existence of any preconceived notion as to the guilt or innocence of the defendant, without more, is insufficient to Igflfebuf the presumption of the juror’s impartiality. It is sufficient that the trial court can establish that such a juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); State v. Clark, supra. In brief, Jocelyn makes a general argument that many of the prospective jurors were aware of the facts of the case, and had opinions about the case. But, significantly, she fails to point to a single prospective juror who was not able to lay aside his or her prejudice or opinion to render a verdict based on the evidence.

It is difficult to even apply the seven State v. Bell, supra, factors to this case because of the complete lack of evidence introduced to the trial court as to the nature of pretrial publicity and the particular degree to which it had circulated in the community, the connection of government officials with the release of the publicity, the length of time between the dissemination of the publicity and the trial, or other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant. Obviously, the instant case was a notorious case, commanding much pre trial publicity. Nevertheless, the only evidence in the record as to this publicity is the comments by the trial court and the defendant’s trial counsel acknowledgment that this case had generated a fair amount of publicity. Most notable is the fact that there is nothing in the record for this court to review to determine the nature or particular degree of this publicity. Jocelyn’s argument, that she wasj^prejudiced by this pre trial publicity, is further weakened by her trial counsel’s acknowledgment to the trial court that the defendant generated some of this publicity herself by granting phone interviews from her jail cell, using her attorney’s cell phone.

The record is clear that a full and complete voir dire was conducted as to all prospective jurors by both the prosecution and defense. There does not appear to have been any qualification placed upon the questioning by the trial court judge. Full opportunity was given to explore each juror’s possible knowledge of the case and any preconceived opinions which they may have had.

The trial court judge had previously announced that he would rule on the motion to change venue at the conclusion of jury selection. The motion was denied, to which the defense objected. A further review of this record does not show that the defense urged a contradictory hearing on the motion to change venue. Additionally, it must be viewed as trial strategy on the defense’s part, as all of the allowed peremptory challenges were not exhausted. The record further reflects that back-strikes were allowed but still not exercised by the defense. This court finds no merit to this assignment of error.

Trial Judge Recusal

Jocelyn’s next assignment of error is that the trial court judge failed to recuse himself from the case and failed to set a hearing on that issue before an ad hoc judge.

| ^Louisiana C. Cr. P. art. 671(A) provides:

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial....

Shortly after arrest, and before the grand jury issued indictments, the defendant sought a preliminary hearing. At the conclusion of the hearing, the defendant asked that she be released because of the lack of probable cause. The trial court denied defendant’s motion, finding that the evidence presented established that “Mrs. Dooley is at least guilty of some form of homicide.” Shortly after this ruling, the defendant filed several motions for recusal, alleging this statement by the trial court demonstrated its inability to conduct a fair trial. The trial court denied the motions without conducting a recusal hearing or referring the motions to another trial judge.

On appeal, Jocelyn argues that the trial court was biased because it found her to be “guilty” of some form of homicide. La. C. Cr. P. art. 671 A(l) provides that in a criminal case “a judge shall be recused when he is biased, prejudiced or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial.”

A trial judge is presumed to be impartial. The burden is on the | ^defendant to prove otherwise. The grounds for recusal based on bias “must be of a substantial nature.” State v. Branch, 30,733 (La.App.2d Cir.07/06/98), 714 So.2d 1277, 1285-6, writ denied, 98-2359 (La.01/08/99), 734 So.2d 1227. A mere expression of a judge’s belief in the defendant’s guilt is not a ground for recusation. State v. Woods, 124 La. 738, 50 So. 671 (1909).

In the present case, the trial court made the statement at issue in the defendant’s preliminary examination. The basic purpose of a preliminary examination is to determine whether there is probable cause to charge a defendant with a crime and hold him or her over for trial. La. C. Cr. P. art. 296. Our earlier finding is still applicable; i.e.,- the trial court’s statement that the defendant was guilty of some form of homicide was merely another way of stating that there was probable cause to charge her with some form of homicide. Jocelyn has failed to show how the trial court’s statement represented impermissible bias. Likewise, she has failed to show how the trial court erred in denying the motion to recuse without a hearing. Moreover, the defendant incorrectly argues that the trial court must refer her motion to recuse to another judge before denying it. The jurisprudence has consistently held that if a trial court judge finds the ground for recusation not to be valid he may deny the motion without referring it to another judge. State v. Rollins, supra. This assignment is found to be without merit.

Continuance

In her third assignment of error, Jocelyn argues that the District Court judge erred when he failed to grant a short continuance of the trial to allow | ¡>Rfor a defense witness to become available after surgery. However, the record does not show that defendant filed a written motion requesting a recess, nor does the record reflect that the defendant objected to the trial court’s ruling, denying the defendant’s request.

Louisiana C. Cr. P. art. 708 provides:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary-adjournment of a trial or hearing that occurs after a trial or hearing has commenced.
Louisiana C. Cr. P. art. 709 provides:
A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and

(3) Facts showing due diligence used in an effort to procure attendance of the witness.

Specifically, Jocelyn argues that the trial court erred when it refused to grant her a “continuance” during the trial because of the unavailability of a witness, Mrs. Brody Breaux, the wife of one of the state’s witnesses. Pursuant to La. C. Cr. P. art. 708, Jocelyn was required to request a recess since trial had already commenced. Although her motion may have been improperly styled as one for “continuance,” it can be reviewed as if it had been properly named as one for recess. State v. Smith, 25,841 (La.App.2d Cir.02/23/94), 632 So.2d 887. The standard of review of a motion forj^recess is the same as the review of a motion for a continuance. State v. White, 389 So.2d 1300 (La.1980). The granting or denial of a motion for continuance or a motion for recess is within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a showing of abuse and specific prejudice. La. C. Cr. P. art. 712; State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190; State v. Gipson, 28,113 (La.App.2d Cir.06/26/96), 677 So.2d 544.

On appeal, Jocelyn alleges that the motion was an oral motion made in an unrecorded bench conference when the defendant learned that the witness would not be available. La. C. Cr. P. art. 707 provides that a motion for continuance shall be in writing. However, under extenuating circumstances, an oral motion is sufficient. State v. Bullard, 29,662 (La.App.2d Cir.09/24/97), 700 So.2d 1051.

Despite the fact that there is no written motion, or a record of Jocelyn’s contemporaneous objection to the trial court’s denial of an oral motion to recess the trial, a review of the transcript of the hearing on the Jocelyn’s motion for new trial does not show that the trial court had considered and denied her motion for a “continuance” because of a missing witness.

