author: I «MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Quentin WILEY.
    No. 03-KA-884.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Walter G. Amstutz, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    James A. Williams, Butch Wilson, Gret-na, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   I «MARION F. EDWARDS, Judge.

Defendant/appellant Quentin Wiley appeals his conviction of second degree murder (LSA-R.S.14:30.1) and attempted second degree murder (LSA-R.S.14:27, 14:30.1). This is a companion case to State v. Damans Jackson who was charged in the indictment as a codefendant. Wiley was arraigned and pled not guilty to both charges.

Wiley filed several pre-trial motions, including a Motion to Suppress Confession, Identification, and Physical Evidence. The trial court heard and denied the motion to suppress the confession. Wiley also filed a Motion to Sever Parties, which motion the court heard and took under advisement. That motion was later denied, and subsequently the court heard and denied the motions to suppress evidence and identification.

1 ¡Wiley and Damaris Jackson were jointly tried by a twelve-person jury on April 9, 10, 11 and 12, 2002. Following trial, the jury returned verdicts of guilty as charged on both counts.

Wiley filed a Motion for New Trial, which was denied by the court. He then moved the court to grant the delay in sentencing provided in LSA-C.Cr.P. art. 873. The court denied the motion and sentenced Wiley that day to life imprisonment at hard labor on Count 1, and forty-nine years at hard labor as to Count 2. The court further ordered that the sentences run concurrently with each other and that both sentences be served without benefit of parole, probation, or suspension of sentence.

Wiley filed a Motion to Reconsider Sentence, which was denied. The state filed a habitual offender bill of information, alleging Wiley to be a second felony offender. The state noticed its intention to enhance Wiley’s sentence as to Count 2. Wiley was arraigned as to the habitual offender bill, and denied the state’s allegations. Following a habitual offender hearing, Wiley was found to be a second felony offender. On that day the court vacated Wiley’s original sentence as to Count 2, and re-sentenced him to ninety-nine years at hard labor, without benefit of probation or suspension of sentence. The court ordered that the enhanced sentence run consecutively to the sentence on Count 1. Wiley appeals.

The evidence and testimony adduced at trial was summarized in our opinion in the companion case of Damaris Jackson. However, due to the nature of the errors alleged in the instant appeal, it is necessary to reiterate the evidence here.

FACTS

Kenyatta Francis testified that, on January 24, 2001, he met with Quentin Wiley (a/k/a “Heat”) to discuss the sale of one and one-quarter kilograms of cocaine he (Francis) had in his possession. Wiley told Francis that he knew someone who would buy the cocaine. Francis responded that he didn’t want the buyer to know he was selling drugs, and that Wiley would have to “serve” him. |4That evening, Francis drove a Lexus sports utility vehicle (SUV) to the home of Wiley’s girlfriend in the Woodmere Subdivision in Harvey. He was accompanied by a friend, Corey Charles, who was not involved in the planned transaction. Wiley joined the two men, and they set out to locate the buyer.

Following Wiley’s directions, Francis drove to the Concordia Apartments on Westwood Drive in Marrero. Wiley exited the vehicle, carrying the cocaine in a plastic garbage bag. Wiley walked a short distance and met with a man Francis later identified as defendant, Damaris Jackson. Jackson and Wiley walked toward one of the apartment buildings and disappeared from view, while Francis and Charles waited in the SUV.

When Wiley failed to return, Francis placed a call to his cellular telephone. Francis’ cellular telephone showed that the call was made at 7:11 p.m. He asked Wiley why the transaction was taking so long. Wiley told Francis that the buyer wanted to negotiate some changes in the original agreement. Francis exited the SUV, leaving Charles alone in the vehicle. Jackson approached Francis and told him he would take him to Wiley.

Francis and Jackson walked along the outside of one of the apartment buildings. At this time, Francis did not see Wiley. Francis observed that Jackson flinched nervously each time they passed a doorway. When Francis asked him where they were going, Jackson pointed a gun at him and said, “Give it up.” Francis attempted to reach for the gun, but Jackson fired at him. A bullet went through his shoulder and hit his face, and he fell to the ground. Francis testified that Jackson did not take anything from him after he pulled out the gun. Jackson fled on foot, running toward the truck, and Francis heard two more gunshots. Although he did not see what happened, he assumed Jackson was firing at Corey Charles. He did not, however, have firsthand knowledge of who shot Charles. | r,Francis did not see Wiley with a gun, and did not hear Wiley tell Jackson to shoot him.

A nearby resident called police. Francis told an officer at the scene that Heat had set him up, and that Heat’s real first name was Quentin. Francis was transported to West Jefferson General Hospital, where his injuries were treated. Francis testified that he did not recover the cocaine, nor did he receive any money. Francis also testified that he identified Wiley and Jackson from a photographic lineup. On cross-examination, Francis agreed that in his initial statement to police a week after the shooting, he did not mention that Jackson had told him to “give it up.”

At trial, Deputy Theodore Keelen of the Jefferson Parish Sheriffs Office testified that he went to the 1500 block of West-wood Drive in response to a shooting call. He found Corey Charles lying on the ground, bleeding and gasping for air. He asked Charles what had happened. Charles told him that he was with a guy called Keyana [sic], and then Charles responded that he could not breathe any longer. Deputy Keelen and another officer performed cardiopulmonary resuscitation, and then turned the victim over to the care of emergency medical technicians. Charles was eventually pronounced dead at the scene. The position of bullet casings found at the scene along with Charles’ location when found by police indicated a chase had taken place.

Detective Donald Clogher testified that he interviewed Francis after the shooting, and based on information given by him, Whey was arrested. Subsequently he obtained an arrest warrant for Jackson. Between January 30, 2001 and February 5, 2001, Clogher conducted six tape-recorded interviews with Wiley. Portions of the statements were excised as agreed upon by attorneys, and the tape recordings were all played for the jury at trial. Transcripts of the statements were given to the jury. In the first interview, Wiley stated that he knew | fiKenyatta Francis, and that he knew who Corey Charles was. (In that first interview, Charles was referred to as “Corey Brown”, whose nickname was “Rat”.) Wiley denied having been on West-wood Drive on the night of January 24, 2001, insisting that he never goes to that area.

In his second statement taken approximately two hours later, Wiley said he went to 1500 Westwood Drive with Kenyatta Francis, who drove the Lexus truck, and Corey Charles, on January 24, 2001. He and Charles waited in the vehicle while Kenyatta went into an apartment to “holler at” someone about a “deal” he had worked out earlier. Wiley believed the deal involved a drug transaction. Francis called Wiley from his cell phone and told him to come in. Wiley continued to wait in the truck, and Francis exited the apartment some time later with two unknown men wearing hats. Francis was saying he would not give (the men) their money back, and as the men walked toward the vehicle, one of Francis’ two companions shot him. Wiley did not know which of the men fired on Francis, but he saw them both holding guns. One had a silver gun, and the other a large, black semi-automatic handgun with a laser sight. Wiley jumped out of the truck and ran. Rat also jumped out. Wiley went to the Woodmere area, to the home of his girlfriend, Gretchen, and later left there in his Corvette.

Wiley made his third statement on February 1, 2001 at 11:35 a.m. This statement was substantially the same as the second, except that Wiley identified the shooter as “Marious,” also known as “D.” Wiley said Marious was the one who had the ,9mm gun with a laser sight. He denied any involvement in a drug transaction.

Wiley’s fourth interview took place on February 1, 2001 at 2:45 p.m. Wiley stated that he arranged for Kenyatta Francis and the shooter “Demarious, [sic]” whose last name is either Smith or Jackson, to meet. Damarious wanted to buy a “quarter key” (i.e., kilogram) of cocaine, and Wiley contacted Francis. Wiley ^accompanied Francis to the Concordia Apartments to sell a quarter key to Damarious. When they arrived at the apartment complex, Wiley sent Francis to meet with Damarious. Francis went into an apartment. When he exited the apartment, shots were fired. Wiley saw Damarious and a second, unknown man. Throughout the incident, Wiley never saw the drugs.

Wiley made a fifth statement at 3:40 p.m. on February 1, 2001. He stated that he went with Francis and Rat to meet Damarious. They were in a Lexus truck and planned to sell a quarter key of cocaine to Damarious, as arranged by Wiley. Wiley jumped out of the truck with the cocaine which was packaged in a black bag. He met with Damarious inside of an apartment and gave him the cocaine. Francis called Wiley on his cellular telephone to ask if he was alright. Wiley told Francis that Damarious was not satisfied with the quality and price of the cocaine. Francis said he wanted to see Damarious to discuss the matter. Wiley stayed in the apartment while Damarious went outside, putting a .9 mm handgun in his jacket. A short time later, Wiley heard shooting. When he left the apartment, he saw Da-marious with the .9 mm, with the red laser. Another unidentified man was outside. Wiley ran to a nearby wooded area and later that night, he learned that Francis had been shot.

Wiley made a sixth and final statement on February 5, 2001 at 7:09 p.m. Wiley said Damaris Jackson told him he wanted to buy a quarter key of cocaine. Wiley picked up Jackson, who had a gun obtained from Wiley, and left him at Wood-mere. Jackson was to meet him at the Concordia Apartments, and later, Wiley went with Francis and Corey to the Con-cordia, purportedly to sell cocaine to Jackson. However, when Wiley exited the Lexus SUV with the cocaine, he did not meet with Jackson. Instead, he went to a Nissan Maxima he had parked nearby, and drove it to Woodmere. Wiley then left Woodmere in his Corvette. He took the cocaine with him and hid it. He did not see Jackson after the shootings. | ¡Although he changed his story several times during the statement, Wiley ultimately said that he and Jackson planned a “rip-off’ before the meeting at the Concor-dia Apartments.

