author: h SAUNDERS, Judge. JjTHIBODEAUX, J.,

text:
    STATE of Louisiana v. Charles E. MORRIS, Glenivan Cottle, and Donell Badgett, Jr.
    No. 2003-0269.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 10, 2003.
    Writ Denied Oct. 15, 2003.

      Hon. J. Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff/Applicant State of Louisiana.
    Harold Dewey Register Jr., Lafayette, LA, for Defendant/Respondent Glenivan Cottle.
    Thomas M. Calogero, Regan Manasseh & Boshea, New Orleans, LA, for Defendant/Respondent Donell Badgett, Jr.
    Anthony Jude Sáleme, Jr., Asst. District Attorney, St. Martin Parish Courthouse, St. Martinville, LA, for PlaintiffiApplicant State of Louisiana.
    Lynden James Burton, Pecantte-Burton & Burton, Jeanerette, LA, for Defendant/Respondent Charles E. Morris.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   h SAUNDERS, Judge.

The Defendants, Charles E. Morris, Gle-nivan G. Cottle, and Donell L. Badgett, Jr., are charged with possession of cocaine in violation of La.R.S. 40:967(F)(l)(c). Morris was also charged with following too closely in violation of La.R.S. 32:81(A). Badgett was also charged with improper lane usage, in violation of La.R.S. 32:79. It appears from the record before this court that the two traffic charges are charged in the same lower court docket number as the drug charges. The Defendants filed motions to suppress that were granted by the trial court after a hearing on May 9, 2002. It is from this ruling the State timely filed this pretrial writ application. No information on trial date was provided.

On April 7, 2003, this court granted this writ application to the May 8, 2003 docket for consideration on the merits.

FACTS:

At the hearing on the motions, Louisiana State Police Trooper Lanny Bergeron testified that he stopped Defendant Morris’s vehicle on October 9, 2000, at approximately 12:47 am. Trooper Bergeron stated that he was parked on the shoulder of Interstate 10, near mile post 110 in St. Martin Parish, when he saw a blue Crown Victoria following less than a car length behind a green Ford Taurus. He testified that he intended to stop the blue Crown Victoria for the traffic offense, but did not after observing fellow State Trooper John Trahan traveling directly behind the Crown Victoria and requesting a registration check on the vehicle. Trooper Ber-geron soon discovered that, while Trooper Trahan had called for a registration check on the Crown Victoria, he had actually stopped the red Suburban that Trooper Bergeron had noticed earlier traveling some distance behind the Crown Victoria.

Trooper Trahan testified that, on October 9, 2000, at 12:47 am, he observed a 1 aCrown Victoria following too closely behind a Ford Taurus. While approaching the Crown Victoria with intent to stop the vehicle for the observed traffic offense, Trooper Trahan observed a red Suburban committing the traffic offense of improper lane usage. While calling for the registration check on the Crown Victoria the Suburban continued to commit improper lane usage traffic offenses. Trooper Tra-han indicated that the traffic offenses committed by the Suburban appeared to be deliberate. In light of the continuing, and apparently deliberate, traffic offenses committed by the Suburban, Trooper Tra-han testified that he chose to stop the Suburban because it appeared to pose more of a danger to other motorists than the Crown Victoria.

After seeing Trooper Trahan behind the Crown Victoria, Trooper Bergeron turned around and headed- in the opposite direction. Shortly thereafter he heard over the radio that his partner had run a registration check on the Crown Victoria and then stopped a Suburban with a Pennsylvania license tag. He testified that he knew at that time that Trooper Trahan had not stopped the Crown Victoria. Trooper Bergeron stated that he also heard on his radio that the Crown Victoria registration check revealed the owner of that vehicle was Glenivan Cottle. Then, Trooper Trahan stated on the radio that Cottle was in the Suburban that he had stopped.

Trooper Bergeron stated that he is familiar with the narcotics traffickers’ practice of having a “tail” vehicle traveling along with the vehicle carrying the narcotics, referred to as the “load” vehicle, for the purpose of drawing attention of law enforcement away from the “load” vehicle. This is done by having the “tail” vehicle commit an infraction with the intention of having the law enforcement agent stop the “tail” vehicle" so that the narcotics in the “load” vehiclé may proceed towards hits destination undisturbed. He also noted that, typically, when vehicles are traveling together, the other vehicle will also pull over if one is stopped by police.

When Trooper Bergeron came to realize that Trooper Trahan had not stopped the Crown Victoria, and received word that the owner of the Crown Victoria was a passenger in the Suburban stopped by Trooper Trahan and that had appeared to be traveling with the Crown Victoria, he took action to locate the Crown Victoria. He eventually located and stopped the blue Crown Victoria at mile post 138 in Iber-ville Parish. The driver of the Crown Victoria was identified as Defendant Morris. Trooper Bergeron asked him the whereabouts of the owner of the vehicle. Defendant Morris told him that he was a rapper and he was traveling from Houston to New Orleans to visit a friend and drop off the car. He said the owner of the car was in New Orleans. Trooper Bergeron stated that he ran a criminal history check and discovered that Defendant Morris had an arrest history, and that the owner of the vehicle, Defendant Cottle, had an open case with DEA. Trooper Bergeron asked for written consent to search the vehicle, and Defendant Morris signed the form.

While searching, the officer noticed the fuel tank had recently been removed and also thought he found a false compartment in the bottom of the trunk. Defendant Morris was handcuffed and Mimndized. Trooper Bergeron testified that the Defendant was not free to leave at this point even though no illegal drugs had been located. After the canine drug dog alerted, officers searched the compartment and found packages of cocaine.

The driver of the Suburban was Defendant Badgett. Trooper Trahan testified that the Defendant appeared extremely nervous and told him that he was weaving on the road because he was tired. The driver told the trooper that he only knew his ppassenger’s first name and had only known him for a week. The passenger gave his name and the trooper recognized it as the owner of the Crown Victoria. Trooper Trahan contacted Troopers Ber-geron and Bija, and Iberville Parish Sheriffs Office to be on the lookout for the Crown Victoria. After questioning the driver and passenger of the Suburban, Trooper Trahan ran a criminal history check on both men and found they had prior drug arrests. He then prepared a written consent to search form which the driver, Defendant Badgett, signed. A search of the vehicle revealed nothing illegal.

Trooper Bergeron advised Trooper Tra-han that he stopped the Crown Victoria and that its driver, Defendant Morris, was the owner of the Suburban. Bergeron further advised Trahan that he could arrest Badgett and Cottle because a compartment containing contraband was located in the Crown Victoria. Trooper Trahan testified he arrested Badgett and Cottle because “they were traveling together; the vehicles was not registered to them. The owner of the Crown Vic was the passenger in the vehicle, and at 0440 something in the morning, it is not likely that two cars will be traveling together and the people do not know each other.” We note that Trooper Trahan incorrectly referred to the time of the stop of the Suburban as 4:40 am, when he earlier testified the stop was at 12:47, and this time was corroborated by Trooper Bergeron’s testimony.

ASSIGNMENT OF ERROR:

The State contends the trial court erred in granting Defendants’ motions to suppress. It argues that the trooper’s stop of the Crown Victoria, driven by Defendant Morris, was based on a traffic violation and reasonable suspicion of criminal activity.

| ¿TRAFFIC VIOLATION

We first address whether the traffic violation was sufficient, in and of itself, to justify the stop of the Crown Victoria.

The State argues that both Trooper Tra-han and Trooper Bergeron witnessed the driver of the Crown Victoria committing a traffic violation, following too closely, therefore the subsequent stop of the vehicle was legal. The State cites State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053. In Waters, the Louisiana Supreme Court found that the officer who stopped the Defendant’s vehicle had a reasonable basis for the stop even though the vehicle only touched the right-hand fog line of the roadway, but did not cross the line. The officer had probable cause to believe that a traffic violation had occurred. While discussing the reasonableness of the stop, the court stated:

As a general matter, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (citations omitted). The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. Whren, 517 U.S. at 818, 116 S.Ct. at 1774 (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”). Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants. See, e.g., State v. Richards, 97-1182, p. 2 (La.App. 5th Cir.4/15/98), 713 So.2d 514, 516 (failure to come to a complete stop at a stop sign); State v. Dixon, 30,495, p. 1 (La.App.2d Cir.2/25/98), 708 So.2d 506, 507 (traveling less than a car length behind lead vehicle); State v. Duran, 96-0602, p. 1 (La.App. 5th Cir.3/25/97), 693 So.2d 2, 3 (failure to signal before changing lanes).