Jocelyn has not specifically provided allegations as to how the trial court abused its discretion or how she was specifically prejudiced. There is a dispute as to what grounds Jocelyn used in requesting a recess from the trial court. On appeal, the defendant stated that the witness was needed to show “the sorid [sic] lifestyle of the victim and the fact that he was an 127illegal drug user and dealer.” During argument in her motion for new trial, the defendant stated the witness “would have shown that there was [sic] possibly other people that could have shot and killed the deceased.” At no point in the trial or this appeal has the defendant provided any specifics as to how the missing witness would have proven those allegations, or how the testimony would have resulted in a different outcome of the trial. Thus, we find this assignment to be without merit.

Hearsay Statements

In Jocelyn’s last assignment of error, she contends the District Court judge erred where it failed to exclude prejudicial hearsay statements allegedly made by Dooley. The defendant argues that the testimony of statements by the victim that he wanted to leave the bar to avoid the defendant was impermissible hearsay, and prejudicial.

Louisiana C.E. art. 803(3) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant’s then existing condition or his future action. A statement of memory or belief, however, is not admissible to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s testament.

At trial, the state questioned the victim’s friend, Breaux, about why Dooley left Mojo’s Bar. When Breaux attempted to testify that Dooley Instated he wanted to leave and go home to avoid Jocelyn, defense counsel objected to these statements being inadmissible hearsay. The trial judge denied the objection, finding the statements to be admissible to show Dooley’s state of mind, pursuant to La. C.E. art. 803(3).

The extrajudicial statements of a murder victim’s fear or revulsion of the defendant is an admissible exception to the hearsay rule to show the state of mind of the victim and may be used as circumstantial evidence of the victim’s behavior and subsequent conduct or course of action. State v. Brown, 562 So.2d 868 (La.1990). In the instant case, the state offered statements of the victim’s dislike or revulsion of the defendant. Declarations of revulsion can be distinguished from declarations of fear because declarations of fear by a victim “consistently reflect upon defendant’s past or future aggressive actions, defendant’s ' culpability, or the dispositive issue of the case.” State v. Brown, supra at 879. On the other hand statements of revulsion, such as “I don’t like the defendant,” “may circumstantially evince declar-ant’s expected reaction to defendant or show the probable nature of their future conduct, without necessarily a[d]verting to defendant’s aggressive or culpable acts.” State v. Brown, supra at 879. As further stated by the Louisiana Supreme Court in State v. Brown, supra, at 879:

The risk of unfair prejudice to defendant by confusing the jury with inflammatory or dispositive allegations, therefore, decreases. Consequently, in homicide case, extrajudicial declarations of revulsion have been found relevant, admissible evidence as immediately antecedent circumstances explanatory of the killing and tending to connect the accused with it. (Citations omitted)

|g3In the present case, the only statements of the victim elicited at trial were that the victim did not want to be around the defendant and that he left the bar to go home to avoid her. We find no merit to this assignment of error.

For the foregoing reasons, we affirm both the convictions and sentences of Jocelyn Dooley.

AFFIRMED.

      . Ultimately, both charges against Jocelyn were tried together. The defendant notes in her appellate brief that the state never formally consolidated the two cases for trial; however defendant does not raise the issue in an assignment of error so this will not be addressed by this court.

      . It should be noted that defendant's original post-conviction motion was untitled, but referred to before the trial court as one for a new trial. La. C. Cr. P. art. 821 provides that a motion for post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).

      . Defendant's motion to supplement the record on appeal with a newspaper article which was not introduced at trial was denied by this court. See State v. Clark, 2002-1463 (La.06/27/03), 851 So.2d 1055; State v. Langley, 1995-1489 (La.04/03/02), 813 So.2d 356.

      . The defendant sought a writ application on the same issue which was denied by this court for the following reasons:
      There is no showing that the court erred in denying the motion to recuse without conducting a hearing. State v. Rollins, 32,-686 (La.App.2d Cir. 12/22/99), 749 So.2d 890. The Court’s pronouncement at the preliminary examination hearing that the accused was guilty of some form of homicide is merely another form of saying there is probable cause to charge her with some form of homicide.


source: Caselaw Access Project

author: 11 GASKINS, J.

license: Public Domain

text:
    SUCCESSION OF Venoil Adams PARKER. Succession of John Polete Adams. Succession of Clio Adams.
    Nos. 38,920-CA, 38,921-CA, 38,922-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Nelson & Hammons, by Sydney B. Nelson, Shreveport, for Appellants John L. Hammons, Donnie Carroll Adams, Michael Keith Adams and Marsha Gail Adams.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   11 GASKINS, J.

This appeal concerns the consolidated successions of three siblings. In each succession, the trial court refused to place the living heirs into possession because they were not heirs at the time of the death of the decedent. Instead, the trial court instructed the heirs to submit amended judgments of possession recognizing the now-deceased heirs who were alive at the date of death of each decedent. For the reasons set forth below, we reverse and remand.

FACTS

On December 30, 2003, joint petitions for possession were filed in Winn Parish by three nephews and a niece to open the successions of Venoil Adams Parker, John Polete Adams, and Clio Adams. Venoil was a widow at the time of her death and had no children. Neither John nor Clio ever married or had any children. Venoil died in February 1992, John in November 1995, and Clio in May 2003. Another brother, Thomas A. Adams, died in March 1998, leaving three surviving children, Donnie Carroll Adams, Michael Keith Adams, and Marsha Gayle Adams. A sister, Etoil Adams Hammons, died in August 2003, leaving a surviving adopted child, John Hammons.

The petitions in the successions sought judgments of possession recognizing John Hammons, as Etoil’s sole heir, to be entitled to one-half of each estate, with his three cousins, as Thomas’ sole heirs, each being entitled to one-sixth of each of the three estates. (All of the heirs are in agreement with this disposition.) The petitions further asserted that all inheritance taxes and succession debts had been paid and that there was no |2need for administration of the successions. The detailed descriptive lists in the successions are noteworthy in that the three decedents were co-owners in a tract of land in Winn Parish.

In written opinions rendered in January 2004, the trial court refused to sign the proposed judgments of possession which would have placed the living heirs in possession because these persons were not heirs at the time of the decedents’ deaths. Instead, the court maintained that it would be appropriate to render judgments recognizing the heirs who were living at the time of each decedent’s death. In support, the court cited La. C.C.P. art. 3061, which provides in pertinent part:

The court shall render and sign immediately a judgment of possession if it finds from an examination of the petition for possession, and from the record of the proceeding, that the petitioners are entitled to the relief prayed for, and that all inheritance taxes due have been paid or deposited into the registry of the court, or that no such taxes are due and that an inheritance tax return, with the - required accompanying documents, have been filed with the collector of revenue. The judgment shall recognize the petitioners as the heirs, legatees, surviving spouse in community, or usufructuary, as the case may be, of the deceased, send the heirs or legatees into possession of the property owned by the deceased at the time of his death, and recognize the surviving spouse in community as entitled to the possession of an undivided one-half of the community property, and of the other undivided one-half to the extent that he has the usufruct thereof. [Emphasis added.]