Jackson made seven separate tape recorded statements on February 2, 2001. He was questioned by Detective Clogher and Detective Donald Meunier. All of the statements, as altered by agreement of the attorneys, were played at trial, and transcripts of those statements were shown to the jurors. The first interview began at 5:02 p.m. Jackson told Detective Clogher that he lives with his girlfriend, Pamela Willis, at 6565 Benedict Street in Marrero. He spent most of the day with her, and later in the evening went to smoke some “weed” with his brother Jerell, a/a/a “Hoops.” After about 30 minutes, Jackson returned home. He said he did not know Kenyatta Francis, and that he knew Corey Charles only as a friend of his brother’s. Jackson told the detective that he did not go to Westwood Drive on the night of January 24, 2001, had not seen Corey that night, and had no direct knowledge of what had transpired.

Detective Clogher conducted a second tape recorded interview with Jackson at 5:37 p.m. There, Jackson said he heard a rumor that Wiley (“Heat”) was seen leaving the scene of the shooting. He had seen Wiley the Saturday after the incident. A week after the shooting, Wiley contacted him through his (Wiley’s) girlfriend. Wiley wanted to know whether Jackson had heard anything about the shootings.

The third interview began at 6:35 p.m. According to this account, Jackson was riding a bicycle through the Concordia Apartments complex at the time of the shootings. He heard three shots, but he did not see the incident. Jackson saw a black truck pulling into the last driveway. He drove past the area later with his girlfriend, and they saw police.

19Jackson’s fourth interview began at 7:25 p.m. He stated that he was walking toward Westwood Drive on the night of January 24, 2001, when he saw a man who he later learned was Francis walking toward him. Addressing someone else, Francis said, “What’s up dog?” He saw a black truck, with someone sitting inside of it. Jackson then heard gunfire, and ran. He did not see anyone else in the area, and did not see Quentin Wiley there.

Jackson’s fifth statement began at 9:14 p.m. He said he was in the Concordia Apartments complex looking for his girlfriend’s car, as she had allowed a man to borrow it. He saw Heat (Wiley), who said he had business in the area. Wiley asked Jackson to go around the corner and let Francis know that Wiley was there. Jackson went to give Francis the message from Wiley, and as he approached Francis, his (Jackson’s) pants started to slide down. Jackson grabbed the gun that was tucked into his pants and started to put it in his jacket pocket. Francis tried to grab the gun, and it went off. Jackson shot Francis two to three times. Jackson then fled on foot. He saw someone jump out of Francis’ truck and move toward him. Thinking that person had a gun, Jackson fired on him. Jackson stated that his gun is a .40 mm, and that it has a laser sight. He ran home and asked his girlfriend to take him to the St. Thomas Housing Project in New Orleans, where he sold his gun.

A sixth interview began at 10:04 p.m. Jackson said that, on January 24, 2001, Heat told him that he and Francis had some cocaine they were going to sell. Wiley told Jackson to meet him at the Con-cordia Apartments, and he would get a share of the cocaine. Jackson brought his gun to protect himself. When the two met that night, Wiley asked Jackson to go to Francis’ truck and bring Francis to him. Jackson and Francis were walking together, and Francis flinched or jumped. In response, Jackson pulled out his gun and shot Francis. Corey Charles ran from Francis’ truck, taking Jackson by surprise. Thinking Charles might have a gun, |inJackson fired at him. Jackson did not see Wiley after the incident, and in this statement, declared that he sold his gun for two bags of heroin.

The seventh and final interview began at 10:54 p.m. Jackson stated that Wiley) came to his house on January 23, 2001. Wiley told him that he had a “little hustle” and offered Jackson six thousand dollars worth of cocaine to kill Francis. Jackson said he has a bad heroin habit, and Wiley knew he spent any money he got on the drug. Wiley used this to manipulate him.

On the morning of January 24, 2001, Wiley brought Jackson a gun, and brought him to Concordia earlier in the evening. Jackson then left in his girlfriend’s car, and met Wiley at the Concordia Apartments later that evening. Wiley was carrying a bag. Wiley told Jackson to “go call that n-r for me.” Jackson found Francis and told him to accompany him to where Wiley was. The plan called for Jackson to take Francis in back of a building and kill him.

As Jackson led Francis to the appointed spot, he tried to pull the gun from his jacket pocket, and found it was stuck. Francis saw this, and became jumpy. Thinking that Francis might have a gun, Jackson fired his gun, shot Francis twice, and fled on foot. He saw someone in the truck and when Charles opened the door, Jackson shot him. Charles tried to run from Francis’ vehicle as Jackson fibred ten shots at him. Wiley saw Jackson running, and picked him up in a car and took him to his (Jackson’s) girlfriend’s house. Wiley gave him one hundred dollars that night. Jackson saw Wiley days later, at which time Wiley gave him an additional five hundred dollars. Wiley told Jackson he (Wiley) was wanted by the authorities, and that he planned to turn himself in.

Detective Clogher testified that the search of a residence where Jackson had been disclosed .9, .22, .25, and .32 caliber ammunition, but no .40 caliber rounds were found. No information was developed during the investigation to indicate Inthat Wiley shot or robbed either Corey Charles or Francis, and neither the cocaine nor the gun used in the shooting was ever located.

Dr. Susan Garcia, an expert in forensic pathology, testified that she conducted an autopsy on the body of Corey Charles. She identified four bullet entrance wounds. Two of those wounds had corresponding exit wounds. As to the other two, the doctor recovered projectiles from the body. Two bullets entered from the back, and two from the right side. Three of the wounds were not lethal. The fourth bullet injured the victim’s kidney, liver, and right lung. Dr. Garcia testified that organs bleed at a high rate. The liver is particularly vascular, and bleeds profusely when injured. It was the doctor’s opinion that the victim bled to death. Dr. Garcia identified State’s Exhibits 26 and 27 as the projectiles she removed from Corey Charles’ body.

Louise Walzer, an expert in firearms identification and ballistics, examined the spent cartridge casings recovered from the scene and identified them as .40 caliber Speer casings. Walzer also examined State’s Exhibits 26 and 27, the bullets recovered from the victim’s body. She found that they were also .40 caliber. She testified that all of those items were consistent with being fired from a .40 caliber class weapon, and all of the fired cartridge casings came from the same weapon.

Detective Donald Meunier testified that he collected the evidence recovered from the crime scene, which included several .40 caliber cartridge casings. Investigating officers executed several search warrants in connection with the investigation. However, no gun was ever recovered. Among the items recovered in a search of 4232 Lac Couture Drive, Apartment C in Harvey, where defendant was believed to be staying, were numerous live .9 mm cartridges, as well as .22, .25 and .32 caliber cartridges.

11gJackson’s fiancée, Pamela Willis, testified on his behalf. She stated she was with Jackson during the entire day on January 24, 2001. She did not know of any conversation he may have had with Wiley. He used heroin on a daily basis, and that night he used heroin starting at around 6:00 p.m. He left her house that evening in her car. On the morning just prior to his arrest, he smoked marijuana.

SUFFICIENCY OF EVIDENCE

Wiley argues that the evidence at trial was insufficient to prove that he was a principal to either the second degree murder of Corey Charles or the attempted second degree murder of Kenyatta Francis. When issues are raised on appeal as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issue regarding trial errors become moot. For the foregoing reasons, Wiley’s second assignment of error will be addressed first.

The constitutional standard for testing the sufficiency of the evidence, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. When circumstantial evidence is used to prove a case, the trial judge must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to | ^convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438.

On appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020. Rather, the court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id

As to the murder of Corey Charles, from the evidence produced by the state, and from the prosecutors’ closing arguments, the state apparently proceeded under both the theory of felony murder based on armed robbery or attempted armed robbery, and the theory of specific intent. Wiley argues the state did not produce sufficient evidence to prove second degree murder under either theory.

He urges that the state failed to prove he had the specific intent to kill or inflict great bodily harm, as required under LSA-R.S. 14:30.1 A(l). Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Because specific intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances and actions of the accused, as well as the extent and severity of the victim’s injuries. LSA-R.S. 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Only those persons who knowingly participate in planning or executing a crime are principals to that crime. Mere presence and subsequent flight from a 114crime scene is not enough to make one a principal. An individual may be convicted only for the crimes for which he personally has the requisite intent.

Jackson told police that Wiley instructed him to kill Kenyatta, and offered him six thousand dollars worth of cocaine to do so. Jackson stated that Wiley supplied him with a gun. In his own final statement to police, Wiley said he obtained a gun from a friend and gave it to Jackson on January 23, 2001. The gun was a .9 mm with a “red beam on it.” We note that while there is evidence that Wiley intended harm to Francis, there is nothing to indicate that he instructed Jackson to kill or to harm Charles. Jackson admitted to police that he shot Charles in order to facilitate his escape from the scene.

However, under general principles of accessorial liability, “all parties [to a crime] are guilty for deviations from the common plan which are foreseeable consequences of carrying out the plan ... Acting in concert, each man then [becomes] responsible not only for his own acts but for the acts of the other.” Kenyatta Francis testified that he arrived at the Concordia Apartments with Wiley and Charles. Wiley knew that Charles was waiting in Francis’ parked vehicle. It is an obvious inference that Wiley was aware of the likelihood that Charles would witness whatever occurred between Jackson and Francis. Considering that Wiley knew Jackson had a weapon, and in fact admitted to supplying Jackson with the gun, we think it clear that Charles’ injury or death was a foreseeable consequence of the plan Wiley and Jackson devised.