Id. at 1056.

In Whren v. U.S., 517 U.S. 806, 808, 116 S.Ct. 1769, 1771-72, 135 L.Ed.2d 89 (1996), the United States Court stated the issue before it as follows:

|Jn this case we decide whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws.

Whren conceded that he committed traffic violations. However, he contended that the traffic stop was a pretext for a drug investigation. Whren argued that, because there are so many traffic laws, officers can stop anyone based on a technical violation, and may choose to make profile stops. The Court stated the defendant’s position as follows: “To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given.” Id. at 810; 1773. The Court rejected this argument, citing its prior cases that “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” Id. at 813; 1774.

The Louisiana Supreme Court cited the Whren case in State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90. In Lopez, the court stated, “[wjithout regard to the trooper’s subjective intent, respondent’s speeding above the posted limit gave the officer an objective probable cause basis to pull over the vehicle for a traffic violation.” Id. at 92. The court quoted from Whren stating, “[sjubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id.

Similarly, in State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881, the Louisiana Supreme Court stated:

That Officer Brashier was conducting a drug interdiction patrol when he pulled over the Camry had no bearing on the legality of the initial stop for improper lane use. Whren, 517 U.S. at [806], 116 S.Ct. |7at 1774 (“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723-1724, 56 L.Ed.2d 168 (1978)).

In the present matter the trial judge outlined the facts of the case in his written reasons for granting the Defendants’ motions to suppress. He found that the traffic stop of the Suburban and the detention of Defendants Badgett and Cottle was legal, while the stop of the Crown Victoria was illegal. The trial judge stated:

This Court finds that subsequent actions of Trooper Bergeron and Trooper Trahan resulted in conduct that was unreasonable and not subject to the probable cause. Trooper Bergeron testified that he observed the Crown Victoria commit a traffic violation in his presence, in St. Martin Parish. He testified that he did not stop the vehicle because he assumed that Trooper Trahan had observed the same, and would stop the vehicle. Testimony revealed that Trooper Trahan did not stop the Crown Victoria because he felt that the offense committed by the Suburban was more of a threat to public safety. Based upon the facts presented to the Court, the Crown Victoria was only stopped and located in Iberville Parish based upon the speculative conduct of Trooper Bergeron. Trooper Bergeron stated that, “he had heard Trahan come back over the radio stating that he had Mr. Cottle inside the Suburban that he had stopped.” Ber-geron testified that this last bit of information, that the Crown Victoria’s owner was in the Suburban, “right there, immediately with past experiences, raised some suspicions,” and, “just kind of the excitement in Trooper Trahan’s voice, knowing him, I just assumed that he had something going on.”
Given the totality of the circumstances, it is apparent that it was not any traffic violation, which caused the Crown Victoria to be stopped in Iberville Parish. Information obtained via police radio between the troopers prompted Trooper Bergeron to again pursue the Crown Victoria. Trooper Bergeron’s conduct initiated that he pursued defendant Morris, apparently for the sole purpose of discovering possible criminal activity. Such actions were pretextual. Based upon the information provided to the Court, Trooper Trahan and Trooper Bergeron had no intentions of pursuing the Crown Victoria for the traffic violation committed in St. Martin Parish. Trooper Bergeron’s actions were prompted by information received from Trooper Trahan, which resulted from the stop of the Suburban. Therefore, the Court concludes that the motivation or primary purpose underlying the stop of the Crown Victoria was Trooper Ber-geron’s knowledge that the driver |sof the Crown Victoria and the occupants of the Suburban were in some way connected to one another, not because of any criminal conduct on the part of the occupants of either vehicle. Therefore, this Court finds that the stop of the Crown Victoria was pretextual and without reasonable or probable cause.
Due to a totality of the circumstances, the Court finds that the stop of the Crown Victoria was unreasonable, without cause, and therefore, violative of the Fourth and Fourteenth Amendments to the United States Constitution and Article 1 sections 2 and 5 of the Constitution of Louisiana.

The trial court found that Trooper Ber-geron pursued the Crown Victoria “apparently for the sole purpose of discovering possible criminal activity” and not for any traffic violation. However, the court also stated, “[bjased upon the information provided to the Court, Trooper Trahan and Trooper Bergeron had no intentions of pursuing the Crown Victoria for the traffic violation committed in St. Martin Parish.” With this statement, it would appear that the trial court acknowledged that there was, in fact, a traffic offense committed in St. Martin Parish. Despite this acknowledgment, however, in the last sentence of its ruling the court stated that based on the totality of the circumstances, the stop of the Crown Victoria was without cause.

We disagree with this statement by the trial court for several reasons. Both Trooper Bergeron and Trooper Trahan testified that they witnessed the Crown Victoria committing the traffic offense of following too closely to the preceding vehicle. In addition, both Trooper Bergeron and Trooper Trahan indicated their intention of stopping the Crown Victoria for that traffic offense. There is also objective evidence of this intent to stop the Crown Victoria for this traffic offense in the form of Trooper Trahan’s call for registration information on the vehicle. Both officers also indicated very plausible justifications for their initial failure to stop the | ¡¡vehicle. Trooper Bergeron heard the request for registration information and believed Trooper Trahan was making the stop. Trooper Trahan made the decision to stop the Suburban, instead of the Crown Victoria, after evaluating the danger each vehicle presented to the public, believing the Suburban presented the most immediate danger.

Additionally, despite this evidence of the Trooper’s apparent intent to stop the Crown Victoria, once a traffic violation has been committed the subjective intent of the officers is irrelevant. “The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer.” Waters, 780 So.2d at 1056. The supreme court’s ruling states that even if a stop is pretextual, the actual motives of the police are irrelevant if the police do “no more than they would be authorized to do.” The trial court found the stop of the Crown Victoria was without reasonable and probable cause. For the above reason we find that the trial court erred in failing to apply the objective test the Louisiana Supreme Court endorsed in Waters, discussed above, and in granting the motion to suppress. Based on the evidence presented, we find that Trooper Bergeron had sufficient cause to stop the Crown Victoria based on its commission of the above referenced traffic violation. Therefore, the trial court abused its discretion by granting the motion to suppress and its judgment should be reversed.

While we hold that there was a valid traffic offence, which would provide sufficient cause to stop the vehicle, we acknowledge the difficulty created by the prolonged delay between the commission of the offense, and the stopping of the vehicle. For the sake of completeness, we also analyze the subjective intent of the traffic stop under the criteria created by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

nTERRY STOP

The State further argues the stop of the Crown Victoria was authorized pursuant to La.Code Crim.P. art. 215.1. That code article states in pertinent part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
D. During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. However, nothing herein shall prohibit a peace officer from compelling or instructing the motorist to comply with administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950.

The reasonable suspicion referenced in La.Code Crim.P. art. 215.1(A) is something less than probable cause and something more than a hunch. State v. Flowers, 441 So.2d 707 (La.1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). To determine the ex istence of reasonable suspicion, the totality of the circumstances faced by the law enforcement officers must be considered and the officers must be able to articulate facts that in conjunction with their inferences and the officers’ experience give rise to reasonable suspicion. Id.

The Louisiana Supreme Court has recognized the validity of what we might call an educated hunch, which officers with significant experience and training are able to utilize while working in the field. In State v. Johnson, 01-2081, pp. 2-3 (La.4/26/02), 815 So.2d 809, 811 the court stated:

In determining whether the police possessed the requisite “‘minimal level of objective justification’ ” for an investigatory stop based on reasonable suspicion of criminal activity, United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)(quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing courts “must look at the ‘totality of the circumstances’ of each case,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)(quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The assessment by a reviewing court of the cumulative information known to the officers avoids a “divide-and-conquer analysis” by which the whole becomes less than the sum of its parts because each circumstance examined individually may appear “readily susceptible to an innocent explanation.” Arvizu, 534 U.S. at 274, 122 S.Ct. at 751.