The court stated that there was “no sound legal basis to deviate from the mandate” of this article. It instructed that amending and supplemental petitions for possession be submitted to recognize the heirs as of the date of death of each decedent.

The ■ living heirs filed applications for supervisory writs in each case. Finding that the proper review procedure was appeal, this court converted 13the writ applications to motions for appeal in February 2004. A motion to consolidate the appeals was granted in May 2004.

LAW AND DISCUSSION

The living heirs argue on appeal that they are entitled to be placed into possession of the estates without first putting the deceased heirs into possession. They maintain that it is unnecessary to open multiple successions to place into possession the deceased heirs who could have accepted the successions at the time of the decedents’ deaths but failed to do so. They assert that all inheritance taxes have been paid after full disclosure of their situation to the Louisiana Collector of'Revenue.

In Succession of Martin, 234 La. 566, 100 So.2d 509 (1958), the Louisiana Supreme Court was presented with a situation similar to the current one. A testator, Smith, named several residuary legatees; during the administration of the succession, one of the legatees, Martin, died without having accepted the legacy. Martin’s heirs inherited his interest1 in the Smith estate. The Louisiana tax collector sought to collect inheritance tax from Martin’s heirs in both the Smith and the Martin successions. The trial court refused to impose the inheritance tax twice, concluding that payment was required only in the Smith succession.

According to the Martin court, the legatee succeeded to the testator from the instant of his death and was seized of right under then La. C.C. art. 944 (now La. C.C. art. 937). However, since he never was sent into |4possession or even accepted it, he was not seized in fact. Upon the legatee’s death, his heirs were seized of right of the legacy from the testator. The Martin court held that the inheritance tax would become due when their right of seizin merged with their seizin in fact of the property bequeathed to the legatee by the testator.

As stated in Succession of Martin, supra, heirs have no right to take or possess any part of an estate which is still in custodia legis until the inheritance tax has been paid. The inheritance tax is not enforceable until the right of seizin in law is merged into seizin in fact of a particular property. Also, the tax is upon the right to take and receive the legacies, or is a tax upon the transmission of property from the dead to the living. It is levied upon the theory that the heir or legatee should have in point of fact received a benefit from the inheritance which falls to him, out of which benefit to him a portion is made to go to the state pursuant to the tax law.

In Hildebrand v. City of New Orleans, 549 So.2d 1218 (La.1989), cert. denied, 494 U.S. 1028, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990), the court noted that the state’s scheme of inheritance taxation was tied directly to the civilian concept of seizin. Citing former La. C.C. art. 944, it stated that the heir of the decedent succeeds of right to the succession of the decedent from the moment of death, so that the right of the heir may be transmitted to his own heirs, whether or not the decedent’s heir accepted the succession or even had knowledge of its benefits. Under Succession of Martin, supra, the court concluded that the state inheritance tax was not | ¡^enforceable until the decedent’s heir’s right of seizin in law was merged into seizin in fact of a particular property.

See also Peterson v. Herndon, 221 So.2d 615 (La.App. 2d Cir.1969); Rowe v. Inheritance Tax Collector, State of Louisiana, 1997-0598 (La.App. 1st Cir.4/8/98), 711 So.2d 792, unit denied, 98-1189 (La.6/19/98), 720 So.2d 1214.

In the instant case, the now-deceased heirs had seizin in law but never seizin in fact. They never received a benefit from the inheritance which fell to them. Consequently, payment of inheritance tax on their behalf is not required under Succession of Martin, supra. Pursuant to the Louisiana Civil Code, their rights were transmitted upon their deaths to their own successors. La. C.C. art. 937. The living heirs now accept those rights to succeed. To the extent that a successor accepts rights to succeed, he is considered as having succeeded to them at the moment of death of the decedent. La. C.C. art. 954.

The successors or petitioners in the case sub judice have complied with the provisions of La. C.C.P. art. 3061. From the record in each succession, it is apparent that the petitioners are entitled to the relief prayed for and that the inheritance taxes have been paid. We find that the appellants, as the apparent living heirs or successors who filed the instant petitions for possession, are appropriate parties entitled to recognition under La. C.C.P. art. 3061.

However, we note that the petitions and affidavits of death, domicile and heirship fail to allege whether the decedents died testate or intestate. |f,Nor do they specifically state the appellants’ standing as heirs, e.g., John Hammons as his mother’s successor, by virtue of her testament or as her intestate heir. If it deems it appropriate, the trial court may direct that the appellants supply this information through amended affidavits of death, domicile and heirship.

CONCLUSION

The judgments of the trial court in the three successions are reversed. Each of the three cases is remanded to the trial court, which is hereby directed to enter judgment in accordance with this opinion.

REVERSED AND REMANDED.

      . La. C.C. art. 937 provides:
      The rights of a successor are transmitted to his own successors at his death, whether or not he accepted the rights, and whether or not he knew that the rights accrued to him.


author: JjDREW, J.

text:
    Barbara RICE, and Erma Morace, Individually, as Heirs of Laura Loraine Miller, Plaintiffs-Appellees v. Douglas M. LILES, M.D., Defendant-Appellee.
    No. 38,840-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2004.
    Hudson, Potts & Bernstein, LLP, Gordon L. James, Jay P. Adams, Monroe, for Appellant, Louisiana Patients Compensation Fund.
    Oscar L. Shoenfelt, III, Baton Rouge, for Appellees, Barbara Rice and Erma Mo-race, Individually, as Heirs of Laura Loraine Miller.
    David E. Verlander, III, Monroe, for Appellee, Douglas M. Liles, M.D.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   JjDREW, J.

Quantum is the sole issue in this appeal by the Louisiana Patient’s Compensation Fund (LPCF) from the medical malpractice award of $481,132.22 plus interest and costs. Loraine Miller died at age 78 on August 23, 2002, from causes unrelated to this dispute. Her daughters, Irma Morace and Barbara Rice, sued the LPCF and Dr. Douglas M. Liles for Mrs. Miller’s damages sustained when Dr. Liles performed the wrong surgery on her hands. The judgment is amended and affirmed, as amended.

