author: | ¿THOMAS F. DALEY, Judge. | t ROTHSCHILD, J.,

text:
    STATE of Louisiana v. Leonard BOZEMAN.
    No. 03-KA-897.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Donald A. Rowan, Jr., Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for PlaintiffAppellee.
    Bruce G. Whittaker, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   | ¿THOMAS F. DALEY, Judge.

Defendant, Leonard Bozeman, was charged in a Bill of Information with two counts of armed robbery in violation of LSA-R.S. 14:64. He proceeded to trial on count two, was found guilty as charged by a twelve-person jury, and was sentenced to seventy-five years of imprisonment. Defendant then withdrew his not guilty plea to the first count and entered a plea of no contest under Alford reserving his right to appeal under Crosby.

Defendant appeals his conviction and sentence on count two only. For the reasons that follow, we vacate the conviction and sentence and remand for a new trial.

FACTS:

At approximately 11:00 p.m. on August 10, 2002, Samantha Lore was working at an E-Z Serve on Metairie Road when a man, later identified as | ^defendant, Leonard Bozeman, came to the counter with two small bottles of Gatorade. After Ms. Lore rang up the drinks, Leonard Boze-man pointed a gun at her and said, “put the money in the bag, b* * * *.” Ms. Lore testified that Leonard Bozeman specifically demanded twenty-dollar bills, but Ms. Lore stated that she did not have any so she proceeded to give him five-dollar bills. She explained that he made her lift the cash register drawer to make sure there were no twenty-dollar bills under it. He then took all the loose change from the drawer, counting it as he took it.

Leonard Bozeman started to move toward the door, but turned back and demanded Kool cigarette cartons. Ms. Lore testified that there were no cartons so she gave him all the loose packs she could find. Leonard Bozeman left the store taking the money, cigarettes, and several pairs of sunglasses.

Ms. Lore testified that she immediately called the police and her manager. She explained that when the police arrived, she gave the officer a description of the perpetrator. About a week later, the police came to her home and showed her a photographic lineup. She testified that she identified Leonard Bozeman out of the photographic lineup as the person who robbed her because “it was definitely him.” Ms. Lore again positively identified Leonard Bozeman in court as the perpetrator three separate times during her testimony.

ASSIGNMENTS OF ERROR AND DISCUSSION:

On appeal, defendant raises three Assignments of Error. Because we find a reversible error occurred during voir dire, a discussion of the other Assignments of Error is moot.

Defendant argues the trial court erred in denying three of his challenges for cause during voir dire. He asserts prospective jurors James Hale, Jules La-coste, and Ronald Boyd all expressed difficulty with the presumption of innocence. He 14also contends James Hale and Ronald Boyd had difficulty with his right against self incrimination. He concludes that none of these prospective jurors were rehabilitated.

LSA-C.Cr.P. art. 797 provides that a defendant may challenge a juror for cause on the following pertinent grounds:

(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence; [or]
(4) The juror will not accept the law as given to him by the court[.]

A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. However, when a prospective juror has voiced an opinion seemingly prejudicial to the defense, but after further inquiry (frequently called “rehabilitation”), the juror demonstrates the ability and willingness to decide the case impartially according to the law and evidence, a challenge for cause is not warranted. State v. Anthony, 98-0406 (La.4/11/00), 776 So.2d 376, 391, cert. denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000).

The trial court is vested with broad discretion in ruling on challenges for cause and its ruling will only be reversed when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Anthony, supra. The trial court has great discretion in ruling on cause challenges because it “has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning.” Id. at 392.

| ^Prejudice is presumed when a challenge for cause is erroneously denied by the trial court and the defendant has exhausted his peremptory challenges. State v. Anthony, supra. To prove there has been error warranting a reversal of conviction and sentence, the defendant need only show (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1281. In the present case, Leonard Bozeman exhausted his peremptory challenges and, therefore, he only needs to show that the trial court abused its discretion by denying his challenges for cause.