In United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), the United States Supreme Court stressed that the reasonable suspicion test of an investigatory stop must be based on the totality of all of the circumstances considered together. This approach includes the officer’s inferences and deductions made based upon his experience and specialized training. In Arvizu, the Court stated:

Having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer and District Court Judge, we hold that Stoddard had reasonable suspicion to believe that respondent was engaged in illegal activity. It was reasonable for Stoddard to infer from his observations, his registration check, and his experience as a border patrol agent that respondent had set out from Douglas along a little-traveled route used by smugglers to avoid the 191 checkpoint. Stoddard’s knowledge further supported a commonsense inference that respondent intended to pass through the area at a time when officers would be leaving their backroads patrols to change shifts. The likelihood that respondent and his family were on a picnic outing was diminished by the fact that the minivan had turned away from the known recreational areas accessible to the east on Rucker Canyon Road. Corroborating this inference was the fact that recreational areas farther to the north would have been easier to reach by taking 191, as opposed to the 40-to-50-mile trip on unpaved and primitive roads. The children’s elevated knees suggested the existence of concealed cargo in the passenger compartment. Finally, for the reasons we have given, Stoddard’s assessment of respondent’s reactions upon seeing him and the children’s mechanical-like waving, which continued for a full four to five minutes, were entitled to some weight.
| ^Respondent argues that we must rule in his favor because the facts suggested a family in a minivan on a holiday outing. A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct. See Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)(that flight from police is not necessarily indicative of ongoing criminal activity does not establish Fourth Amendment violation). Undoubtedly, each of these factors alone is susceptible of innocent explanation, and some factors are more probative than others. Taken together, we believe they sufficed to form a particularized and objective basis for Stoddard’s stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.

Id. at 277-78,122 S.Ct. at 752-53.

In State v. Wilson, 00-0178, p. 3 (La.12/8/00), 775 So.2d 1051, 1053, the supreme court held that, “[bjeeause reasonable suspicion for an investigatory stop need not rise to the level of probable cause for an arrest, the police require only ‘some minimal level of objective justification ...’ to intrude on an individual’s right to remain free from governmental interference. Huntley, 708 So.2d at 1049 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)).” In Wilson, the court found the investigatory stop by the police was valid and reversed the trial court’s grant of defendant’s motion to suppress. In so ruling the court stated:

In the present case, the lateness of the hour, the location of the car near a project known to the officer from extensive personal experience as a high narcotics trafficking area frequented by individuals living outside of the neighborhood, and the attempt of both men to avoid the police presence immediately upon sight of the officer gave Glas-ser an articulable and minimal objective basis for suspecting that he had interrupted a drug transaction and for stopping both individuals. Glasser had observed the defendant place both hands in his jacket as he attempted to walk away and the officer was fully acquainted with the “close association between narcotics traffickers and weapons.”

Wilson, 775 So.2d at 1053 (citations omitted).

In the present matter, Trooper Berger-on stated that he noticed three vehicles | ^traveling eastbound on 1-10 in close proximity, very late at night at approximately 1:00 am. He also noticed the Crown Victoria, one of those three vehicles, committing a traffic offense. The only reason he failed to stop the vehicle for this offense was because he noticed Trooper Trahan following behind the Crown Victoria and calling in registration information on the vehicle. Despite the fact that Trooper Trahan was calling in for registration information on the Crown Victoria, he actually stopped the Suburban that Trooper Bergeron had noticed following the Crown Victoria. Trooper Bergeron soon learned that the owner of the Crown Victoria was actually traveling in the Suburban. Although the two vehicles were clearly traveling together, the Crown Victoria did not pull over to wait after Trooper Trahan stopped the Suburban. Trooper Bergeron testified that he is familiar with narcotics traffickers’ practice of having a “tail” and a “load” vehicle. At this point Trooper Ber-geron testified that based on past experience, he- immediately became suspicious.

Based on the above factors, and given a “totality of the circumstances” analysis of the relevant facts, we find that Trooper Bergeron possessed at least a minimum level of objective justification for an investigatory stop based on a reasonable suspicion of criminal activity from the cumulative information before him. Therefore, we find that the trial court’s grant of Defendants’ motion to suppress was also in error under a subjective Terry stop analysis.

DECREE

For the above reasons, the trial court’s order granting the Defendants’ motion to suppress is set aside and this case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

THIBODEAUX, J., dissents and assigns written reasons.

JjTHIBODEAUX, J.,

dissenting.

The majority’s rebanee on Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), State v. Lopez, 02-0562 (La.10/30/00), 772 So.2d 90, and State v. Kalie, 96-2650 (La.9/19/97), 669 So.2d 879 is misplaced. In Whren, Lopez, and Kalie, the officers pulled over the defendants almost immediately after they committed the traffic violations. In this case, the defendant was not pulled over until much later and after he had traveled approximately 28 miles into another parish. Neither Trooper Bergeron nor Trooper Trahan decided initially to pull over the driver of the Crown Victoria for a traffic violation. According to his testimony, Trooper Bergeron decided to later pursue the Crown Victoria only after he learned that the owner of the Crown Victoria was a passenger in the Suburban that was pulled over, and that the Crown Victoria had not been pulled over.

As the trial court observed and the majority aptly noted but mistakenly interpreted:

Given the totality of the circumstances, it is apparent that it was not any traffic violation, which caused the Crown Victoria to be stopped in Iberville Parish. Information obtained via police radio between the troopers prompted Trooper Bergeron to again pursue the Crown Victoria. | ¡.Trooper Bergeron’s conduct initiated [sic] that he pursued defendant Morris, apparently for the sole purpose of discovering possible criminal activity. Such actions were pretexual [sic]. Based upon the information provided to the Court, Trooper Trahan and Trooper Bergeron had no intentions of pursuing the Crown Victoria for the traffic violation committed in St. Martin Parish. Trooper Bergeron’s actions were prompted by information received from Trooper Trahan, which resulted from the stop of the Suburban. Therefore, the Court concludes that the motivation or primary purpose underlying the stop of the Crown Victoria was Trooper Bergeron’s knowledge that the driver of the Crown Victoria and the occupants of the Suburban were in some way connected to one another, not because of any criminal conduct on the part of the occupants- of either vehicle. Therefore, this Court finds that the stop of the Crown Victoria was pretextual and without reasonable or probable cause.
Due to a totality of the circumstances, the Court finds that the stop of the Crown Victoria was unreasonable, without cause, and therefore, violative of the Fourth and Fourteenth Amendments to the United States Constitution and Article 1 sections 2 and 5 of the Constitution of Louisiana.

The trial court found that the trooper pursued the Crown Victoria “apparently for the sole purpose of discovering possible criminal activity” and not for any traffic violation. The court later stated that the Crown Victoria was not stopped for any traffic violation. However, it also stated: “Based upon the information provided to the Court, Trooper Trahan and Trooper Bergeron had no intentions of pursuing the Crown Victoria for the traffic violation committed in St. Martin Parish.” In the last sentence of its ruling, the court stated that based on the totality of the circumstances, the stop of the Crown Victoria was without cause. I agree.

The majority also errs when it finds a valid Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) stop. The majority concludes that: “[t]he Louisiana Supreme Court has recognized the validity of what we might call an educated hunch, which officers with significant experience and training are able to utilize while working in the field.” | aTo the contrary, our jurisprudence has never recognized a “hunch,” educated or otherwise. The reasonable suspicion standard under La.Code Crim.P. art. 215.1 is something less than probable cause and something more than a hunch. State v. Flowers, 441 So.2d 707 (La.1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931 (1984). While the reasonable suspicion is not a very burdensome one, that standard has now been further diluted by the majority to an “educated hunch.” Essentially, the majority has disemboweled a very specific codal standard articulated in La.Code Crim.P. art. 215.1. This “educated hunch” now articulated by the majority is the first time a court has ever required such a loose standard. As the United States Supreme Court explained in United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1:

The officer ... must be able to articulate something more than an ‘inchoate and unparticularize suspicion or hunch’.... The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. (Citations omitted).