FACTUAL AND PROCEDURAL BACKGROUND

Since 1998, Dr. Liles treated Mrs. Miller for degenerative back problems. During 2000 her fingers began triggering (locking down against her palms). Mrs. Miller saw Dr. Liles, who, on November 20, 2000, performed as outpatient surgery a flexor tendon release on the palms of both hands. On November 22, Mrs. Liles returned to Dr. Liles, who found the triggering was not solved. He determined that her problem was caused by the extensor tendon on the back of the hand, rather than the flexor tendon on the inside. The doctor stated he advised Mrs. Miller she would need additional surgery on the back of her hands to resolve the problem. On December 1, she returned to Dr. Liles with her daughter Barbara Rice. Dr. Liles stated he told the ladies Mrs. Miller needed additional surgery; Mrs. Rice stated the doctor advised them of his error but did not inform them of the need for additional surgery.

On August 20, 2001, Mrs. Miller saw a doctor in Metairie, Dr. Stokes, who ordered a brace for her. By then, she had flexion contractures (scarring) causing her fingers to contract inward.

| ^Two months later, Mrs. Miller saw Dr. Robichaux, who diagnosed rheumatoid arthritis and extensor tendon dysfunction complicated by severe flexion contractures, which in his opinion were caused by Dr. Liles’s surgery. Dr. Robichaux performed surgery on her left hand on January 15, 2002, to repair the extensor tendons and to replace joints in her knuckles of her ring and little fingers. On February 25, 2002, Mrs. Miller saw Dr. Robichaux, who found she had an excellent recovery from her surgery. .He planned to surgically address the right hand after Mrs. Miller fully recovered, a period the doctor opined to be nine to twelve months. However, she died before that surgery could be done.

Following a bench trial, Judge Alvin Sharp awarded the following amounts:

Physical Pain and Suffering $ 75,000.00

Mental Pain and Suffering $ 75,000.00

Past Medical Expenses $ 26,132.22

Permanent Disfigurement $ 75,000.00

Disability $ 115,000.00

Loss of Enjoyment of Life $ 115,000.00

Total $481,132.22

plus interest from the date of judicial demand plus costs

Plaintiffs have since settled with Dr. Liles and the Louisiana Patient’s Compensation Fund (LPCF) has appealed complaining that quantum is excessive and asserting the total award should not exceed $75,000.00.

TESTIMONY

Irma Morace testified:

• The mother of four, Mrs. Miller lost her son in 1982 and lost a daughter, Beverly, during January 2002 when she was suffering from her hand problems.
|3* Her mother loved to make handcrafts and Christmas decorations for the yard; the decedent also enjoyed painting, gardening, cooking, and playing the piano, harmonica, and accordion. She made flower beds and planted flowers when she moved to West Monroe. Mrs. Miller won contests several times for Christmas decorations with which she decorated extensively inside and out.
• The family was very close, and Mrs. Miller traveled to visit relatives including the decedent’s siblings in Winns-boro and daughter in south Louisiana.
• Mrs. Miller took care of herself, was very private and did not like to ask others for assistance; she frequently had lunch prepared for Mrs. Morace when she came home for lunch to her mobile home, which was right beside her mother’s.
• As a result of an auto accident years earlier, Mrs. Miller had intermittent back problems for which she consulted doctors, received shots, took pain medication, and went to a pain management center.
• Problems with her hands locking began in 2000.
• Anxious before the initial surgery, Mrs. Miller was pale, drawn, crying and in pain after the surgery. Mrs. Miller was taken home that morning, helped into comfortable clothes and given lunch. The evening of surgery, Mrs. Miller was still in pain. While better the next day, she still cried with pain and had to be helped to use the bathroom.
• After her return visit to Dr. Liles, she reported the doctor had told her he made a mistake and cut the wrong sides of her hands. Mrs. Miller was upset and bewildered about the surgery error.
• In the weeks following surgery, both hands drew up and became claw-like with the fingers “melted down into her palms.”
• That Christmas was very difficult because she could not decorate, cook, or take care of her hair, all of which she had done prior to hand surgery. Prior to Christmas 2000, Mrs. Miller had Christmas for family and friends in her home but that year could not do so, which depressed her. During Christmas 2001, her family decorated her home for her while Mrs. Miller continued going back and forth to Baton Rouge for therapy, and she was very depressed.
14« In 2001, her hands were useless; she could not button clothes, tie shoes, roll her hair or apply makeup, which robbed her of independence.
• Following Dr. Robichaux’s surgery in Baton Rouge, Mrs. Miller returned to West Monroe in February 2002 and was pleased with her left hand repair.
• She became ill with pneumonia and was hospitalized, at which time she learned she had suffered a heart attack and subsequently had heart surgery.
• Her mother never returned to being the kind of fun, happy person she was prior to Dr. Liles’s surgery.
• Seventy-eight years old at the time of her death, Mrs. Miller’s prior health problems included surgical removal of 2/3 of her stomach due to ulcers, emphysema, high blood pressure, coronary artery disease in addition to her back problems. She also had osteoporosis and anxiety problems and took Darvocet for pain. Other prior surgeries included a hysterectomy along with cataract and gall bladder operations.

Lisa Morace, a granddaughter, testified:

• Her grandmother, whom she saw almost daily, taught her a great deal about gardening, which they had in common.
• Mrs. Miller was active and fun prior to the November 2000 surgery, after which she was in pain and required assistance for even going to the bathroom and other basic tasks.
• Mrs. Miller was depressed, scared, and could not take care of her dog, which was put to sleep. She could no longer drive after the initial hand surgery.
• After surgery she had to wear a brace, and her left hand never returned to the way it was prior to her hand problems.

Charlotte Johnson, a granddaughter, testified:

• Mrs. Miller was fun to be around, always tried to feed the family and taught her to paint.
• Prior to the November 2000 surgery, Mrs. Miller’s fingers closed and she could straighten them with her other hand or -against furniture. However, she was the “same old card, cutting up and cracking jokes.”
| r* Mrs. Miller was scared but hopeful before the surgery. The day of surgery and the next, Mrs. Miller cried with pain. ,-
• She drove her grandmother to the appointment with Dr. Liles a couple of days after surgery. Mrs. Miller was upset and depressed following the visit because the doctor had-made a mistake and her hands were not fixed.
• That result caused a great depression after which she was never the same. Instead of going everywhere and doing things, Mrs. Miller wanted to stay home and do nothing.
• After Dr. Robichaux’s surgery, she could not open and shut her hand in a normal fashion.