Based on the foregoing, we find that the state proved Wiley had the requisite intent to kill or inflict great bodily harm, and the evidence was sufficient to support specific intent murder.

|1RTo prove the attempted second degree murder of Kenyatta Francis, the state was required to prove specific intent to kill and the commission of an overt act in furtherance of that goal. Wiley asserts that the state failed to prove he had the specific intent to kill Francis.

He correctly urges that the only direct proof of his intent to kill Francis was Jackson’s last statement, in which he said Wiley offered him six thousand dollars worth of cocaine to kill Francis. Wiley argues that Jackson’s statement is unreliable.

The reviewing court is not permitted ‘“to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.’ ” “It is not the function of an appellate court to assess credibility or re-weigh the evidence.” The jury apparently put some credence in Jackson’s admission that he shot Kenyatta Francis after Wiley instructed him to do so. Jackson’s statement is supported by Wiley’s own admission that he obtained a gun for Jackson, and that he (Wiley) took Francis’ cocaine.

We find that all of the evidence, taken together, was sufficient to prove attempted second degree murder.

Under felony murder, the state must prove the commission of the underlying felony or the attempt thereof. A defendant need not possess specific intent to kill or inflict great bodily harm to be a principal to a second-degree felony murder.

The state sought to prove Charles was killed during the commission of an armed robbery. Wiley argues that there was no rehable evidence to support the state’s assertion that he and Jackson planned an armed robbery, or that an armed robbery occurred. Wiley cites Detective Clogher’s testimony that he did not | ^charge him with the robbery of Kenyatta Francis. Moreover, Deputy Keelen, the first officer at the scene, testified there was no evidence that Corey Charles had been robbed.

In determining whether there was a felony murder, or attempted felony murder, the pertinent questions are whether Wiley was a principal to armed robbery or attempted armed robbery, and if so, whether Corey Charles was killed during the commission of that armed robbery. Armed robbery is defined by LSA-R.S. 14:64 as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation, while armed with a dangerous weapon.” LSA-R.S. 14:27(A) provides:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

There was considerable evidence to show there was a planned cocaine heist. Wiley told police in his sixth statement that, prior to the meeting at the Concordia Apartments, he and Jackson had formulated a plan to “rip off’ Francis’ cocaine. Jackson suggested that they “jack this n-r,” meaning Jackson intended to rob Francis of his cocaine. Wiley told Jackson that was a bad idea, and Jackson responded, “[M]an, f — • that.” Under Jackson’s scenario, he and Wiley would share the cocaine. However, Wiley cheated Jackson by taking all of the cocaine.

Jackson’s story was that Wiley enlisted him to kill Francis in exchange for a share of Francis’ cocaine. Both Jackson and Wiley told police that Wiley supplied Jackson with a gun.

Kenyatta Francis testified that he gave Wiley cocaine with the understanding that Wiley would find a buyer, and that he (Francis) would receive the proceeds of the sale. When they arrived at the Concordia Apartments, Wiley left the vehicle |17and met with Jackson. Francis never saw Wiley or the cocaine again, nor did he receive payment for the drugs.

Francis testified that when he went with Jackson to discuss the cocaine transaction, Jackson pointed a gun at him and told him to “give it up.” Francis believed Jackson intended to rob him. That act alone is sufficient to constitute an attempted armed robbery.

Although Francis willingly gave his cocaine to Wiley the evidence showed Wiley and Jackson used “force and intimidation” (i.e., the shooting) in order to keep it. The Louisiana Supreme Court has held that a robbery is committed, not only if the perpetrator uses force or intimidation to “take” possession of the property, but also if force or intimidation is used to retain possession immediately after the taking, or to carry away the property, or to facilitate escape.

There was no evidence at trial that Wiley and Jackson attempted to rob Charles, although they clearly intended and attempted the robbery of Francis. However, Charles’ murder is connected to the robbery insofar as Jackson shot Charles to facilitate his escape. It appears from Jackson’s seventh taped statement that Jackson thought it necessary to shoot Charles in order to keep him from shooting him or reporting his attack on Francis to authorities.

The Louisiana Supreme Court has affirmed a defendant’s second degree felony murder conviction, which was based on an underlying burglary offense. The court held:

In felony murder, “the mens rea of the underlying felony [provides] the malice necessary to transform an unintended homicide into a murder.” ... Moreover, under general principles of acces-sorial liability, see La.R.S. 14:24, “all parties [to a crime] are guilty for deviations from the common plan which are the foreseeable consequences of carrying out the plan.”... (“Acting in concert, each man then became responsible not only for his own acts but for the acts of the other.”). The risk that an unauthorized entry of an inhabited dwelling may escalate into violence and death is a foreseeable consequence of burglary which every party to the 11soffense must accept no matter what he or she actually intended. See State v. Cotton, 341 So.2d 362, 364 (La.1976) (if the co-perpetrator in an aggravated burglary was guilty of second degree murder because he shot and killed the victim, then Cotton, “as a principal [in the burglary] was likewise guilty of the same offense.”). As we observed in State v. Lozier, 375 So.2d 1333, 1337 (La.1979), “[b]urglary laws are not designed primarily to protect the inhabitant from unlawful trespass and/or the intended crime, but to forestall the germination of a situation dangerous to the personal safety of the occupants.... In the archetypal burglary an occupant of a dwelling is startled by an intruder who may inflict serious harm on the occupant in his attempt to commit the crime or to escape from the house.” A homicide committed during flight from an aggravated burglary, or to facilitate flight from the scene, therefore constitutes felony murder. State v. Anthony, 427 So.2d 1155, 1159 (La.1983).

The Fourth Circuit has applied the principles in Smith to a felony murder based on armed robbery, finding: “[I]t is foreseeable that an armed robbery victim may be shot during the perpetration of an armed robbery ...

Because the evidence was sufficient to prove that Jackson attempted to kill Francis and did kill Charles during the commission of an armed robbery, which robbery was planned with Wiley, the state proved that Wiley was guilty of second degree felony murder.

MOTION TO SEVER AND ADMISSION OF CO-DEFENDANT’S STATEMENTS

Wiley also urges error in the trial court’s rulings denying the motion to sever the trial of the defendants, in failing to deny the admission of his co-defendant’s statements into evidence, and failing to grant the mistrial motion, which errors resulted in a violation of Jackson’s Confrontation Clause rights.

Both Wiley and Jackson filed motions to suppress their confessions, which motions were denied. Wiley filed a Motion to Sever Parties, arguing he should receive a separate trial because, his own and Jackson’s defenses were mutually antagonistic. The trial court denied the severance motion.

hsWiley complains that the trial court deprived him of his Sixth Amendment right of confrontation by allowing the admission of inculpatory statements made by his co-defendant, Jackson, when he (Wiley) did not have the opportunity to cross-examine Wiley.

On the second day of trial, out of the jury’s presence, the attorneys representing Jackson and Wiley informed the court that their clients would not be testifying. Wiley’s counsel stated that, if Jackson’s police statements were admitted in evidence without his being given an opportunity to cross-examine Jackson, he would move for a mistrial.

By agreement of the parties, Wiley’s and Jackson’s statements were redacted to eliminate some potentially prejudicial material. Nothing was redacted from Wiley’s first statement. Two pages were removed from each of statements two and four. A sentence or phrase was removed from each of statements three, five, and six. The parties agreed that Jackson’s first statement would be offered without any changes. Approximately three lines were removed from Jackson’s second statement. The parties agreed to remove nothing from the third, fourth, and fifth statements. A reference to first degree murder was ordered removed from the sixth statement. Wiley’s attorney moved the court to remove from Jackson’s seventh statement any reference to him that would tend to inculpate Wiley. The record is not clear as to what, if anything, was eliminated from that statement prior to its admission, but it is clear that all references to Wiley were not removed.

When the state offered the tapes and transcripts, the defense objected to their admission in evidence. The objections were overruled. At the conclusion of the state’s case, both Jackson and Wiley informed the court they would assert their Fifth Amendment rights if they were called to testify. Wiley moved for a mistrial on grounds that Jackson had implicated him in his seventh statement, and that he bnwould be deprived of his confrontation rights if he were not given the opportunity to cross-examine. Jackson adopted Wiley’s motion. The court denied a mistrial.

Wiley argues that the only evidence at trial that directly inculpated him was Jackson’s seventh statement. He further argues that the admission of the statement constitutes reversible error, and moves this Court to vacate his convictions and remand the case for a new trial.

La.C.Cr.P. art. 704 provides that jointly indicted defendants shall be tried jointly unless the state elects to try them separately, or the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

Whether justice requires a severance must be determined by the facts of each case. State v. Prudholm, 446 So.2d 729, 741 (La.1984); State v. Foret, 96-281 (La.App. 5th Cir.11/14/96), 685 So.2d 210, 224. A defendant is not entitled to a severance as a matter of right, but the decision is one resting within the sound discretion of the trial court. Prudholm, 446 So.2d at 741; State v. Cedrington, 98-253 (La.App. 5th Cir.12/16/98), 725 So.2d 565, 577, writs denied, 99-190 La.00-205 [(La.6/4/99)], 743 So.2d 1249 and 99-431 (La.6/25/99), 745 So.2d 1182. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. Prudholm, 446 So.2d at 741; Cedrington, 725 So.2d at 577.
A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the state. Prudholm, 446 So.2d at 741; Cedrington, 725 So.2d at 577. The Defendant bears the burden of proof in such a motion. Mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance. Prudholm, 446 So.2d at 741; Foret, 685 So.2d at 224. Furthermore, the fact that each defendant has pointed a finger at the other does not make defenses automatically antagonistic. Prejudice must be shown if defendants are to receive separate trials. State v. Williams, 416 So.2d 914, 916 (La.1982); Cedrington, 725 So.2d at 577.