The most important inquiry in assessing the validity of an investigatory stop pursuant to La.Code Crim.P. art. 215.1 is the officer’s knowledge at the time of the stop. State v. Williams, 421 So.2d 874 (La.1982). In the present case, the State contends Trooper Bergeron had reasonable suspicion to make a Terry stop because Defendant Morris was driving a vehicle registered to a passenger in the Suburban, the vehicles were traveling together late at night, and the Suburban committed an apparently deliberate traffic offense. However, Trooper Bergeron did not have all of this information at the time he stopped the Crown Victoria. Trooper Bergeron did not testify that he had knowledge that the Suburban driver deliberately committed a traffic offense. Trooper Trahan testified that he did not advise Trooper Bergeron over the radio about the illegal lane change by the Suburban. Therefore, at the time Trooper Bergeron stopped the Crown Victoria, the testimony reveals that he knew only that a | ¿passenger in the Suburban was the registered owner of the Crown Victoria and that they had been seen traveling in the vicinity of each other. He testified that in his experience the owner of a drug courier vehicle will often travel nearby and try to get the police to pull them over instead. This case is distinguishable from State v. Johnson, 02-2081 (La.4/26/02), 815 So.2d 809 and United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) discussed by the majority. In this case there was very little to factor into a “totality of the circumstances” test. In addition, there is no evidence that the driver of the Crown Victoria made any effort to evade the troopers or that the vehicle was traveling in a high-crime area. Further, there was no evidence Trooper Bergeron had any information linking the defendants to drug trafficking. Trooper Bergeron testified that he did not know if Trooper Trahan had requested a criminal history check on the occupants of the Suburban. Therefore, the criminal histories should not be considered as part of the totality of the circumstances. I have been unable to discover a case where a court has held that two vehicles traveling together late at night is conduct peculiarly associated with drug trafficking, and that such conduct could form the basis of reasonable suspicion for a Terry stop. The facts in this case combined with the resulting inferences and the officers’ experience do not give rise to reasonable suspicion. Without more, the State failed to prove that the stop of the Crown Victoria was based on reasonable suspicion of criminal activity.

In its written reasons for ruling, the trial court found that Trooper Bergeron’s knowledge that the occupants of both vehicles were somehow connected to each other, without any criminal conduct by any of the occupants of either vehicle, was insufficient for reasonable suspicion. In State v. Thomas, 2002-0471 (La.App. 3 Cir. 10/30/02); 829 So.2d 1137, writ denied, 2002-2920 (La.4/21/03); 841 So.2d 789, this court stated:

LWhen reviewing a trial court’s denial of a motion to suppress, the appellate court looks at the totality of the evidence presented at the suppression hearing. State v. Bargeman, 98-617 (La.App. 3 Cir. 10/28/98); 721 So.2d 964, writ denied, 99-0033 (La.5/28/99); 743 So.2d 658. Unless the trial court’s conclusions are not supported by the evidence or there exists a clear abuse of discretion, an appellate court should not overturn the trial court’s ruling. State v. Purvis, 96-787 (La.App. 3 Cir. 12/11/96); 684 So.2d 567 (citing State v. Burkhalter, 428 So.2d 449 (La.1983)). In other words, the appellate court will give the trial court’s determination great weight and will not set aside the trial court’s ruling unless clearly mandated by a preponderance of the evidence. State v. Lewis, 97-1244 (La.App. 3 Cir. 3/6/98); 728 So.2d 1.

Id. at 1139-1140.

The trial court did not abuse its discretion in granting the motions to suppress based on the Terry stop. The majority errs and, in so doing, does inestimable violence to established jurisprudential standard and eviscerates the precepts supporting Article 1, Sections 2 and 5 of the Louisiana Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.


source: Caselaw Access Project

author: JjMICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    PAUL HYDE, INC. v. Beverly RICHARD.
    No. 2003-C-1413.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2003.
    Rehearing Denied Sept. 30, 2003.

      Vallerie Oxner, Metairie, LA, Counsel for Relator.
    Valerie M. Briggs, Schafer & Schafer, New Orleans, LA, Counsel for Respondent.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR.).
   JjMICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

In this action, filed to enforce the arbitration clause of a residential construction contract, defendant Paul Hyde, Inc. (“Hyde”) seeks supervisory review of a judgment granting plaintiff Beverly D. Richard’s motion to dissolve a contractor’s lien filed by Hyde.

FACTS

Plaintiff alleged in her petition that she and Hyde entered into a contract for construction of a single family home on May 20, 2002, to be constructed at 8700 Scotts-wood Drive in New Orleans. The contract provided for arbitration. Hyde “abandoned” construction in January 2003, after “numerous conversations” between the parties. Plaintiff subsequently notified Hyde that she did not wish Hyde to complete construction of her home, and that she would agree to dissolve the contract. A disagreement arose over the amount of money plaintiff owed Hyde. Plaintiff submitted a notice of arbitration to Hyde on March 10, 2003. | ¡.Hyde filed a hen on April 3 to cover $34,322.91 allegedly owed to it by plaintiff. The instant suit followed.

DISCUSSION

Plaintiff claimed in her motion that Hyde’s lien should be stricken because, among other things, the contract provided for arbitration, and because Hyde failed to file a “notice of contract” pursuant to La. R.S. 9:4811 prior to filing its lien. However, in her trial court memorandum plaintiff did not argue that arbitration precluded Hyde from filing its hen. Further, there is no support for the proposition that arbitration precludes a general contractor from filing a lien to protect the privilege granted it under the Private Works Act, La. R.S. 9:4801, et seq. Plaintiff conceded in her trial court memorandum that there was “no dispute” that Hyde filed a notice of contract.

La. R.S. 9:4801(1) grants a contractor a privilege on an immovable for the price of his work. Under La. R.S. 9:4822(B), to protect that privilege, a general contractor whose privilege has been preserved by filing a notice of contract under La. R.S. 9:4811 “shall file a statement of his privilege within sixty days after the filing of the notice of termination or substantial completion of the work.”

It is not disputed that there was no “notice of termination” filed in this case. La. R.S. 9:4822(H) states that a work is “substantially completed” when:

(1) The last work is performed on, or materials are delivered to the site of the immovable or to that portion or area with respect to which a notice of partial termination is filed; or
| c¡(2) The owner accepts the improvement, possesses or occupies the immovable, or that portion or area of the immovable with respect to which a notice of partial termination is filed, although minor or inconsequential matters remain to be finished or minor defects or errors in the work are to be remedied.

Plaintiff argued in her trial court memorandum that construction on her residence had not been substantially completed, and therefore the period set by La. R.S. 9:4822(B) within which Hyde could file its lien had not begun to run. In other words, plaintiff interpreted La. R.S. 9:4822(B) as providing a sixty-day window within which a general contractor can file its lien. Plaintiff conceded that there was no jurisprudence addressing the issue of a general contractor’s lien filed before substantial completion (or the filing of a notice of termination of the work).

In its writ application, Hyde cites this court’s decision in First National Bank of Commerce v. de la Tour Contractors, Inc., 570 So.2d 239 (La.App. 4 Cir.1990), where this court stated that La. R.S. 9:4822 required that a statement of a claim or privilege be filed “no later than sixty days after the filing of a notice of termination of the work or substantial completion of the work.” Hyde submits that, based on this interpretation, its lien would only be invalid if it was filed “later than” sixty days after substantial completion. The interpretation of the language of La. R.S. 9:4822 with regard to when a general contractor or other party with a privilege under the Private Works Act can file a lien was not at issue in First National Bank of Commerce v. de la Tour Contractors, Inc. Therefore, its value as Lprecedent is minimal. However, that view is not without support. It has been suggested that the “within” language of La. R.S. 9:4822 means that the lien must be filed “not later than” the period set forth by the applicable provision. Rubin, Ruminations on the Loui siana Private Works Act, 58 La. L.Rev. 569, 591 (1998) (noting the lack of any jurisprudence on the issue).

Reading the statute in a way that would allow early lien filing would benefit lien claimants, particularly those who start work early on a project and who complete their tasks well before substantial completion of the entire construction, such as those who supply concrete for the slabs or those who install the roof.

Id.