Barbara Rice, another daughter; testified:

• Her mother was a loving, involved, supportive parent. In addition to her activities described by other witnesses, Mrs.-Miller loved NASCAR and was a devoted Dale Earnhart fan.
• She accompanied her mother tó Dr. Liles on December 1 and observed the entire visit. She heard Dr. Liles explain that he had “goofed” and denies that he told Mrs. Miller she needed additional surgery after the first of the year. Had she known her mother needed more surgery, she would have found a doctor for the procedure.
• After her own diagnosis of breast cancer in January 2001, Mrs. Miller came down to be with her in Baton Rouge and.was there for every chemo and radiation treatment, which lasted from April until Thanksgiving 2001. Al- - though she could not physically render help, she offered emotional support. Other family members took Mrs. Miller back and forth to Baton Rouge.
• Mrs. Miller saw Dr. Robichaux in November 2001 and, on his instruction, went to 26 very painful therapy sessions to prepare her hands for surgery with Dr. Robichaux.
• Mrs. Miller’s hands had scars from Dr. Liles’s surgery.
• After Dr. Robichaux’s surgery, she could open-and close her hand, but not fully.
• At the end of January 2002, Mrs. Miller was not in pain from her left hand.

IfiDr. Liles testified that Mrs. Miller’s finger problems are very common for people in her age group and most are caused by flexor tendons which allow the fingers to bend toward the palm. Dr. Liles admitted incorrectly diagnosing Mrs. Miller’s problem and performing surgery on her palm side instead of the back of her hand. Dr. Liles stated the surgery only took minutes and the wounds were dressed with Band-Aids and gauze. She went home that day with pain medication for which she never requested a refill. She again saw Dr. Liles twice, two and ten days following the surgery and never returned thereafter.

DISCUSSION

On appeal, the LPCF does not make an issue of the sum awarded for medical expenses but asserts that the award for general damages is excessive and should be reduced to no more than $75,000.00. In Cole v. Pool, 34,329 (La.App. 2d Cir.12/6/00), 774 So.2d 1081, 1083, this court noted that:

General damages involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment or other losses of lifestyle which cannot be measured exactly in monetary terms. In the determination of general damages, the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. La. C.C. art. 2324.1. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. The primary considerations in the assessment of damages are the severity and duration of the injured party’s pain and suffering.
Only after an abuse of discretion is disclosed by an articulated analysis of the facts is an examination of prior awards in similar cases proper; an abusively low award is | .¡-raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence, most favorable to the plaintiff, which reasonably could have been made by the trier of fact. (Citations omitted.) See also discussion in Taylor v. Armstrong, 36,514 (La.App.2d Cir.10/23/2002), 830 So.2d 454.

Examining the evidence in the light most favorable to Mrs. Miller’s family, we find that the $455,000.00 ($481,132.22 less $26,132.22 for past medical expenses) general damages award is not supported by this record and is unreasonably excessive under the facts of this case.

Concerning Mrs. Miller’s treatment, Dr. Liles admitted he performed the wrong surgery and acknowledged that the worsened condition of her hands resulted from that incorrect procedure. The mistaken, relatively minor surgery performed by Dr. Liles on both hands resulted in a great deal of pain and discomfort to a previously very active person who was rendered unable to provide basic care for herself while her hands healed. Soon thereafter, due to the error by Dr. Liles, Mrs. Miller’s hands began locking down with contractures, the left hand being more severely impaired. Dr. Liles also acknowledged that Mrs. Miller had inactive rheumatoid arthritis prior to his surgery and admitted that surgical trauma could have activated the disease, as could have the emotional trauma of her family problems.

The trial court specifically found that although Dr. Liles admitted his error to Mrs. Miller, he did not sufficiently inform her of the need for additional surgery to address and correct the condition of her hands. Contrary to Dr. Liles’s testimony that he informed Mrs. Miller on | «December 1 that she needed additional surgery after the first of the year to fix his mistake, Barbara Rice attended that visit and specifically denies her mother was so informed.

Her family all testified Mrs. Miller was upset, bewildered and depressed that Dr. Liles’s operation had not repaired her hands. Over time Mrs. Miller’s hand became worse due to scarring resulting from Dr. Liles’s surgery and complications from rheumatoid arthritis. Her hands became claw-like, which severely limited her ability to function.

An expert in orthopedic hand surgery, Dr..Robichaux stated a contracture is scarring that limits movement. Mrs. Miller had significant scarring after Dr. Liles’s surgery. Dr. Robichaux stated that Mrs. Miller developed contractures as a result of the surgery performed by Dr. Liles. The contractures were so severe that she could not straighten her fingers manually as she had been able to do prior to Dr. Liles’s surgery. Had she not been subjected to that erroneous procedure, she would not have developed the scarring and immobility of her left hand.

After she saw Dr. Robichaux in Baton Rouge and in order for her to undergo the corrective surgery on her left hand, she had to endure 26 very painful physical therapy sessions in order to loosen the contractures (scarring) immobilizing her fingers. Dr. Robichaux placed her in dynamic splints which pulled her fingers straight with pulleys and rubber bands.

During the course of Dr. Robichaux’s treatment, he referred her to a rheumatol-ogist, who confirmed Dr. Robichaux’s diagnosis of rheumatoid | aarthritis in her hands which caused her fingers to have ulnar drift (bend toward the little finger) which required a nighttime splint.

Dr. Robichaux opined that had Mrs. Miller received the correct surgery from Dr. Liles, she would have avoided the problem of her fingers triggering or closing into her palms. The severe contractures on her left hand resulted in Mrs. Miller having to undergo much more extensive surgery by Dr. Robichaux, who replaced the knuckle joints in her little and ring fingers of her left hand. The doctor characterized his surgical procedure as a “huge operation.” Even after she returned to West Monroe from Baton Rouge, Mrs. Miller had to spend 15 minutes four or five times a day exercising her hand and she also saw a physical therapist.

Dr. Robichaux pointed out that her rheumatoid arthritis was not caused by Dr. Liles’s error. Moreover, the contractures were not, in themselves, painful. When he last saw Mrs. Miller in February after her January 2002 surgery, she had healed well, was making a remarkable recovery and regaining the ability to fully extend and close the fingers of her left hand. Dr. Robichaux acknowledged that Mrs. Miller endured quite an ordeal due to the incorrect surgical procedure.