We note that in ordering severance of defendants, our Supreme Court has cautioned:

Prejudice may occur in a joint trial “when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant.” Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1933)[(1993)] (citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)). The Supreme Court has not yet delineated those circumstances under which a codefendant’s statement may be directly admissible against the defendant. It has made clear that such statements are presumptively unreliable to the extent that they incriminate the defendant. Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), and that they remain inadmissible at a joint trial even when the defendant has given his own “interlocking” statement. See Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987) (“[Wjhere a non-testifying co-defendant’s confession incriminating the defendant is not directly admissible against the defendant ... the Confrontation Clause bars its admission at their joint trial_”).

The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to confront the witnesses against him. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination.

The basis for not admitting the statement of a co-defendant which is sufficiently against his penal interest is the longstanding judicial perception that custodial confessions of non-testifying, unavailable co-defendants are inherently suspect and presumptively unreliable as substantive evidence against defendant.

However, the Supreme Court made it clear in Lee that the presumption of unreliability is not absolute. In a critical passage, the Court observed that “[i]f those portions of the co-defendant’s purportedly ‘interlocking’ statement which bear to any significant degree on the defendant’s participation in the crime are not thoroughly substantiated by the defendant’s own confession, the admission of the statement poses too serious a threat to the accuracy of the verdict to be countenanced by the Sixth Amendment.” Lee, 476 U.S. at 545, 106 S.Ct. 2056. In Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), the Supreme Court addressed the admissibility of the confession of a co-defendant in the context of the hearsay exception provided by F.R. Evid. 804(b)(3) for declarations against penal interest. Williamson’s co-defendant was called by the state, but refused to testify at trial, and the prosecution was allowed to admit his entire confession. The Supreme Court held that “the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpato-ry.” Id. at 600-601, 114 S.Ct. 2431. Accordingly, while some parts of a co-defendant’s confession may be admissible at a joint trial, under Williamson, the ^confession must be evaluated, and only those portions which are self-inculpatory may be admitted. Id.

Under the law and jurisprudence presented above, it appears that Jackson’s seventh statement implicating Wiley in a murder plot was inadmissible. However, the jury was instructed that although the defendants were being tried together, they were to consider the evidence against each individually. The jury was further instructed on the law of principals. In the present case, Wiley admitted that at the Concordia Apartments, it was agreed there would be a “rip off’ of the cocaine, and Wiley further admitted he had earlier supplied the weapon to Jackson. Considering these admissions, and completely disregarding Jackson’s implication of a murder plot, the jury could reasonably have concluded that Wiley was a principal to the armed robbery of Francis. Further, there was sufficient evidence to prove that Jackson had the requisite intent to kill or inflict great bodily harm. Under the principle of accessorial liability, it was reasonable to conclude that Wiley was guilty of the murder. The risk that an armed robbery, or any robbery, may escalate into violence and death is clearly a foreseeable consequence which every party to the offense must accept no matter the intent.

As to the requirement of specific intent in the attempted murder of Francis, disregarding Jackson’s statement, we note that in order to support a conviction for attempted murder, only specific intent to kill is sufficient. In State v. Mitchell, supra, the defendant was found guilty of attempted first degree murder where he gave a gun to the shooter, telling him if he was not going to use it, he should return the gun to the defendant. The defendant urged that the jury could not have reasonably negated the hypothesis that he only intended the shooter to fire the gun into the air. The Supreme Court found there was sufficient evidence to prove the necessary intent. In so doing, it was held that the reviewing court must assure that Lsthe jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt.

The jury is the ultimate factfinder of “whether a defendant proved his condition and whether the state negated that defense.” The reviewing court “must not impinge on the jury’s factfinding prerogative in a criminal case except to the extent necessary to guarantee constitutional due process.” ... (citing State v. McKeever, 407 So.2d 662, 665 (La.1981)). Therefore, in order for a reviewing court to reverse a conviction based on an alternative hypothesis of innocence, the court must find that the jury could not have negated a potential alternative hypothesis for the defendant’s action because specific intent to kill was not proven.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. In the present case, Francis testified that he saw Wiley meet with Jackson at the Concordia Apartments and walk off together. Later, in response to a call placed to Wiley, Jackson came back to take Francis to Wiley. Although Wiley stated he did not meet with Jackson that night, over the course of his several ever-changing statements, Wiley corroborated this testimony, saying that he met with Jackson, gave him the cocaine, and then sent Jackson, to whom he had given a gun, to meet with Francis. We find from this evidence that the jury could have reasonably concluded that Wiley had the requisite intent.

Moreover, from the conflicting voluntary statements Wiley gave to the police, an inference of a “guilty mind” can be drawn. A finding of purposeful misrepresentation reasonably raises the inference of a “guilty mind”, just as in the case of “flight” following an offense or the case of a material misrepresentation of facts by a defendant following an offense. “Lying” has been recognized as indicative of an awareness of wrongdoing. Because of the untruthful statements concerning the shooting, it would not have been unreasonable for the jury to infer that Wiley was guilty of the crime charged.

| ¡^Confrontation errors are subject to a harmless error analysis. In the present matter, any error in the admission of Jackson’s statement was harmless. Further, for these same reasons, the defenses are not mutually antagonistic, as Wiley’s culpability in the armed robbery was supported by his own statements. Under these circumstances, a severance was not required, and there was thus no basis for a mistrial. This assignment of error is without merit.

PATENT ERROR

The record was reviewed for errors patent.

LSA-C.Cr.P. art. 930.8 provides that a defendant has two years from the date “the judgment of conviction and sentence become final” within which to file a post-conviction relief application. The article requires that the trial judge inform a defendant of the prescriptive period at the time of sentencing. In the instant case, the judge instructed Wiley that he would have “two years from today’s date to file post conviction relief.” (Emphasis supplied). We therefore order the trial court to supply Wiley with written notice of the prescriptive period under Article 930.8, and to file written proof of such notice in the record.

The trial judge imposed Wiley’s habitual offender sentence without benefit of probation or suspension of sentence. However, the underlying statute, LSA-R.S. 14:30.1, requires that a sentence for attempted second degree murder be served without benefit of parole, probation, or suspension of sentence. When a defendant is sentenced as a habitual offender, “ ‘[t]he penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.’ ”12SPursuant to LSA-R.S. 15:301.1, the sentence is deemed to contain the required restriction.

For the foregoing reasons, the conviction is affirmed. The matter is remanded for purposes stated hereinabove.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . State v. Damaris Jackson, 03-KA-0883 (La.App. 5th Cir. 4/27/04), 880 So.2d 841, 2004 WL 895833.

      . State v. George, 95-0110, p. 6 (La.10/16/95), 661 So.2d 975, 978; State v. Conner, 02-363, p. 7 (La.App. 5 Cir. 11/13/02), 833 So.2d 396, 401, writ denied, 02-3064 (La.4/25/03), 842 So.2d 396.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

      . State v. Williams, supra.

      . State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78.

      . State v. Keating, 00-51 (La.App. 5 Cir. 10/18/00), 772 So.2d 740, 743, writ denied, 00-3150 (La.10/12/01), 799 So.2d 494.

      . State v. Wright, 01-0322, p. 9 (La.12/4/02), 834 So.2d 974, 983, cert. denied, - U.S. -, 124 S.Ct. 82, 157 L.Ed.2d 62 (2003); State v. Terrick, 03-515, p. 7 (La.App. 5 Cir. 9/30/03), 857 So.2d 1153, 1157.

      . State v. Smith, 98-2078, p. 7 (La.10/29/99), 748 So.2d 1139, 1143.

      . State v. Girod, 94-853, pp. 5-6 (La.App. 5 Cir. 3/15/95), 653 So.2d 664, 668.

      . State v. Mercantel, 00-1629, p. 9 (La.4/3/02), 815 So.2d 50, 56 (quoting State v. Mussall, 523 So.2d 1305, 1311 (1988)).

      . State v. Mercantel, supra (citation omitted).

      . State v. Hill, 98-1087, (La.App. 5 Cir. 8/31/99), 742 So.2d 690, 696, writ denied, 99-2848 (La.3/24/00), 758 So.2d 147.

      . See State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 186-187.

      . State v. Meyers, 620 So.2d 1160, 1163 (La.1993).

      . State v. Smith, supra.

      . State v. Wix, 02-1493 (La.App. 4 Cir.1/15/03), 838 So.2d 41, writ denied, 03-0678 (La.10/17/03), 855 So.2d 756.

      . See State v. Damaris Jackson, supra.

      . State v. Quest, 00-205 (La.App. 5 Cir.10/18/00), 772 So.2d 772, writ denied 00-3137 (La.11/2/01), 800 So.2d 866.

      . State v. Johnson, 96-0959 (La.6/28/96), 675 So.2d 1098.

        . Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Jones, 02-267, p. 4 (La.App. 5 Cir. 7/30/02), 824 So.2d 514, 516, writ denied, 02-2518 (La.6/27/03), 847 So.2d 1254.

        . State v. Taylor, 2001-1638 (La.1/14/03), 838 So.2d 729, citing Lee v. Illinois, supra; Bruton v. United States, supra; Douglas v. Alabama, 380 U.S. 415, 85 S.Ct 1074, 13 L.Ed.2d 934 (1965).

      . See State v. Damaris Jackson, supra.

      . State v. Hongo, 96-2060, p. 2 (La.12/2/97), 706 So.2d 419, 420; State v. Mitchell, 1999-3342 (La.10/17/00), 772 So.2d 78.

      . Id.

      . See State v. Mitchell, supra.

      . See State v. Mitchell supra, citing State v. Davenport, 445 So.2d 1190 (La.1984).

      . Id.