Plaintiff seeks strict construction of La. R.S. 9:4822(B), and a holding that, essentially, a general contractor or other person with a privilege under the Private Works Act cannot file a lien before notice of termination or substantial completion. The Private Works Act is in derogation of general contract law, and the general rule is that it therefore must be strictly construed. Hibernia National Bank v. Belleville Historic Development, L.L.C., 2001-0657, p. 7 (La.App. 4 Cir. 3/27/02), 815 So.2d 301, 305, writ denied, 2002-1177 (La.6/14/02), 818 So.2d 785. However, it should not be construed so as to defeat the purpose of the statute. Subdivision Planning Engineers, Inc. v. Manor Dev. Corp., 349 So.2d 247 (La.1977). In Subdivision Planning Engineers, supra, the court stated that the object of the predecessor statute to the Private Works Act was first, to protect the claims of all those whose labor, skills and material improve the immovable. Reading La. R.S. 9:4822(B) to require the filing of a lien only within a sixty-day window “would make it more difficult for lien claimants to assert their rights.” Rubin, Ruminations on the Louisiana Private Works Act, 58 La. L.Rev. 569, 590 (1998).

IfiThe purpose of the Private Works Act would be thwarted by interpreting La. R.S. 9:4822(B) to hold that Hyde, who no longer is working on plaintiffs home, cannot file its lien before substantial completion of the home. Such a holding would require that Hyde, and others afforded privileges by the Private Works Act, including laborers, exercise considerable diligence to ascertain when substantial completion occurs so as to be able to file their liens within a sixty-day window. Conversely, a holding that Hyde’s lien was properly filed when its participation in the project ended, although before substantial completion, would promote the object of the Private Works Act. Plaintiff does not suggest any negative consequences to permitting someone in Hyde’s circumstances to file its lien when its participation in the project ends. Therefore, we find that Hyde’s lien was properly filed.

CONCLUSION

For the foregoing reasons, we grant the writ and reverse the judgment of the trial court, thereby reinstating Hyde’s lien.

WRIT GRANTED; JUDGMENT REVERSED.

      . In the caption of their application for supervisory writ, the relator reversed the names in the caption of this case. The caption of the petition in the trial court was "Beverly D. Richard v. Paul Hyde, Inc."

      . La. R.S. 9:4822(B) applies to "general contractors.” Hyde refers to La. R.S. 9:4822(B) as the controlling provision of La. R.S. 9:4822, as did plaintiff in her trial court memorandum.

      . In C & S Safety Systems, Inc. v. SSEM Corp., 2002-1780 (La.App. 4 Cir. 3/19/03), 843 So.2d 447, this court stated that establishing the date on which substantial completion occurred was an essential element of a subcontractor’s claim under the Private Works Act because that date “marks the commencement of the lien period” under La. R.S. 9:4822(C). However, in C & S this court also noted that the issue of whether a lien can be filed before the commencement of the sixty-day period was res nova, and was an issue it found unnecessary to resolve. 2002-1780, p. 16, 843 So.2d at 457.


author: SMITH, Presiding Justice,

text:
    Jeremy Dean MARTIN v. STATE of Mississippi.
    No. 2002-KA-00607-SCT.
    Supreme Court of Mississippi.
    July 17, 2003.
    Rehearing Denied Oct. 2, 2003.

      Ross Parker Simons for appellant.
    Office of the Attorney General by: W. Glenn Watts, for appellee.
    BEFORE SMITH, P.J., CARLSON and GRAVES, JJ.
   SMITH, Presiding Justice,

for the Court.

¶ 1. Jeremy Dean Martin (“Martin”) was convicted in the Jackson County Circuit Court for the murder of his father, Robert Bruce Martin. Martin was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. The trial court denied Martin’s request for a new trial. Aggrieved, Martin appeals to this Court contending that the trial court erred in (1) refusing to suppress his confession, (2) admitting into evidence a crime scene photograph, (3) refusing to grant a mistrial when a witness testified about a prior bad act by Martin, and (4) refusing to instruct the jury on the definition of reasonable doubt. Finding no reversible error, we affirm the trial court.

FACTS

¶ 2. After years of conflict, a derogatory remark made by his father, Robert Bruce Martin, led the seventeen-year-old Martin, his pregnant girlfriend Crystal Lynn Broa-dus (“Broadus”), and actual gunman Richard Jackson Jacobs (“Jacobs”), to plan to kill Robert Martin on March 21, 2000. Martin called Broadus and asked her to bring a gun to his home. Martin brought the weapon into his home. He then gave the gun to Jacobs who killed Robert Martin. Jacobs then removed Robert Martin’s wallet and fled the jurisdiction along with Martin, Broadus, and accessory-after-the-fact Donnie Ryals.

¶ 3. Martin and Broadus were picked up in Texas while walking along a highway after their car had broken down. After he was detained and signed a statement saying he understood and waived his rights under Miranda v. Arizona, Martin gave a confession to Texas Ranger Tony Leal as to the events that led to the murder. Deputy Ken McClenic of the Jackson County Sheriffs Department retrieved Martin and took a videotaped statement from him after obtaining a signed waiver of his Miranda rights. Martin had been hospitalized for unspecified psychiatric problems several times and was taking Lithium, Welbutrin, Haldol and Ritalin. Martin claims these confessions were not voluntary due to his age and mental condition.

DISCUSSION

I. CONFESSION.

¶4. Martin avers that his youth and mental condition precluded him from effecting a knowing and voluntary waiver of his constitutional rights to counsel and to remain silent. The prosecution has the burden of proving beyond a reasonable doubt that the confession was voluntary. Morgan v. State, 681 So.2d 82, 86 (Miss. 1996). This burden is met and a prima facie case established by the testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offers of reward. Dancer v. State, 721 So.2d 583, 587 (Miss.1998) (holding the confession of a thirteen-year-old voluntary). Whether there was an intelligent, knowing and voluntary waiver is a factual question to be determined by a trial court from the totality of the circumstances. McGowan v. State, 706 So.2d 231, 235 (Miss.1997). “This totality of the circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights.” Dancer, 721 So.2d at 587 (quoting Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)). This Court has also held that the necessity of a knowing and intelligent waiver does not require sweeping inquiries into the state of mind of a criminal defendant who has confessed. Butler v. State, 608 So.2d 314, 322 (Miss.1992). “[Cjoercive police action is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Id. This Court will only reverse a trial court’s determination of voluntariness if convinced that such a finding is manifestly wrong and/or against the overwhelming weight of the evidence. Abram v. State, 606 So.2d 1015, 1031 (Miss.1992).

¶ 5. Viewing the circumstances surrounding the confessions in their totality, it is apparent there was a knowledgeable and intelligent waiver by Martin of his Miranda rights. Prior to any interrogation, Martin blurted out circumstances surrounding his crimes. The officer, Texas Ranger Tony Leal, informed Martin that they could speak about those matters after they reached the substation and Martin was given his Miranda rights. When Martin reached the substation, a justice of the peace ensured Martin was aware of his rights by reading him the rights guaranteed under Miranda. The statement was signed by Martin, the magistrate, and Neal who witnessed the warning. The officer did not observe any unusual or erratic behavior by Martin. After the warnings were given, Martin indicated he wanted to talk to Neal, and Neal again read Martin his rights before taking his statement. There was no indication of coercion or misconduct of any kind.

¶ 6. The Jackson County Sheriffs Department was similarly circumspect in taking Martin’s confession. Martin’s Miranda rights were read to him sentence by sentence by Deputy McClenic. After each sentence he was asked if he understood and, if so, to initial each sentence. He was then asked to sign the bottom of the page. Only then was Martin’s confession videotaped. There was no indication that Martin was behaving strangely before giving his confession or that the officers intentionally withheld medication. There was an unsubstantiated allegation that Deputy McClenic may have supplied Martin with a pack of cigarettes. Even if true, this would not qualify as coercion. The confessions were knowingly and intelligently given and were free of any coercion or improper promises by the officers. This issue is without merit.