It is undisputed that Mrs. Miller began her hand surgery debacle with myriad serious health problems. She had chronic back pain for which she required medication (Darvocet), stomach surgery for ulcers, emphysema, high blood pressure, coronary artery disease, osteoporosis and anxiety problems. Other prior surgeries included a hysterectomy along with cataract and gall bladder operations. The testimony of her daughters and | ingranddaughters showed that, in spite of those daunting problems, Mrs. Miller led an active and uncomplaining life prior to Dr. Liles’s surgery in November 2000. The results of Dr. Liles’s error caused her severe depression and limited her ability to undertake activities. According to her family, she never recovered from that decline which was complicated by family troubles and her health.

Both the plaintiffs and the LPCF refer to Wakefield v. Reliance National Indemnity Co., 02-1173 (La.App. 5th Cir.4/29/03), 845 So.2d 1238, to support their respective arguments that the general damages award should be affirmed or reduced. Similar to Mrs. Miller, Mrs. Wakefield was affected “by a plethora of pre-existing medical conditions” which required pain medication. At age 75, Mrs. Wakefield was in an auto accident in which she suffered a serious compound wrist fracture which required four surgeries and six weeks in an external fixator followed by a cast. Her wrist was permanently misshapen. Due to having very soft bones, Mrs. Wakefield had a non-union of the bone, some residual pain, and loss of function. She had difficulty performing basic tasks such as buttoning clothing and cleaning her home. Her occupational therapist testified she had met therapy goals and could perform tasks of daily living. The court found the general damage award of $150,000.00 was neither abusively low nor high and declined to increase the award to $300,000.00 to $400,000.00.

The LPCF correctly observed in its reply brief that cases relied upon by the Miller family as support for the trial court’s excessive award of general damages were distinguished by the Wakefield court because those In plaintiffs suffered serious injuries to other body parts or more serious conditions. See Delaune v. Medical Center of Baton Rouge, 95-1190 (La.App. 1st Cir.10/25/96), 683 So.2d 859, writs denied, 97-0218, 98-0243 (La.3/21/97), 691 So.2d 84; Matthews v. Ferrer, 95-0266 (La.App. 4th Cir.11/30/95), 665 So.2d 1211; Detraz v. Hartford Accident & Indemnity Co., 94-708 (La.App. 3d Cir.12/17/94), 647 So.2d 576.

In essence, the LPCF appears to argue that because of Mrs. Miller’s wide assortment of serious health problems, the damage caused by Dr. Liles’s actions are somehow less significant. This court views Mrs. Miller’s circumstances the opposite way. Because this fun-loving, active lady had so many other ailments, the result of the incorrect surgery was even more devastating.

Mrs. Miller had scarring on the palms of her hands from Dr. Liles’s erroneous surgical procedures. Although both she and Dr. Robichaux were pleased with the recovery of her left hand following the 2002 surgery, her family stated she never entirely regained the function in her left hand.

Interpreting the evidence most favorably to Mrs. Miller, we conclude that the general damages award was abusively excessive. Therefore, we amend the judgment by reducing the general damages award to $150,000.00, the most generous award reasonable under the facts. See Wakefield, supra. In addition, the LPCF must pay $26,132.22 for past medical expenses, plus costs and legal interest from the date of judicial demand. The costs of this appeal are $143.50 and trial court costs are $1,895.04.

| ^DECREE

The judgment against the Louisiana Patient’s Compensation Fund is amended to reduce the general damages award to $150,000.00 to be paid along with $26,132.22 for past medical expenses, plus trial and appellate court costs of $2,038.54 and legal interest from the date of judicial demand.

AMENDED, AND AS AMENDED, AFFIRMED.


author: h CARAWAY, J.

text:
    Jacquelyn KOEHN, Plaintiff-Appellant v. Clifford RHODES, Jr., et al, Defendants-Appellees.
    No. 38,941-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2004.

      Alan Stegall, for Jacquelyn Koehn.
    Lynn E. Estes, Jr., Shreveport, for Clifford Rhodes.
    Bodenheimer, Jones, Szwak & Winchell by Mary E. Winchell, Shreveport, for Clifford Rhodes and U.S. Agencies Casualty Insurance Co.
    Hubley, Marcotte, Rhodes & Joffrion by Lydia M. Rhodes, Shreveport, for Economy Fire & Casualty Insurance Company and Jennifer Graves.
    Cook, Yancey, King & Galloway by Lee H. Ayres, Scott L. Zimmer, Douglas Lee Harville, Shreveport, for Government Employees Insurance Company.
    Tracy L. Oakley, for Safeway Insurance Company of Louisiana.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   h CARAWAY, J.

The plaintiff in this appeal seeks review of the trial court’s awards for damages and costs arising from an automobile accident. Finding no abuse of the trial court’s discretion in the rulings for general damages and costs, we affirm those awards. However, the trial court’s unexplained rejection of certain medical expenses incurred during the interval for plaintiffs recovery represents error, requiring our amendment of the award for special damáges.

Facts

The suit arises from a vehicular collision on May 27, 2001 between a car and a truck at a heavily traveled intersection in Shreveport, in which occupants of both vehicles sustained injuries. The appellant, Jacquelyn Koehn, was a guest passenger in a 1991 Nissan 300ZX. The owner of the Nissan, James Ladner, sat in the front passenger seat and his girlfriend, Jennifer Graves, was driving. At trial, Ladner, Graves and Koehn all testified that the traffic signal on Mansfield Road was green as they approached the intersection. The accident occurred at approximately 4:30 a.m.

Defendant, Clifford Rhodes, Jr., and his passenger occupied a Chevy pick-up truck owned by Rhodes’ brother, Christopher Wright. Rhodes testified that he was stopped at the traffic signal at Mansfield Road and Jewella Avenue. After the light turned green, he waited for oncoming traffic before attempting a left turn. The traffic signal cycled from solid green to a protected green arrow. The vehicles collided when Rhodes was pin the middle of the intersection, and the truck rolled into a ditch. Rhodes testified that he never saw the red Nissan coming.

As a result of the accident, the Nissan driver’s side air bag inflated to protect Graves. She remained in the vehicle until emergency medical personnel helped her out and thereafter, she was transported to the hospital. Koehn remained in the back seat until Graves was extricated. After getting out of the car, she walked to the convenience store nearby to call her boyfriend. Rhodes was removed from the truck by emergency medical personnel and also transported to the hospital for treatment of his injuries.

Later on that day, Koehn went to the emergency room because of pain and discomfort in her right hip and right wrist. She returned to the emergency room a second time five days later. Thereafter, she was treated by a chiropractor, Dr. Rizzo, between June 15 and August 15. She made a third emergency room visit on August 10. Although the chiropractic treatment helped with some symptoms, she was still experiencing right hip and leg pain.