      . See State v. Williams, 2002-1406 (La.4/9/03), 844 So.2d 832; State v. Robinson, 2001-0273 (La.5/17/02), 817 So.2d 1131; State v. Smith, supra.

      . LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . See, State v. Stelly, 98-578, p. 6 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.

      . State v. Fletcher, 03-60, p. 13 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213, 1222, (quoting State v. Bruins, 407 So.2d 685, 687 (La.1981)).

        . State v. Rogers, 03-276, pp. 11-12 (La.App. 5 Cir. 6/19/03), 850 So.2d 838, 845, writ denied, 03-2137 (La.1/30/04), 865 So.2d 73.


source: Caselaw Access Project

author: hTHIBODEAUX, Chief Judge. B SCOFIELD, Judge ,

license: Public Domain

text:
    SABINE MANUFACTURING, INC. v. SABINE PARISH POLICE JURY & Sheriff Guffey Pattison.
    Nos. 04-80.
    Court of Appeal of Louisiana, Third Circuit.
    June 23, 2004.
    Honorable Don M. Burkett, District Attorney, Many, LA, for Defendant/Appellant, Sabine Parish Police Jury & Sheriff Guffey Pattison.
    Donald G. Kelly, Kelly, Townsend & Thomas, Natchitoches, LA, for Plaintiff/Appellee, Sabine Manufacturing, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and JOHN B. SCOFIELD , Judges.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   hTHIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Sabine Parish Police Jury v. Commissioner of Alcohol & Tobacco Control, 04-78 (La.App. 3 Cir. 6/23/04), 879 So.2d 349, the judgment of the trial court is affirmed. Costs of this appeal, in the amount of $1,394.28, are assessed equally to appellants, Sabine Parish Police Jury and Sheriff Guffey Pattison.

AFFIRMED.

SCOFIELD, J., dissents and assigns written reasons.

B SCOFIELD, Judge ,

dissenting.

I respectfully disagree with the majority opinion affirming the trial court. I am of the opinion that in rendering its decision, the majority failed to adequately address the intent of the Louisiana legislature in enacting La.R.S. 26:583, as well as the intent of the Sabine Parish Police Jury in creating election districts.

The majority, as did the trial court, relies heavily upon the decision in King v. Caddo Parish Com’n, 31,098 (La.App. 2 Cir. 12/22/98), 727 So.2d 545. The King case has facts very similar to the case at hand, ie., a portion of a previously established “dry” ward was encompassed within a later created election district. The legal issue in King was whether the portion of the ward encompassed within the election district retained its dry status, the legal focus, as it is in this case, being on La.R.S. 26:583.

Initially, I would observe that there is a significant factual difference between this case and the King case. Central to the court’s decision in King is the court’s opinion that the ward at issue was no longer in existence, no longer a viable entity. In its decision, the court repeatedly refers to “old Ward Three”, clearly implying that the ward was a thing of the past In the case at hand there is no evidence in the record that Ward Three in Sabine Parish was abolished. To the contrary, the undisputed evidence is that Ward Three is still very much in existence, having multiple, ongoing political purposes. Ronald Busby, Secretary-Treasurer of thel2Sabine Parish Police Jury, testified that Ward Three is still the basis for establishing and assessing taxes for road districts and fire protection districts as well as establishing boundaries for stock laws.

The King court cites with favor the case of Stephens v. Madison Parish Police Jury, 463 So.2d 609(La.App. 2 Cir.1984) In Stephens, however, the court found that: “[a]s Old Ward 8 no longer served any political purpose, it was effectively abolished.” Id. at 611. Consequently, both King and Stephens relied heavily on the assumption that the respective wards in each case had been abolished or no longer served any political purpose. The undisputed evidence here is that Ward Three in Sabine Parish still serves several political functions.

While the factual differences between this case and King are noteworthy, this case should turn on issues of law. In short, the decision should be based upon the meaning of La.R.S. 26:523. Did the legislature really intend that the creation of an election district for one purpose automatically annuls the longstanding vote of the people on a matter having a different purpose? I do not think so. With due deference to the majority, as well as the majority in King, I am of the opinion that they did not sufficiently analyze the controlling statute. Section A of the La.R.S. 26:583 provides as follows:

A. When a portion of a ward, election district, or municipality is annexed or made a part of mother ward, election district, municipality, or city-parish government, the portion annexed or made a part of shall take on the legal sales characteristics, as provided in this Chapter, of the ward, election district, municipality, or city-parish government to which it is annexed or made a part of. (Emphasis ours.)

For the purpose of the present analysis, the key word in Section A is “another.” I am of the opinion that in this context the word “another” means “an additional | ¡¡person or thing of the same type as already mentioned” or “one ... of the same kind.” More specifically, the statute is saying that the provisions of the act apply when “a portion of a ward ... is annexed and made part of another ward ...” Consistent with this usage of the word, a portion of a ward could not be made a portion of “another” election district. A ward and an election district are dissimilar entities. When referring to a ward, the only entity that would be one of the same type as already mentioned or of the same kind would be another ward.

To read the statute otherwise would be like saying a ward can become a part of “another” city, or an apple can be made part of “another” orange. If the legislature had intended to interpret the statute as the majority has done here, it could have phrased the pertinent part of Section A as follows; “When a portion of a ward, election district, or municipality is annexed or made part of either a ward, election district, municipality, or city-parish government ...” The legislature did not so phrase Section 583, choosing rather to use the word “another” instead of “either a.” This court must give words of laws their generally prevailing meaning.

The starting point for the interpretation of any statute is the language of the law itself. Ginn v. Woman’s Hospital Foundation, Inc., 02-1913, p. 9 (La.4/9/03), 842 So.2d 338, 344; Rougeau v. Hyundai Motor America, 01-1182, p. 5 (La.1/15/02), 805 So.2d 147, 151. Special rules for interpreting a statute (such as La. R.S. 9:2798.1) have been enacted by the legislative branch and are found in La. R.S. 1:1 et seq. Louisiana Revised Statute 1:3 provides, in pertinent part, that “[w]ords and phrases shall be read with their context and shall be 1 ¿construed according to the common and approved usage of the language” and the “word ‘shall’ is mandatory.” (Emphasis added.) Louisiana Revised Statute 1:4 provided that “[w]hen the wording of a Section [of a statute] is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” The legislative branch also has provided general rules for interpreting laws in La. C.C. art. 9 et seq. See, in particular, La. C.C. arts. 9 and 11. We are bound by the language of a relevant law. Allen v. State, through the Ernest N. Morial-New Orleans Exhibition Hall Authority, 02-1072, p. 12 (La.4/9/03), 842 So.2d 373, 381.

Gregor v. Argenot Great Cent. Ins. Co., 02-1138, pp. 6-7 (La.5/20/03), 851 So.2d 959, 964 (footnote omitted).

The interpretation that I am giving Section A of the statute is consistent with the provisions of Section B of the statute which provides that: “it [is] the intention of this Chapter that the sale of beverages covered by this Title be permitted or prohibited only in an entire ward, election district, or incorporated municipality and not in any portion thereof.” Section B is saying, as it pertains to Ward Three, that either all of that ward must be wet or none of it is wet. The majority does not address what happens to that part of Ward Three which was not included in Election District Six. Does it remain dry? To allow part of Ward Three to remain dry while mandating that the remainder of the ward become wet, in spite of the will of the voters of that ward as expressed in the local option election, clearly contravenes Section B of La.R.S. 26:583. Ward Three apparently ends up being part wet and part dry.

As to the sanctity given a vote of the people themselves, as compared to a vote of a legislative body such as a police jury, the court in Hughes v. Parish Council of Parish of East Baton Rouge, 48 So.2d 823, 832 (La.App. 1 Cir.1950) stated:

It is hardly conceivable that the Legislature of the State of Louisiana would grant to the people of the various political subdivisions, a right by ballot to create dry territories and at the same time, vest in the Police Jury a right to wipe out this exercise of the ballot by the simple procedure of redistricting the parish. The redistricting of the ward lines |Rfor the Parish of East Baton Rouge was done without any mention whatsoever as to the local option question and we do not think that the Police Jury of a parish can take it upon itself and negative a vote on local option by exercising its right granted it by changing the rearranging ward lines. In a case of this kind, we do not think that a prohibitory law such as that in question here, voted upon and adopted by a ward can be repealed or defeated in its operation by any subsequent act of the governing authorities of the Parish of East Baton Rouge, by a simple change of boundaries of an election district or ward. We say this especially in view of the absence of any election held subsequent to the election might negative the special referendum of the original Ward Four in 1937, which then held declaring said ward ‘dry.’

I do not believe the legislature intended that the direct vote of the people of Ward Three could be so easily cast aside as the decision of the majority now mandates.

The election districts in question were created by a simple ordinance of the Sabine Parish Police Jury. The fact that the Police Jury may have been motivated by federal legislation to pass the ordinance, does not alter a whit that the election districts are creatures solely of the Police Jury. The one purpose of the Police Jury was to create districts from which members of the legislative arm of the Parish, the Police Jury, would be elected. In passing the ordinance, the Police Jury had no intention of altering judicial districts, school board districts, fire districts, road districts, certain taxing districts, et cetera. The Police Jury certainly had no intention of abolishing the wards in that parish, nor did the Police Jury intend to abolish or alter in any way the dry status of Ward Three. To the contrary, the Police Jury’s keen intent to preserve the dry status of Ward Three could not be more clearly demonstrated than by the Police Jury’s vigorous defense of the vote of the people of Ward Three in these very law suits.