II. CRIME SCENE PHOTOGRAPH.

¶ 7. The prosecutor offered, and the court admitted into evidence, a gruesome photograph of the crime scene. Martin argues that the prejudicial effect of this photograph outweighed its probative value, and the trial court committed reversible error in admitting it. “The admissibility of photographs rests within the sound discretion of the trial judge.” McGilberry v. State, 741 So.2d 894, 906 (Miss.1999) (citing Blue v. State, 674 So.2d 1184, 1210 (Miss.1996)). “Such discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and extenuation of probative value.” Id. (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). In addition to weighing probative value versus prejudicial effect, the trial court must also consider “(1) whether the proof is absolute or in doubt as to the identity of the guilty party, and (2) whether the photographs are necessary evidence or simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury.” Id. (quoting Blue, 674 So.2d at 1210). “Further, photographs have evi-dentiary value when they: 1) aid in describing the circumstances of the killing and the corpus delicti; 2) where they describe the location of the body and the cause of death; 3) where they supplement or clarify witness testimony.” Id. (quoting Westbrook v. State, 658 So.2d 847, 849 (Miss.1995)). Cumulative status does not eliminate photographs’ evidentiary value. Tubbs v. State, 402 So.2d 830, 836 (Miss.1981).

¶ 8. There is no doubt the photograph was gruesome. However, as the trial court pointed out, the photograph described the circumstances surrounding the homicide. It corroborated the testimony of witnesses and showed the location and positioning of the body. It accurately portrayed the scene witnessed and testified to by Deputy Sheriff Robert Lambeth. The photograph also showed the nature of the crime and the lack of any possibility of self-defense. It “depicts the criminal agency used to effect the death of the deceased” as the trial court stated. The photograph elaborated on the autopsy protocol and diagnoses report which was admitted into evidence by stipulation. The trial court’s purpose in admitting the photograph was “to corroborate the testimony of [the] State’s witnesses.” The trial court refused to allow Martin to substitute a less graphic photograph that still showed the position and location of the body. Martin alleges this was error. In closing arguments, the prosecutor compared the photograph showing fatal injury suffered by Robert Martin with a family photograph; Martin alleges this constituted error.

¶ 9. The trial court did not abuse its broad discretion in admitting the graphic photograph into evidence. The trial court is in the best situation to judge the value of evidence, and Judge Harkey’s decision to admit the photograph was not an abuse of discretion. We find that the admittance of the photograph into evidence was not error but rather was within the sound discretion of the trial judge. McGilberry, 741 So.2d at 906.

III. PRIOR BAD ACTS BY THE DEPENDANT.

¶ 10. The jury, during re-direct of a prosecution witness, heard a statement about a prior bad act allegedly committed by Martin. “The decision whether to grant a mistrial lies in the sound discretion of the trial judge.” McGilberry, 741 So.2d at 912 (citing Horne v. State, 487 So.2d 213, 214 (Miss.1986)). If a curative instruction cannot remove the prejudicial effect of inadmissible issues placed before a jury, then a mistrial is required. Id. (citing Reynolds v. State, 585 So.2d 753, 755 (Miss.1991)). Considerable discretion is given to the trial judge in determining if a mistrial is warranted because the trial judge is “peculiarly situated to determine if a remark is truly prejudicial.” Id. (quoting Gossett v. State, 660 So.2d 1285, 1290-91 (Miss.1995)). “Thus, the judge is vested with discretion to determine whether the comment is so prejudicial that a mistrial should be declared.” Alexander v. State, 602 So.2d 1180, 1182 (Miss.1992) (citing Edmond v. State, 312 So.2d 702, 705 (Miss.1975)).

¶ 11. The statement elicited from the State’s witness was unresponsive to the question asked by the prosecution. There is no indication that there was any intent by the prosecution to introduce improper evidence to the jury. Responding to a line of defense questioning referring to the hospitalization and medication of Martin, the prosecutor asked, “Mr. Mitchell, when you did have occasion to see Jeremy Martin, did he walk around or talk crazy?” The witness responded:

No. The only time I seen him act crazy was one day when a friend of mine was over there. And the friend of mine gave him a ride to the store. And they come back and Jeremy done stole a tape out of the boy’s car. Which I don’t know that he did, I didn’t see him do this, but the boy said he did. And he was trying to say something to Jeremy about it. And Jeremy told him “I don’t want to hear another word,” like he was going to come kick the man’s ass. And this man is forty-something years old. And I had to calm the man down, I said let him go, just let him keep it if he got it, don’t worry about it. Because he would have hurt Jeremy. I mean, I never seen him do nothing other than that. That’s the only time I ever heard him say anything. I thought he was wrong.

The trial court held the question was proper and found the prejudicial effect of the unresponsive statement did not warrant a mistrial. "Where serious and irreparable damage has not occurred, the judge should cure the mistake by admonishing the jury to disregard the impropriety. Id. at 1182-3 (citing Johnson v. State, 477 So.2d 196, 210 (Miss.1985)). This is what occurred in the present case. The jury heard an improper statement, an objection to the statement was sustained, and the judge instructed the jury to disregard the statement since he did not believe irreparable damage had occurred. The refusal to grant a mistrial in these circumstances was well within the trial court’s discretion and did not constitute error.

IV. REASONABLE DOUBT INSTRUCTION.

¶ 12. Martin alleges that an instruction defining reasonable doubt should be included in the instructions to the jury. Jury instructions are to be taken as a whole. Nicholson ex rel. Gollott v. State, 672 So.2d 744, 752 (Miss.1996). In determining whether error exists in granting or refusing jury instructions, the instructions must be read as a whole; if the instructions fairly announce the law and create no injustice, no reversible error will be found. Collins v. State, 691 So.2d 918, 922 (Miss.1997); Johnson v. State, 823 So.2d 582, 584 (Miss.Ct.App.2002). This Court has long held that a definition of reasonable doubt is not a proper instruction for the jury; “[r]easonable doubt defines itself.” Barnes v. State, 532 So.2d 1231, 1235 (Miss.1988) (quoting Boutwell v. State, 165 Miss. 16, 143 So. 479, 483 (1932)).

¶ 13. In their entirety, the jury instructions in the present case correctly stated the law and applied that law to the facts. The requested definition of reasonable doubt in the refused jury instruction, D-5, is as follows:

A reasonable doubt is a doubt based upon reasonable and common sense, the kind that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of her own affairs.

The trial court adequately instructed the jury about reasonable doubt in instruction S-6 by listing each of the elements of the offense and then stating: “If the state has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the Defendant not guilty of Capital Murder.” The instructions taken as a whole correctly stated the law. Defining reasonable doubt for the jury is improper. Barnes, 582 So.2d at 1235. The trial court did not err in refusing Martin’s proposed instruction defining reasonable doubt.

CONCLUSION

¶ 14. The trial court correctly found that Martin’s confessions were voluntary. The court below did not abuse its discretion in admitting the photograph or in refusing to grant a mistrial. The trial court correctly followed Mississippi law in refusing to grant an instruction defining reasonable doubt. The judgment of the Jackson County Circuit Court is affirmed.

¶ 15. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED.

PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.


author: SMITH, Presiding Justice, McRAE, Presiding Justice,

text:
    Kathy BURNETT and Phillip Burnett v. Dr. Lori FULTON.
    No. 2000-CA-01241-SCT.
    Supreme Court of Mississippi.
    Sept. 18, 2003.

      John F. Hawkins and Steven Mark Wann, Jackson, for appellants.
    Jimmy B. Wilkins, Mildred M. Morris, and Susan Latham Steffey, Jackson, for appellee.
   SMITH, Presiding Justice,

for the Court.

¶ 1. The genesis of the case at bar arises from a suit filed in the Circuit Court of Hinds County by Kathy and Phillip Burnett against Dr. Lori Fulton alleging medical malpractice. The jury found for Dr. Fulton. On appeal, the Burnetts raise the issue of improper peremptory challenges by Dr. Fulton. We affirm the decision of the learned trial judge who found all the jurors strikes to be race neutral.

FACTS

¶ 2. On October 3, 1997, Kathy and Phillip Burnett filed a medical malpractice action against Dr. Lori Fulton in the Circuit Court of the First Judicial District of Hinds County. A jury trial began on March 13, 2000. At the conclusion of voir dire, counsel for Dr. Fulton exercised all four of her peremptory challenges to strike African Americans from the jury panel. The Burnetts made a Batson challenge, and Dr. Fulton responded appearing to give race neutral reasons for the strikes.