In late August, the chiropractor referred her to Dr. Etheredge, an orthopedic surgeon, for these problems. Koehn testified that she had no health insurance coverage, but after the accident when she had to change jobs, her new employer offered health insurance benefits so she could obtain medical treatment with Dr. Ether-edge. He examined her and ordered an MRI, which revealed pre-existing degenerative changes and a bulging disc at L-5/S-1. Koehn saw Dr. Etheredge five times between August and February, 2002, when he retired. He treated her conservatively, prescribing ^physical therapy, exercises and medication. After Dr. Etheredge retired from practice, Koehn consulted Dr. Foss, her primary care physician, when her symptoms flared up again. Dr. Foss referred her to another orthopedic surgeon, Dr. Mays, and a spine specialist, Dr. Goodman, for additional medical treatment. Koehn calculated her total expenses for medical treatment as $11,744.44.

At trial, the parties stipulated that the truck driven by Rhodes was primarily insured by USAgencies and also covered by an excess insurance policy issued by Safeway. They also stipulated that the Ladner vehicle was insured by Economy Fire & Casualty and that Ms. Koehn’s U/M insurer was Geico. The policy limits were as follows:

US Agencies $10,000 per person/$20,000 per occurrence

Safeway $10,000 per person/$20,000 per occurrence

Economy $25,000 per person/$50,000 per occurrence

Geico $10,000 U/M

After a bench trial, the trial court issued written reasons for judgment on the liability issue, finding that both drivers were at fault for the accident. The trial court assigned Graves 40% of the fault and Rhodes 60% of the fault. Rhodes settled with Economy Fire & Casualty, leaving the trial court’s assessment of quantum for Koehn’s damages as the only remaining issue. In reasons for judgment, the court noted that because Koehn discontinued physical therapy against Dr. Etheredge’s advice and thus failed to mitigate her damages, her recovery of medical expenses was limited to the particular expenses related to specific therapies.

The trial court’s judgment reduced Koehn’s special damages awards to $5,556.58 for medical expenses and $166.23 for lost wages, and awarded [4her $9,500 general damages for injuries related to the accident. Accordingly, on September 16, 2003, Rhodes and USAgencies were cast in judgment for $9,133.69, their pro rata share of Koehn’s damages, plus judicial interest. Graves and Economy Fire & Casualty were cast in judgment for $6,089.12, their pro rata share of Koehn’s damages, plus judicial interest. Koehn’s claims against Rhodes’ excess insurer and her U/M carrier were dismissed at her cost.

After trial, Koehn moved the court to tax expenses as costs incurred in connection with the suit. Economy Fire & Casualty’s counsel opposed the motion, arguing that because Koehn did not prevail against Safeway, the excess insurer, it should not bear the expenses of Koehn’s prosecution of suit against Safeway, such as the cost of filing a supplemental and amending petition ($330.00) and subpoena costs, and that those costs should be taxed to Koehn instead. Economy Fire & Casualty also argued that Dr. Etheredge’s expert witness fee of $750.00 was “excessive” and that the trial court should reduce it. After a contradictory hearing, the trial court excluded some of the costs associated with Koehn’s claims against Safeway and Geico. The judgment taxing costs in accordance with the trial court’s instructions from the bench was entered and signed on October 8, 2003.

Koehn has appealed both judgments.

Discussion

In two assignments of error, Koehn contests, (i) the ruling of the trial court discounting the extent of her injury after September 11, 2001, for her failure to continue physical therapy, and (ii) the ruling awarding $9,500 in [.^general damages for her injury. The trial court made the following determination:

Ms. Koehn saw Dr. Lee Etheredge beginning on August 22, 2001. From August 24 through September 11, 2001, Ms. Koehn participated in physical therapy; however, on September 11 she discontinued therapeutic treatment against the advice of Dr. Etheredge. The Court finds the therapy discontinuation to be troublesome with the inferences being (a) her injuries and symptoms from the June 1, 2001 accident had, subsided; and/or (b) after September 11, 2001,- she declined to mitigate her damages. In addition, she testified that during this period of time, she enjoyed activities, including dancing, and painted a room at her house.
Furthermore, it is reasonable to conclude based on the deposition testimony of Dr. Etheredge that had Ms. Koehn managed her condition properly, her symptoms from this May 27, 2001 accident would have subsided in six months.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless such finding is clearly wrong. Brown v. Brookshire’s Grocery Co., 38,216 (La.App.2d Cir.3/12/04), 868 So.2d 297; Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In fact, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, supra. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one in light of the evidence in the record. Theriot v. Lasseigne, 640 So.2d 1305, (La.1994); Stobart, supra.

¡General damages involve mental or physical pain and suffering, inconvem ience, loss of- intellectual gratification or physical enjoyment, or other losses of life or-, lifestyle which cannot be definitively measured in 1 ¿monetary terms. Simmons v. King, 36,537 (La.App.2d Cir.12/11/02), 833 So.2d 1148; Fergins v. Caddo Parish School Board, 31,729 (La.App.2d Cir.3/31/99), 736 So.2d 943. There is no mechanical rule for determining general damages; the facts and circumstances of each case control. Id.

When damages are insusceptible of precise measurement, much discretion is left to the trial court. La. C.C. Art.1999. This discretion is great, even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Only if an award is first found to be inadequate or excessive on the facts of the particular case may the appellate court refer to the awards in similar cases. Greene v. Fox Crossing, Inc., 32,774 (La.App.2d Cir.3/1/00), 754 So.2d 339, writ denied, 00-944 (La.5/26/00), 762 So.2d 1108.

Dr. Etheredge described Koehn’s condition as tightness in her neck with some restricted range of motion. She also had pain in her lower lumbar area and in her right hip. While her MRI revealed a degenerative disc bulge at L-5/S-1, there was no evidence that the bulge was causing any pressure on the nerve roots. There was also a pre-existing spondylolis-thesis at L-5/S-1 which was aggravated by the accident. Dr. Etheredge stated that with the physical therapy he prescribed, Koehn’s condition could be expected to resolve in six months, but that she would always have a tendency to be able to over-strain her back due to the degenerative disc problem.

17Koehn therefore asserts manifest error in the trial court’s view that her injury subsided in three and one-half months, by September 11. ■ She argues that while she discontinued physical therapy sessions because they interfered with her employment, she continued the recommended physical exercises at home.

We find Koehn’s arguments on these points too narrow in view of the trial court’s broad task of assessing the extent and duration of the general damages for this soft tissue injury. The trial court’s emphasis on Koehn’s cessation of physical therapy demonstrates credibility concerns regarding the rate of abatement of Koehn’s pain and suffering. This is always a difficult measure for the court in assessing such injuries. Credibility of the injured plaintiff weighs greatly. From our review of the record, the trial court’s view of the extent of Koehn’s pain and suffering was not unreasonable and the $9,500 award for general damages for the six-month injury was not an abuse of discretion.