The law plainly requires courts to give great weight to the interpretation given an ordinance by the governing body which had enacted it. Kneipp v. City of Shreveport, 550 So.2d 748 (La.App. 2 Cir.1989); Little Giant Food Stores, Inc. v. State, Dept. of Public Safety through Com’r of Alcoholic Beverage Control, 416 So.2d 128 (La.App. 2 Cir.1982); Huppenbauer v. Kissinger, 254 So.2d 636 (La.App. 4 Cir.1971). Here, the majority not only fails to give great weight to the Sabine Parish Police Jury’s interpretation of its own ordinance creating the election districts, it seems to give it no weight at all.

I am of the opinion that the majority decision also runs contrary to other pertinent statutes of the legislature. For instance, in the Alcoholic Beverage Control Law, particularly La. R.S. 26:81, the legislature provides, in pertinent part that:

A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state.
B. (1) No permit shall be issued by the commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.

Additionally, another section of the Alcoholic Beverage Control Law, La.R.S. 26:273(A)(1) provides that:

A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state.
B. (1) No permit shall be issued by the commissioner or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.

Both of these statutory provisions seem to clearly prohibit the Commissioner of Alcohol & Tobacco Control from issuing the permits in question.

For the foregoing reasons, I would reverse the judgment of the trial and, therefore, I respectfully dissent from the opinion of the majority.

      . Two judges of the five judge panel in King dissented with written reasons. Their dissent takes issue with the majority's assumption that Ward three was no longer in existence, saying: “Here, the record does not contain evidence to establish that Ward Three has ceased to serve a political purpose, that ward has been abolished by action of the Parish Commission.’’ King, 727 at 550.

      . Oxford American Dictionary.2002.

      . Webster's Third New International Dictionary, Unabridged. 1993.

      . The appellants' attempt to introduce minutes of the house judiciary committee relative to the 1997 amendment of La.R.S. 26:583 was denied by the trial court. That amendment simply made the act applicable to election districts, supplementing its original application to only wards and municipalities. The proffered committee minutes recited a proponent of the amendment as saying: "The proposed legislation would correct the problem in some areas that no longer have wards hut have election districts.” (Emphasis added) While this proffered evidence is enlightening, it is not pivotal to this analysis.


author: J^WALTER J. ROTHSCHILD, Judge.

text:
    AQUA POOL RENOVATIONS, INC. v. PARADISE MANOR COMMUNITY CLUB, INC.
    No. 04-CA-119.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2004.

      Stephen D. Marx, Metairie, LA, for Plaintiff/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   J^WALTER J. ROTHSCHILD, Judge.

Aqua Pool Renovations, Inc. (“Aqua Pool”) is a local company that is in the business of renovating residential and commercial swimming pools. The two owners of Aqua Pool are Terry Lonatro and Johnny Daniel. Paradise Manor Community Club, Inc. (“Paradise Manor”) is a recreational club located in River Ridge, Louisiana.

On March 20, 2001, Aqua Pool and Paradise Manor entered into a written contract which provided that Aqua Pool would perform certain pool renovations at Paradise Manor for the price of $50,747. The contract consists of six pages prepared by Aqua Pool, with each page discussing a different phase of the project and its cost, and 3 pages prepared by Paradise Manor’s attorney.

Barry Breaux, who was a member of Paradise Manor’s board of directors in 2001, was authorized by the board to sign the contract after discussing the contract with the board and receiving their approval. Mr. Breaux also oversaw the renovation project for Paradise Manor. The contract was signed by Terry Lonatro on behalf of Aqua Pool. According to the contract, the renovations were to be completed by May 3, 2001 or Aqua Pool would be penalized $500 per day. The contract also provides that all change orders must be in writing.

According to Aqua Pool, several unanticipated issues and problems arose during the project, and Mr. Breaux authorized Aqua Pool to perform additional work to resolve these problems, knowing that this work would be done at ^additional cost to Paradise Manor. Paradise Manor asserts that Mr. Breaux did not authorize Aqua Pool to perform additional work outside the terms of the original contract, and it did not have the money to pay for any extra work.

On May 3, 2001, which was the day that the renovations were to be completed, Mr. Breaux gave Mr. Lonatro a list of items which he believed were required to be done before the contract was satisfied. Paradise Manor withheld $3,000 of the contract price from Aqua Pool, because they believed that all of the work had not yet been completed. Aqua Pool disagreed and believed that the work required under the contract was finished.

On November 29, 2001, Aqua Pool filed suit against Paradise Manor in the 24th Judicial District Court, asserting that Paradise Manor owed it $8,832, which includes $3,000 of the original contract price, $3,974 for additional labor and supplies authorized by Mr. Breaux, and $1,858 for additional equipment. In its petition, Aqua Pool also asserts that it is entitled to attorney fees from Paradise Manor, pursuant to the contract between the parties.

On January 4, 2002, Paradise Manor filed an answer, stating that it did not authorize any additional work and that Aqua Pool was not entitled to the final $3,000 of the contract price, because it breached the contract by failing to complete the work by the contract deadline. Paradise Manor also filed a reconventional demand, asserting that Aqua Pool did not remove all of the debris and equipment on time, did not complete the job to Paradise Manor’s satisfaction, did not complete the “punch list” items, did not obtain written change orders as required by the contract, and did not honor its one-year warranty against defects. Accordingly, Paradise Manor argues that Aqua Pool is liable under the contract for penalties of $500 per day since the contractual deadline of May 3, 2001 and for the additional costs of completing the renovations that were not properly done by Aqua Pool, including repairing and replacing tiles on the bottom of the pool and |4fixing cracks in the concrete decking that were caused by Aqua Pool’s failure to properly place expansion joints.

Trial of this matter was held on February 10,11, and 13, 2003. On May 27, 2003, the trial judge signed a judgment 1) awarding $1,920.00 to Aqua Pool; 2) ordering a representative from each party mutually to select an unrelated third party to inspect the pool and determine whether it has an air leak and, if so, whether or not it was caused by Aqua Pool during the pool renovations and, if so, the cost to repair the leak; 3) denying Aqua Pool’s request for contractual attorney fees; and 4) ordering each party to bear their own costs. It is from this judgment that Aqua Pool appeals. We note that Paradise Man- or did not appeal any portion of the judgment and has not filed a brief with this Court.

DISCUSSION

In its first assignment of error, Aqua Pool argues that the trial court erred in finding that the “extras” were not authorized. Aqua Pool agrees that the trial court correctly found that the extras were not included in the original contract. However, it argues that the additional work that they performed was done pursuant to verbal modifications to the contract, which were approved by Mr. Breaux.

A court of appeal may not set aside factual findings of the trial court unless they are manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Albert K. Newlin, Inc. v. Morris, 00-1564 (La.App. 3 Cir. 2/28/01), 782 So.2d 1116, 1119, writ denied, 01-875 (La.5/25/01), 793 So.2d 164. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether his conclusion was a reasonable one. Schexnayder v. Exxon Pipeline Co., 01-1236 (La.App. 5 Cir. 3/13/02), 815 So.2d 156, 159.

|KAt trial, John Jorgensen, who was the president of Paradise Manor in 2001, testified that the board approved Aqua Pool’s bid for the renovation project and Paradise Manor got a loan for that amount, but there was no money in the budget for additional work. Mr. Jorgensen stated that the board designated Mr. Breaux to run this project, but the board had to approve any additional work or changes. He believes that the board would have agreed to some of the extra work if they had been asked. However, because no extras were approved by the board and no written change orders were signed, he does not believe that Aqua Pool is entitled to payment for the additional work. Further, he believes that Aqua Pool decided to seek payment for extras only because the relationship between Aqua Pool and Paradise Manor went bad.

Terry Lonatro, a principal of Aqua Pool, testified that no written change orders were signed, but Mr. Breaux authorized all of the additional work before it was done, and he never said that he had to discuss any changes or additional work with the board. Barry Breaux testified that he was not authorized to sign change orders or spend additional money on the renovations unless the board approved it.

A written contract is the law between the parties, and the parties will be held to full performance of the obligations flowing from their contract. LSA-C.C. art. 1983; Wisinger v. Casten, 550 So.2d 685, 687 (La.App. 2 Cir.1989). However, the law is clear that written contracts may be modified by oral contracts and the conduct of the parties, even when the written contract contains a provision that change orders must be in writing. Rhodes Steel Buildings, Inc. v. Walker Construction Company, 35,917 (La.App. 2 Cir. 4/3/02), 813 So.2d 1171, 1177. Modification of a written agreement can be presumed by silence, inaction, or implication. Professional Const. Services, Inc. v. Lee M. Marcello Contractor, Inc., 550 So.2d 968, 971 (La.App. 5 Cir.1989), writ denied, 556 So.2d 36 (La.1990).

In the present case, the trial judge found that, although modifications do not always have to be in writing, he did not believe that there was a “meeting of the minds” between Mr. ■ Breaux and Aqua Pool regarding modification of the contract to add extras. The issue before this Court is whether Paradise Manor, through their representative, Mr. Breaux, agreed to the additional work verbally or by actions, in-actions, or silence, and therefore, whether Aqua Pool is entitled to payment for the extra work performed. In order to make this determination, we must consider each extra claimed by Aqua Pool and the testimony regarding this additional work.

1. Re-piping of intake manifold

The first extra claimed by Aqua Pool is installation of new plumbing pipes into and out of the manifold in the pumping system. Mr. Lonatro testified that during the project, he noticed that the pipes leading up to the manifold were failing due to age and needed to be re-plumbed and that some valves needed to be replaced. According to Mr. Lonatro, Mr. Breaux asked him what the cost would be for this work and he told him that it would be $800-$l,000. Mr. Lonatro testified that Mr. Breaux then authorized the work. Aqua Pool introduced an email written by Mr. Breaux to Mr. Lonatro regarding what he believed was the best way to re-plumb the intake manifold. Before Mr. Lonatro received the email, he had already installed new piping, but he changed it again to comply with Mr. Breaux’s instructions set forth in the email. Mr. Breaux testified that no one from Aqua Pool ever discussed that there would be extra charges for installing the new pipes to and from the manifold, and no one asked him to sign a change order for this work.