¶ 3. Counsel for Dr. Fulton stated the following reasons, to which counsel for the Burnetts made no rebuttal:

As to Juror No. 6, ... Cavett, she didn’t laugh at any of Mr. Wilkins comments. She looked away the entire time he was in voir dire. She frowned at several comments he made and several questions he asked her. Her body language was inappropriate. She has limited education and we have a complicated case.
Our next challenge was to ... Ransom who was completely unengaged. She looked down during Mr. Wilkins voir diré, did not make any eye contact whatsoever with him, and we have excused Ms. Ransom.
Ms. Myrick is 29 years old. That’s exactly the same age that Ms. Burnett was when she began to see Dr. Fulton for a period of approximately four years. She is going to relate to that time period in life. She also frowned, refused to make eye contact, and appeared to have her eyes closed during part of the voir dire.
Ms. Thigpen absolutely was asleep during the first part of the voir dire. She actually paid more attention to Mr. Wilkins than to Mr. Hawkins, but she had her eyes closed and at one point totally nodded off and shook when she woke up. She was completely inattentive. She also could not remember the results of her civil case and was not particularly interested in the judicial process. And, for the record, we have accepted a number of African-American Jurors including African American women.

¶ 4. Dr. Fulton then raised a Batson challenge to the Burnetts’ strikes, and the Burnett’s counsel articulated race-neutral reasons for having used all strikes against Caucasians. Of the jurors struck by the Burnetts’ counsel, one knew Dr. Fulton and had worshiped at the same church, one was an acquaintance of a senior partner in defense counsel’s firm, and one was, Mr. Barranco, a pharmacist and thus a member of the health care profession who was openly hostile toward both sides during voir dire. Defense counsel indicated that this strike was not a surprise. These strikes are not, however, at issue in this appeal.

¶ 5. Upon considering the justifications given by both parties, the trial judge made the following observations with regard to the exercise of the strikes:

The Court: I’m going to allow all of the challenges to stand. I am troubled by some of the reasons that have been given for some of the strikes, and this provides me with another opportunity to give my new [definition] of voir dire, and I hope that’s not what’s occurring in this case. But more and more and more voir dire is an exercise in finding race neutral reasons to justify racially motivated strikes. And that’s what I’m seeing more and more and more to the point that I’m almost ready to decide that there will be no voir dire other than an introduction of the parties and the litigants and we can just bring the jurors in and let the lawyers pick what their race is and decide who they want to strike, because more and more and more I’m having cases where plaintiff lawyers, no matter what a juror says, they’re going to strike all the white people that they can strike, and defense lawyers are going to strike all the black people that they can strike ... So having given my speech again because I’m just tired of seeing it ... I’m letting your strikes stand just as you made them and I’m letting their strikes stand just as you made them. Bring in the jury.

¶ 6. Although the judge allowed the reasons to stand, he did not make “specific explanation” on the record. The selected jury returned a verdict in favor of Dr. Fulton. The sole issue on appeal is whether this case must be reversed in light of Dr. Fulton’s peremptory challenges and the judge’s ruling to let them stand.

STANDARD OF REVIEW

¶ 7. A trial court’s determinations regarding Batson challenges are afforded great deference because they are, in large part, based on credibility. McGilberry v. State, 741 So.2d 894, 923 (Miss.1999) (citing Coleman v. State, 697 So.2d 777, 785 (Miss.1997)). This deference given to the trial judge is due because the trial judge is present during voir dire and is in a better position to measure the prospective jurors’ responses. Venton v. Beckham, 845 So.2d 676, 679 (Miss.2003); Smith v. State, 802 So.2d 82, 86 (Miss.2001); Wells v. State, 698 So.2d 497, 501 (Miss.1997). Therefore, a trial court’s findings are to be given the utmost consideration on appeal, and this Court will reverse only where the decision is clearly erroneous or against the overwhelming weight of the evidence. Gary v. State, 760 So.2d 743, 749 (Miss.2000); Randall v. State, 716 So.2d 584, 587 (Miss. 1998); Collins v. State, 691 So.2d 918, 926 (Miss.1997). Recently, the United States Supreme Court restated its earlier plurality holding that

in the context of direct review, therefore, we have noted that “the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal” and will not be overturned unless clearly erroneous.

Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003) (quoting Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)).

LAW AND ANALYSIS

A. WHETHER DR. FULTON’S PEREMPTORY STRIKES WERE RACE-BASED AND THEREFORE A VIOLATION OF BATSON v. KENTUCKY, 476 U.S. 79 (1986)?

¶ 8. Pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) the proper analysis for a peremptory challenge violation has been set forth by this Court in numerous cases. See Berry v. State, 728 So.2d 568, 572 (Miss.1999); Randall, 716 So.2d at 585; McFarland v. State, 707 So.2d 166, 171-72 (Miss.1997). We follow the decision made by the United States Supreme Court in Miller-El, 537 U.S. at 328-29, 123 S.Ct. at 1035, holding the Batson requirements to be as follows:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. 476 U.S. at 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Id., at 97-98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Id., at 98, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.

(emphasis added).

¶ 9. Here, the Burnetts challenged Dr. Fulton’s use of all four of her peremptory strikes against prospective African-American jurors. It is of no consequence whether the Burnetts established a Batson pri-ma facie case, as the trial court required Dr. Fulton to provide race-neutral reasons for her challenges. Because Dr. Fulton offered explanations for her challenges, the elements of whether the Burnetts established a prima facie case and whether Dr. Fulton should be required to give race-neutral reasons for her challenges are immaterial. Mack v. State, 650 So.2d 1289, 1297 (Miss.1994) (citing Hernandez, 500 U.S. at 352-54, 111 S.Ct. 1859).

¶ 10. The striking party is not required to “provide the same degree of justification for a peremptory challenge as is required for a challenge for cause.” Bush v. State, 585 So.2d 1262, 1268 (Miss.1991). Inattentiveness, demeanor, sleeping during voir dire, lack of eye contact, educational level and hostility (the reasons cited by Dr. Fulton) have all been held by this Court to be race neutral reasons in keeping with Batson. Mack, 650 So.2d at 1299; Harper v. State, 635 So.2d 864, 868 (Miss.1994); Lockett v. State, 517 So.2d 1346, 1356-57 (Miss.1987).

¶ 11. Once the striking party has submitted race-neutral reasons for its peremptory challenges, the opposing party has a chance to rebut the proffered reasons. Gary v. State, 760 So.2d at 743; Chisolm, v. State, 529 So.2d 635, 638 (Miss. 1988). The Burnetts did not rebut the race neutral reasons given by Dr. Fulton. This Court has previously held that a lack of response to the striking party’s race-neutral reasons makes it improper for the Court to reverse on this point. Davis v. State, 551 So.2d 165, 172 (Miss.1989). In the instant case, the Burnetts did not rebut with a specific argument, such as pretext, in order to supplement their general Batson challenge. Therefore, this argument is waived. Mack, 650 So.2d at 1297. The Burnetts were not required to rebut, but by offering no other arguments regarding the peremptory strikes, they forced the trial court to base its decision solely upon the reasons given by Dr. Fulton. Gary, 760 So.2d at 743; Johnson v. State, 529 So.2d 577, 584 (Miss.1988).

¶ 12. In Hatten v. State, 628 So.2d 294 (Miss.1993), this Court held that trial court judges should make on-the-record factual determinations of race-neutral reasons in cases involving Batson challenges. Id. at 298. In making our decision, we remarked that the trial judge in Hatten “did not merely accept the specific reasons given by the prosecution at face value, but considered whether they were contrived.” Id. at 299. Hatten does not dictate absolute truth in the reason tendered. It only asks that there be enough basis in fact to permit the court to make a reasonable judgment that it is not contrived.

¶ 13. Here, Dr. Fulton also challenged the makeup of the jury selection process by challenging the Burnetts regarding their striking all Caucasians. While it is true that Dr. Fulton did indeed challenge four African-American jurors peremptorily, it remains also true that Dr. Fulton accepted a number of African-American jurors including some African-American women. Thus, the Burnetts have not shown a systematic pattern nor even an isolated striking of jurors in a racially discriminatory manner.