Koehn’s next assignment of error asserts that the trial court erred in failing to award as special damages all medical expenses she incurred as a result of the accident. Our review of the trial court’s award and the invoices for those expenses for the months through the end of Dr. Etheredge’s services reveals the following:

Trial Court Allowance: IgActual “Medical Expenses:

$2,979.58 WK-S Emergency Room (first visit-5/27/01) $ 2,979.58

$ 0.00 WK-S Emergency Room (second visit-6/1/01) $ 556.55

$ 0.00 Eugene L. Rizzo, D.C. (6/15/01-8/15/01) $ 1,795.00

$ 0.00 WK-S Emergency Room (third visit-8/10/01) $ 536.79

$ 683.00 Physical Medicine & Rehab. (8/24/01-9/11/01) $ 683.00

$ 694.00 J. Lee Etheredge, M.D. (5 visits 8/22/01-2/28/02) $ 1,024.00

$1,200.00 J. Lee Etheredge, M.D. (MRI 9/12/01) $ 1,200.00

$ 0.00 Christus Schumpert (bone sean-2/8/02) $ 1,153.41

Diagnostic Imaging Associates: Dr. Leopard (read MRI) $ 317.00 O o

Dr. Peavy (read bone scan) $ 182.00 O o

$ 0.00 Drug Emporium (5/27/01-12/15/01) $ 91.60

$5,556.58 Total: $10,518.93

Special damages are those which either must be specially pled or have a ready market value, that is, the amount of damages supposedly can be determined with relative certainty, such as the plaintiffs medical expenses incurred as a result of the tort. Neloms v. Empire Fire & Marine Ins. Co., 37,786 (La.App.2d Cir.10/16/03), 859 So.2d 225; Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 01-2582 (La.12/14/01), 804 So.2d 647 (citing Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70). The discretion afforded the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages. Neloms, supra, Moody, supra, Eddy v. Litton, 586 So.2d 670 (La.App. 2d Cir.1991). Some special 1 ¡[damages, such as medical and related expenses, are easily measured. Eddy v. Litton, supra. A tort-feasor is required to pay for the cost of overtreatment or unnecessary medical treatment unless the overtreatment was incurred in bad faith. Vines v. Wood, 34,555 (La.App.2d Cir.4/4/01), 785 So.2d 126; Jones v. Super One Foods/Brookshires Grocery Co., 33,683 (La.App.2d Cir.8/23/00), 774 So.2d 200; cf. Chambers v. Graybiel, 639 So.2d 361 (La.App. 2d Cir.1994), writ denied, 644 So.2d 377 (La.1994). In Jones, supra, this court faced a situation regarding the special damage award which is opposite from the present, yet the allowance for recovery is telling. The trial court awarded the plaintiff general damages for a “six-eight week period of aggravation” of previous injuries but extended plaintiffs recovery for medical expenses to those incurred eight months following the accident. In affirming the award for special damages, this court acknowledged that such expenses in the extended eight-month period may have been for overtreatment, but were not shown to have been made in bad faith.

In the trial court’s written reasons in this ease, there was no specific discussion regarding why the above listed medical expenses were excluded. As quoted above, the trial court recognized the September 11 date when Koehn ceased physical therapy, yet, at the same time, acknowledged Dr. Etheredge’s opinion that Koehn’s symptoms could continue for up to six months, which was approximately the time when Dr. Etheredge ceased his treatment. Koehn, who was initially without medical insurance, utilized the emergency room three times and the services of a chiropractor before she ever saw Dr. Eth-eredge, and well before September 11. Nevertheless,_Jiiwithout explanation, the trial court did not give compensation for those expenses and others during the period recognized by the court for Koehn’s pain and suffering.

By the clear implication of Civil Code Article 1999, these omitted medical expenses are susceptible of precise measurement and were incurred during the recognized period of injury. Thus, the “much discretion” afforded the trial court under Article 1999 for general damages is not appropriate and the standard of review is much closer to manifest error. All of the $10,518.93 in expenses listed above occurred from the time of the accident through the time of Dr. Etheredge’s treatment. Since Dr. Etheredge’s treatment appears appropriate and was relied upon by the trial court, we find the expenses through the time of his treatment reasonable and not indicative of overtreatment. Accordingly, we amend the trial court’s award for the special damages listed above, making the total award $10,518.93.

Finally, Koehn challenges the trial court’s reluctance to tax to the defendants cast in judgment a portion of court costs associated with her claim. Specifically, the trial court assessed the cost of filing plaintiffs amended petition naming Safeway, Rhodes’ excess insurer, and Geico, the U/M carrier, as additional defendants, against Koehn instead of the defendantdn-surers who were cast in judgment.

Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. La. C.C.P. art.1920. The court has great discretion in fixing costs. City of Shreveport v. Chanse Gas Corp., 34,958, 34,959 (La.App.2d Cir.8/22/01), 794 So.2d 962, writs denied, 01-2657, 01-2660 (La.1/4/02), 805 So.2d 209. While it is the general rule that the party cast in judgment should be taxed with costs, the trial court may assess costs in any equitable manner. Spillers v. ABH Trucking Co., Inc., 30,332 (La.App.2d Cir.4/13/98), 713 So.2d 505, writs denied, 98-1313 (La.6/26/98), 719 So.2d 1063, 98-1327 (La.6/26/98), 719 So.2d 1287. A prevailing party may be taxed with costs if that party in some way incurred additional costs pointlessly or engaged in other conduct which would equitably justify the assessment of costs to the prevailing party. Id.

On the basis of this law, we cannot say that the trial court’s assessment of a portion of the costs against the prevailing party was an abuse of discretion. Koehn’s claim against Safeway and Geico did not prevail and the court costs directly associated with those claims may be assessed to Koehn. This assignment of error is without merit.

Conclusion

For the foregoing reasons, the trial court’s judgment taxing costs is affirmed. The judgment of the trial court on quantum is affirmed insofar as the award for general damages, but the judgment for medical special damages is amended to award $10,518.93, including liability upon defendant Safeway Insurance Company of Louisiana, the excess liability insurer of defendant Clifford Rhodes, for any portion of the increased award in excess of the USAgencies policy. Costs of this appeal are assessed to | ^Clifford Rhodes and Jennifer Graves and their respective insurers in proportion to their fault as assessed by the trial court.

AMENDED, AND AS AMENDED, AFFIRMED.