It is clear that the contract does not include re-piping of the intake manifold. This was extra work that was done by Aqua Pool when they discovered the condition of the piping leading to the manifold. Although a written change order |7was not signed, as stated above, a written contract can be modified by oral agreements, silence, or inaction. Mr. Breaux obviously knew that this additional work was being performed, as evidenced by his email to Mr. Lonatro with instructions regarding the work. Further, Mr. Jorgen-sen testified that Mr. Breaux informed the board that the manifold piping was being replaced. There is no evidence or indication in the record that Mr. Breaux opposed the changing of the piping due to Paradise Manor’s inability to pay additional fees, particularly considering the fact that Mr. Breaux specified how he wanted the new piping configured. It is unreasonable to believe that Aqua Pool would not charge Paradise Manor to purchase and replace additional piping that was not included in the original contract.

In this case, the actions of the parties establish that the written contract was indeed orally modified to include this additional work. Accordingly, we find that the trial court’s conclusion that Aqua Pool is not entitled to payment for this work was clearly wrong and must be reversed.

Randy Farrell, who was accepted as an expert in pool construction, pool price estimation, and pool electrical work, testified that $750-$l,200 would be a reasonable cost for installing new manifold piping and valves. He also testified that if manifold piping is found to be inadequate and needs to be changed, additional charges are justified. Aqua Pool seeks $1,000 for this work. Considering the testimony and evidence before us, we find that Aqua Pool’s claim is reasonable, and it is entitled to $1,000. Accordingly, we reverse the trial court’s judgment insofar as it denied payment for this work and, we award $1,000 to Aqua Pool.

2. Light Niches

The second “extra” claimed by Aqua Pool is compensation for three light niches. The contract provides that Aqua Pool was to install three new lights and | ^conduit to replace old deck boxes. When the pool was drained and the lights were removed, Aqua Pool noticed that there were no niches. According to Mr. Lonatro, a “niche” is a stainless steel bowl that is set into the pool’s shell and the light sits in the niche, which is water-tight, to keep water from seeping out of the pool through the shell that the light sits in.

Mr. Farrell testified that niches were not used in all pools when Paradise Man- or’s pool was built in 1958, but they are a code requirement now. He further stated that in doing a renovation job, if is it discovered that niches are not in place, it is a code requirement to install them.

Mr. Lonatro testified that Mr. Breaux was present when he discovered that there were no niches in Paradise Manor’s pool. He showed the problem to Mr. Breaux and strongly recommended installing niches because water can eventually leak through the wall without them. According to Mr. Lonatro, Mr. Breaux agreed that niches should be installed and authorized the work. Aqua Pool agreed to install the niches for $500 per niche, which was close to cost. At trial, Paradise Manor stipulated that $1,500 for installation of three niches was reasonable, but they argued that they did not owe this money because the work was not authorized.

Mr. Breaux testified that he was not informed by Aqua Pool that they were going to install three niches. Although he admitted in his deposition that he knew they were going to install niches, at trial he explained his deposition answer by stating that he did not know the difference between a light and a niche at the time of the deposition. He testified that niches were never discussed as an extra during the project, and he believed that they should have been included as part of the installation of the lights, which was included in the contract.

Mr. Lonatro has been involved in pool building and renovation since 1981, and he testified that he has renovated 550-600 pools within the last five years. Considering his experience in this industry, he should have known that niches were | flnot a code requirement in 1958 when Paradise Manor’s pool was built and that there was a good possibility that niches would need to be installed during this renovation. When submitting its bid for this job and negotiating the contract, Aqua Pool should have informed Paradise Manor of the possibility that niches may be needed and the possible additional cost.

Legal agreements have the effect of law upon the parties, and the parties shall be held to full performance of the obligations flowing therefrom. L & A Contracting Company, Inc. v. Ram Industrial Coatings, Inc., 99-0354 (La.App. 1 Cir. 6/23/00), 762 So.2d 1223, 1230, writ denied, 00-2232 (La.11/13/00), 775 So.2d 438. Contracts must be performed in good faith, and may only be modified by mutual consent. Id. at 1232.

Aqua Pool’s representative, Mr. Lonatro, signed the contract which provided that Aqua Pool would install three lights in the pool. Pursuant to the contract, Aqua Pool was responsible for providing all of the labor, materials, and equipment necessary to accomplish its work, including installation of the lights. Accordingly, we find that the niches were part of the materials necessary to install the lights and were, therefore, included under the contract.

Considering the testimony and evidence in this matter, we find that Aqua Pool is not entitled to additional compensation for installing three niches, because this cost was included, or should have been included, in the original contract. Accordingly, we affirm the portion of the trial court judgment denying Aqua Pool’s request for payment for the niches.

S. Concrete Decking

According to Mr. Lonatro, he suggested to Mr. Breaux that extra concrete should be poured in order to widen the narrow decking and keep uniformity around the perimeter of the pool. He told Mr. Breaux that it would cost $2.50 per square foot for this extra decking and that they needed 300-400 square feet. Mr. Lonatro | mtestified that Mr. Breaux authorized this work. Aqua Pool contends that it poured 355 square feet of additional decking. Mr. Farrell testified that the average cost for concrete decking is $6-$8 per square foot.

Mr. Breaux testified that he measured to determine how much additional decking was poured by Aqua Pool, and it was only 25.8 square feet. He stated that Aqua pool could not possibly have added 300-400 square feet.

It is clear that Mr. Breaux knew that additional decking was being put in by Aqua Pool. The actions of the parties show that the contract was orally modified to allow this additional work. Considering the record before us, we find that Aqua Pool is entitled to payment for this additional work, but only at the cost quoted by Mr. Lonatro to Mr. Breaux, $2.50 per square foot.

The party asserting modification of an obligation must prove by a preponderance of the evidence facts or acts giving rise to the modification. LSA-C.C. art. 1831; L & A Contracting Company, Inc. v. Ram Industrial Coatings, Inc., supra at 1233. There was conflicting testimony as to the amount of additional decking that was poured. According to Aqua Pool, 355 square feet of additional decking was poured, whereas Mr. Breaux stated that it was only 25.8 square feet.

Although we find that Aqua Pool established by a preponderance of the evidence that the contract was orally modified to include additional decking, we do not find that Aqua Pool proved by a preponderance of the evidence that 355 square feet of additional decking was poured. Therefore, we conclude that Aqua Pool is only entitled to payment for 25.8 square feet of additional decking. Accordingly, we reverse the trial court’s judgment insofar as it did not allow any compensation for the additional decking, and we award Aqua Pool $2.50 per square foot for 25.8 square feet of additional decking, for a total of $64.50.

|nA The Baby Pool

Aqua Pool claims that it is entitled to $1,425 for additional work performed on the baby pool. According to Mr. Daniel, when the baby pool was drained and the old plaster was jackhammered out, they discovered that the piping from the equipment room to the baby pool was made of copper. He stated that there was no way to tell that there were copper pipes under the baby pool before the main drain was jackhammered out. He indicated that copper piping is outdated, and Mr. Breaux authorized them to change it. He testified that Mr. Breaux knew they were changing the copper piping to PVC because he was there when it was done.

Mr. Lonatro testified that it was Mr. Breaux’s decision to change the piping under the baby pool. They changed the return line and main drain line, installed the water feature, and ran PVC lines back to the equipment room.

Mr. Breaux testified that he did not authorize this or any other additional work. However, he was at the site almost every day and was certainly aware that this additional work was being done. There is no evidence to indicate that he told anyone not to do the work or disapproved. As stated above, inaction or silence can establish modifications to a contract.

Considering the testimony and evidence regarding the additional work on the baby pool, we find that that trial court was manifestly erroneous in failing to find that the contract was modified to allow this additional work. We conclude that Aqua Pool is entitled to $1,425, which Paradise Manor stipulated was a reasonable charge for the additional work performed on the baby pool. Accordingly, we reverse the trial court judgment insofar as it denied recovery to Aqua Pool for this additional work, and we award $1,425 to Aqua Pool.

5. Miscellaneous Valves and Equipment

Aqua Pool claims that it is entitled to $640 for the following items: 1) four Jandy valves; 2) one 3-inch valve; 3) one new chlorinator; and 4) installation of [12new equipment. Mr. Lonatro testified that they installed new valves on the filtration system, a new pump, and a new chlorinator. He stated that Mr. Breaux authorized these extras. Mr. Farrell testified that the charges claimed by Aqua Pool for the pump, valves, chlorinator, and setting equipment were not unreasonable.

Considering the testimony on this issue, we find that Aqua Pool is entitled to $640 for these items, and we reverse the trial court judgment insofar as it denied Aqua Pool this award.

In its second assignment of error, Aqua Pool argues that the trial court erred in awarding Paradise Manor money to repair the cracks in the concrete and for the electrician’s bill. The trial court awarded Paradise Manor an offset of $750 to repair the cracks in the pool decking and $710 for the electrician’s bill that was paid by Paradise Manor.

Paradise Manor argues that there are cracks in the concrete decking that were caused by Aqua Pool’s defective work. Aqua Pool responds that the cracks were less than % of an inch wide, very minor, and inconsequential. In support of its position, Aqua Pool cites testimony from Paradise Manor’s expert, Ted Ladner, who was accepted as an expert in pool construction and renovation, wherein he stated that decks in New Orleans will crack sooner or later. Aqua Pool also notes the testimony of Mr. Farrell, wherein he indicated that it is common for concrete decking to crack. Aqua Pool argues that Paradise Manor is not entitled to an offset for cracks because cracking is common and expected.