¶ 14. We need first examine the reasons given by Dr. Fulton for striking the jurors in question. As to juror Cavett, she looked away the entire time defense counsel was in voir dire, she frowned, used inappropriate body language and, more importantly, as noted by defense counsel, “she had limited education and we have a complicated case.” Juror Ransom was completely unengaged during voir dire, showed no sign of actively participating in the process, and failed to make eye contact. Juror Myriek was 29 years old, the exact same age of plaintiff Ms. Burnett when she first sought care from Dr. Fulton. Defense counsel was concerned that “she is going to relate to that time period in life.” She frowned, refused to make eye contact and at one point, appeared to have her eyes closed and was sleeping. Juror Thigpen was absolutely asleep during the first part of voir dire, was inattentive and more importantly, she “could not remember the results of a prior civil case in which she had served as a juror.” Defense counsel was concerned that she was uninterested in the judicial process.

¶ 15. This Court must consider the overall context of the reasons given for peremptory strikes. Every reason cited by Dr. Fulton has been upheld by this Court as being a valid race-neutral reason for a peremptory challenge to a juror. Woodward v. State, 726 So.2d 524, 531 (Miss.1997) (juror seen as hostile to a party); Mack v. State, 650 So.2d at 1299 (inattentiveness, sleeping, yawns as a race neutral factor); Harper v. State, 635 So.2d 864, 868 (Miss.1994) (lack of eye contact); Griffin v. State, 607 So.2d 1197, 1202-03 (Miss.1992) (juror sleeping); Bolton v. State, 752 So.2d 480, 483 (Miss.Ct.App.1999) (citing Lockett v. State, 517 So.2d at 1349) (focusing of educational background as a basis for juror challenge).

¶ 16. A trial judge’s decision regarding peremptory challenges is a factual finding and will not be reversed unless it is clearly erroneous or against the overwhelming weight of the evidence. McGil-berry v. State, 741 So.2d at 923. As this Court has stated,

“A circuit judge has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause. The circuit judge has an absolute duty, however, to see that the jury selected to try any case is fair, impartial and competent.” Ill. Cent. R.R. v. Hawkins, 830 So.2d 1162, 1176 (Miss.2002). See also Brown ex rel. Webb v. Blackwood, 697 So.2d 763, 769 (Miss.1997); Poe v. State, 739 So.2d 405, 409 (Miss.Ct.App.1999) (the trial court has wide latitude in deciding whether to excuse a potential juror, including an exclusion for cause).

Venton v. Beckham, 845 So.2d at 679. There need only be race-neutral explanations given for striking a juror. Hernandez, 500 U.S. at 358-59, 111 S.Ct. at 1866. Dr. Fulton unquestionably gave race-neutral reasons for striking the jurors in issue. Most critical in considering the case at bar is the fact that the Burnetts did not rebut these reasons in spite of the fact that they were clearly given that opportunity to do so as required by case law. Gary v. State, 760 So.2d at 743; Chisolm v. State, 529 So.2d at 638. Accordingly, the Court need analyze only the reasons given by the defendant. Harper v. State, 635 So.2d at 867. We have held that when this occurs the issue is waived. Mack v. State, 650 So.2d at 1297. Finally, we have also held that it is improper for the Court to reverse on this point when there is a lack of response to a striking party’s race-neutral reasons. Davis v. State, 551 So.2d at 172. Here, the trial judge could only rely on the statements by Dr. Fulton’s counsel. The trial court, despite some concerns, decided the strikes were allowable. The trial court’s reservations were obviously, based upon both sides striking jurors of their respective races which was most concerning to the court. However, great deference is accorded to the trial judge in determining whether the offered explanation is truly a race-neutral reason. Walters v. State, 720 So.2d 856, 865 (Miss.1998). Here, Judge Graves is to be afforded such great deference after truly giving this matter his utmost attention. He ultimately determined to allow both sides’ strikes to stand as based on valid race-neutral reasons. By allowing Dr. Fulton’s peremptory challenges to stand given the unrebut-ted racially neutral reasons articulated by Dr. Fulton, the trial court necessarily concluded that the Burnetts failed to prove that Dr. Fulton’s peremptory challenges were racially discriminatory. The trial judge need only have submitted to the court a basis in fact so as to permit a reasonable judgment to be made that the reason is not contrived. Hatten v. State, 628 So.2d at 299. We will not substitute our judgment for that of the trial judge. This Court has stated:

[Wjhere a trial judge fails to elucidate such a specific explanation for each race neutral reason given, we will not remand the case for that Batson-related purpose alone. This Court is fully capable of balancing the Batson factors in cases such as this one. Continued remand of such cases only wastes the trial court’s limited resources and acts to further delay justice.

Gary v. State, 760 So.2d at 748. The trial judge was not required to state on the record “specific explanations” for accepting race-neutral reasons for striking a juror. Id. The trial judge was obviously frustrated by peremptory strikes following along racial lines made by both parties. However, even in expressing his frustration, Judge Graves impliedly acknowledged that race-neutral reasons were found (by both sides): “voir dire (has become) an exercise in finding race-neutral reasons to justify racially motivated strikes.” The trial judge made a thoughtful, lengthy and sincere effort to properly weigh and examine the reasons offered by both parties. Although the trial court was troubled by a continuing pattern of strikes along racial lines, he clearly believed the reasons stated by Dr. Fulton were not contrived. The trial court’s expression of irritation does not mean that it did not consider the rationales for striking the potential jury members. In fact, here, just the opposite occurred. We hold that there were rational race-neutral reasons given by Dr. Fulton and accepted by the trial court for striking each juror. Overturning a case under these circumstances is exactly the waste of judicial resources that Gary states it is essential and necessary to avoid. The learned trial judge was not clearly erroneous nor was his decision against the overwhelming weight of the evidence. In fact, just the opposite is true. We therefore affirm the trial court.

CONCLUSION

¶ 17. The main issue is whether Dr. Fulton used her peremptory challenges in a racially discriminatory manner. Sudduth v. State, 562 So.2d 67, 71 (Miss.1990). The trial court held that the strikes cited by Dr. Fulton were not racially motivated but were in fact race neutral and thus allowable. We agree and affirm the trial court’s judgment.

¶ 18. AFFIRMED.

PITTMAN, C.J., WALLER, COBB AND CARLSON, JJ„ CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting.

¶ 19. This case should be remanded for further findings with regard to Dr. Fulton’s use of peremptory strikes since the trial judge did not make specific findings as to the validity or invalidity of the challenges. Remand is the only proper disposition since the inferences of racial discrimination have not yet been resolved. For these reasons, I dissent.

¶ 20. As the majority has already pointed out, Batson requires that:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.... Second, if the requisite showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question.... Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). See also Berry v. State, 728 So.2d 568, 572 (Miss.1999); Randall v. State, 716 So.2d 584, 586-90 (Miss.1998); McFarland v. State, 707 So.2d 166, 171-72 (Miss.1997).

¶ 21. It is of no consequence that Dr. Fulton offered race-neutral reasons for the peremptory strikes. Likewise, it is immaterial that the Burnetts failed to rebut the race-neutral reasons stated by Dr. Fulton. The turning point of the proceedings and the deciding factor which warrants remand is the trial judge’s failure to make a specific finding concerning whether the strikes were in fact valid and race-neutral.

¶ 22. In Hatten v. State, 628 So.2d 294, 298 (Miss.1993), we held that the trial judge must make on the record factual determinations of race-neutral reasons in cases involving Batson challenges. How are we to review the trial judge’s findings of fact regarding the proposed race-neutral reasons when no specific findings are made? Here, the trial judge simply voiced a “generalized acceptance” of all of the strikes made. The fact that the race-neutral reasons given by the parties in this case caused the judge to comment on the use of racially motivated strikes combined with his “generalized acceptance” of all of the strikes leaves the record unclear as to the actual motivation for his decision.

¶ 23. Based on the record, the requirements of Batson have not been fulfilled. Further proceedings are necessary for the trial court to make specific findings of fact with regard to the proposed race-neutral reasons offered by Dr. Fulton. For the above stated reasons, I dissent.