Louisiana law implies that a contractor will complete the work in a good and workmanlike manner and that it will be free from defects in workmanship or materials. Mount Mariah Baptist Church, Inc. v. Pannell’s Associated Electric, Inc., 36,361 (La.App. 2 Cir. 12/20/02), 835 So.2d 880, 887, writ denied, 03-555 (La.5/2/03), 842 So.2d 1101. There was a great deal of testimony regarding _[^expansion joints and control joints and their ability to prevent or minimize cracking.

Randy Farrell testified that placing expansion joints every 16 feet does not eliminate cracks, but it does ease the cracks and prevent some cracking. He recommended placing a control joint every eight feet. Terry Lonatro agreed that expansion joints should be placed every 16 feet and control joints every eight feet.

Ted Ladner testified that he inspected Paradise Manor’s pool and found that there was an insufficient amount of expansion joints and that there were cracks exactly where expansion joints should have been placed. He saw cracks in two places which he believes would cost $2,000-$4,000 to repair.

Although expansion and control joints cannot guarantee that cracking will not occur, the testimony established that these joints can minimize and prevent some cracking. According to Mr. Ladner, Aqua Pool did not place expansion joints every 16 feet, as recommended by Mr. Lonatro and Mr. Farrell.

The trial court awarded a $750 offset to Paradise Manor due to the cracks. Apparently, the trial court believed that the cracks were caused by Aqua Pool’s work or failure to properly place expansion joints in the decking. We have considered the testimony and evidence, including the photographs of the cracks, and we conclude that this finding of the trial court was not clearly wrong or manifestly erroneous. Accordingly, we affirm the award of a $750 offset for the cracks in the decking.

We also affirm the trial court’s award of a $710 offset to Paradise Manor for a payment made to an electrician. Aqua Pool argues that the electrical work was not included in the contract and, therefore, Paradise Manor was responsible for the electrician’s bill, because the contract states that Aqua Pool is not responsible for electrical systems. Paradise Manor argues that Aqua Pool was required to pay for the electrical work, because several pages of the contract provide, “Price quoted |14consists of all labor, material and equipment necessary for the above specifications.” Paradise Manor contends that the work of an electrical subcontractor should have been included in the labor necessary for installation of the lights.

Interpretation of a contract is the determination of the common intent of the parties. Whitaker Construction Company, Inc. v. Larkin Development Corporation, 34,297 (La.App. 2 Cir. 12/6/00), 775 So.2d 571, 574, writ denied, 01-68 (La.3/16/01), 787 So.2d 312. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Id.

In the present case, the clear wording of the contract indicates that all labor, materials, and equipment necessary for the work is included in the contract price. The electrician’s work is labor that is necessary for installation of the lights, including re-wiring and connecting the niches to the electrical junction boxes. We find Aqua Pool’s argument that it is not responsible for electrical systems to be unpersuasive, because payment for the electrical services required for installation of the lights does not render Aqua Pool “responsible for electrical systems,” and is not excluded under the contract. Accordingly, we find no error in the trial court’s award of a $710 offset to Paradise Manor for the electrician’s payment.

In its third assignment of error, Aqua Pool argues that the trial court erred in ordering the parties to select an unrelated third party to determine whether or not the air leak complained of exists and, if so, whether or not it was caused by Aqua Pool. Aqua Pool asserts that Paradise Manor did not carry its burden of proving by a preponderance of the evidence that Aqua Pool’s actions during the renovation caused an air leak, and no further discovery or inspection may be performed after trial.

11fiThere was testimony about Paradise Manor’s claims of an air leak. Mr. Lona-tro testified that there was a leak in the main drain line .prior to commencement of Aqua Pool’s work, and there was a slight air leak when they finished the renovations. He stated that it was not part of the contract for Aqua Pool to change the main pool drain line, and the small air leak was not caused by any work that Aqua Pool performed. He testified that a leak detection company came out and found a very small air leak that was probably in the line that was encapsulated in the pool’s shell, but it was nothing to be concerned about and would not affect the performance of the pump or filtration system.

Mr. Ladner testified that when he inspected the pool, he saw bubbles, which means that there is air in the system and the pump must run longer in order to clean and filter the water. He stated that it is not acceptable to leave an air leak in the system.

Paradise Manor stipulated that the source of the air leak is in the main drain pipe. Aqua Pool argues that it did not do any work on the main drain, but Paradise Manor responds that Aqua Pool’s work still caused the leak.

Mr. Breaux admitted that he wrote a letter to Aqua Pool thanking them for fixing the air leak in the main drain, because he thought it was fixed. However, he noticed the next day that it was still leaking.

At the end of trial, the trial judge stated,

... .there was not sufficient testimony to establish whether or not there was a leak in that line prior to the work commencing. There is testimony there was a leak after.
I understand that there was a fax thanking you for fixing it, but we had more than adequate testimony that really it wasn’t fixed. That seems to have been a mistake or a problem by your company and wasn’t straightened out while you were there and had the opportunity, and I can only go by the — by what’s put in front of me. So that has to be fixed.
If Paradise Manor does not want you on their grounds, then you will both meet and mutually choose |1fisomeone to do it. The gentleman that testified here in court gave some really vague numbers as to maybe twelve hundred dollars ($1200) to test and twenty-nine hundred dollars ($2900) to fix. He was very — he was not specific and I don’t feel comfortable using those numbers.
I want someone who does it for a living to go in — and I know he does, but he was — he was really speaking off the top of his head. If the record will reflect I kind of asked him at that point could he get more specific, and I took notes and I even think I said orally — I recited what he had said “twelve hundred dollars to test and twenty-nine hundred dollars to fix”; so, that’s got to be done. I think that that’s the pool company’s fault, they’re responsible, so they’re going to have to fix that.

Although the trial judge’s comments at the end of trial are not part of the judgment, it reveals that he apparently believed that an air leak was caused by Aqua Pool. However, in the signed judgment, he ordered an unrelated third party to inspect the pool in order to determine for certain whether there was an air leak and, if so, whether it was caused by Aqua Pool during the renovation.

LSA-C.C.P. arts. 1631 and 1632 give discretion to the trial judge to control the order of trial and procedure in the interest of justice. Mancuso v. Union Carbide Corporation, 99-1273 (La.App. 5 Cir. 4/25/00), 762 So.2d 79, 81. The decision to hold open or reopen a case for the production of additional evidence rests within the discretion of the trial judge and will not be disturbed absent abuse of that discretion. deBen v. Bobby Collins Seafood, Inc., 00-306 (La.App. 5 Cir. 10/31/00), 772 So.2d 266, 267-268; See also Adams v. Allstate Insurance Co., 01-1244 (La.App. 5 Cir. 2/26/02), 809 So.2d 1169.

Considering the record in this ease, we cannot say that the trial judge abused his discretion when he left the case open for additional evidence regarding the possible air leak. Accordingly, this assignment of error is without merit.

In its fourth assignment of error, Aqua Pool argues that the trial court erred in denying its request for attorney fees. The trial judge denied Aqua Pool’s request for attorney fees, because he found that the extras were not due and owing. J^jGenerally, Louisiana law does not permit recovery of attorney fees in the absence of a contractual agreement by the parties to pay attorney fees or a statutory provision allowing recovery. Kinsinger v. Taco Tico, Inc., 03-622 (La.App. 5 Cir. 11/12/03), 861 So.2d 669, 671-672.

The contract in this case contains the following provision:

Should this account be placed in the hands of an attorney for collection or handling, customer agrees to pay all attorney’s fees, court costs, in addition to the outstanding balance due plus all interest accrued from completion of job.

In this case, Aqua Pool sued Paradise Manor for collection of $3,000, which was the outstanding balance due on the contract, and the trial court found that it was entitled to this money. In accordance with the contract provisions, we find that Aqua Pool is entitled to attorney fees for collection and handling of the case as it pertains to collection of the $3,000. The contract does not cover the extras and, therefore, attorney fees incurred for recovery of payment for the extras and the handling of other issues in this litigation are not recoverable under the contract.

Aqua Pool submitted an itemized statement indicating that attorney fees that it incurred in this litigation totaled $6,457.50. Considering the work performed and the entire record, we find that approximately one-third of the legal work done on behalf of Aqua Pool was performed in furtherance of collecting the $3,000 due on the contract. Therefore, we find that reasonable attorney fees for collection of the outstanding balance of the contract are one-third of the total fees. Accordingly, we award $2,152.50 in attorney fees to Aqua Pool.

DECREE

For the reasons set forth above, we reverse the trial court’s judgment insofar as it denied recovery to Aqua Pool for: 1) repiping of the intake manifold; 2) 25.8 square feet of additional concrete decking; 3) work on the baby pool; and 4) miscellaneous and equipment, and we award Aqua Pool $3,129.50 for this | ^additional work and materials. We also award attorney fees to Aqua Pool in the amount of $2,152.50. In all other respects, the trial court’s judgment is affirmed. Costs of this appeal are to be borne by the appellee, Paradise Manor.

AFFIRMED IN PART; REVERSED IN PART.

      . At the conclusion of the trial, the trial judge found that the renovations were completed timely and that Aqua Pool was entitled to the remaining $3,000 of the contract price. The trial judge did not award Aqua Pool any money for the extra work performed, except $380 for installation of a pump. The trial judge also found that Paradise Manor was entitled to a credit for $710 that it paid to an electrician and for $750 to fix cracks in the decking. Accordingly, the amount awarded to Aqua Pool apparently represents the $3,380 for the remainder for the contract price and the pump, minus the $1,460 credit for the electrician’s payment and the cracks in the decking.