A prospective juror’s preconceived opinion as to the defendant’s guilt does not mandate a removal for cause if the potential juror expresses an ability to disregard that opinion and render a verdict according to the law and evidence. State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382, 389. In Cousan, the Louisiana Supreme Court found no error in the trial court’s denial of a challenge for cause for a prospective juror who stated he had a preconceived opinion as to the defendant’s guilt. However, the juror indicated he could set aside his opinion and follow the law, which the Supreme Court noted was supported by the overall tenor of the juror’s voir dire responses.

Although defendant argues the trial judge erred in denying his challenge for cause as to three prospective jurors, we will only discuss prospective juror, Jules Lacoste, because the trial judge committed reversible error in denying the challenge for cause with respect to Jules Lacoste.

Mr. Lacoste was a member of the second jury venire. During voir dire, the prosecutor explained the presumption of innocence and the defendant’s right against self-incrimination and all jurors collectively stated they could follow the law. When Mr. Lacoste was first asked about applying the presumption of innocence by defense counsel, he indicated that whether he could apply the presumption of innocence depended on other issues that might come up during the [ fitrial. He stated “if prior convictions or prior arrests, et cetera, that would make it very difficult for me.” Defense counsel then questioned him asking whether if sitting right now would he have difficulty presuming the defendant innocent, to which Mr. Lacoste responded “No, I’m very neutral at the moment.” When defense counsel told him he could not be neutral, but had to presume defendant innocent, Mr. Lacoste stated he probably could not do that. Later, Mr. Lacoste was asked if he could be a fair and impartial juror and he replied affirmatively.

The trial court denied defense counsel’s challenge for cause regarding Mr. Lacoste and defense counsel used a peremptory strike to exclude Mr. Lacoste from the jury.

The State relies on Mr. Lacoste’s affirmative responses to the group questions and his individual assertions that he could be fair and neutral as justification for the denial of the challenge for cause. However, a prospective juror’s declaration of fairness and neutrality does not assure an understanding of the constitutional principle of the presumption of innocence. When the prospective juror clearly asserts that he could not or probably would not apply the presumption of innocence that juror should be struck for cause unless rehabilitated. The failure of the trial judge to grant such a challenge is reversible error. In State v. Oliphant, 220 La. 489, 56 So.2d 846 (1952), the Louisiana Supreme Court held that when a prospective juror was not able to afford the defendant the presumption of innocence mandated in the law, the trial court erred in refusing to sustain defendant’s challenge for cause as to that prospective juror. The Oliphant court held “no matter how strongly the juror asserts that he could render a fair verdict,” where the juror was unable either to afford the defendant the presumption of innocence mandated in the law or where the prospective juror would not permit the presumption of innocence to follow the accused all during the trial, there exists a valid challenge for cause. Oliphant at 850.

|7In considering the challenge for cause in this case the trial judge indicated that he believed that Mr. Lacoste only had a problem with the presumption of innocence if the juror knew the defendant had prior convictions. The trial judge in denying the challenge noted in the record that pri- or convictions “shouldn’t come out.” Whether or not the defendant has or does not have prior convictions does not affect his constitutional right to the presumption of innocence.

The Supreme Court has stated “it is an important part of voir dire examination to discover any prospective juror who may have difficulty understanding his right (the presumption of innocence) as well as to discover a juror who may hold it against a defendant who exercises the right.” State v. Cross, 93-1189 (La.6/30/95), 658 So.2d at 687; State v. Lee, 559 So.2d 1310, 1316 (La.1990); cited in State v. Turner, 96-845 (La.App. 3 Cir. 3/5/97) 692 So.2d 612. As stated by our Supreme Court in State v. Hallal, 557 So.2d 1388 (La.1990), a challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial when the juror’s response as a whole reveals facts from which biased, prejudice, or inability to render judgment according to the law may be reasonably implied.

The Louisiana Supreme Court recently addressed challenges for cause in State v. Kang, 2002-2812, (La.10/21/03), 859 So.2d 649, instructing the appellate court to show deference to the trial court’s conclusions in ruling on a challenge for cause. We find the instant case to be distinguishable from Kang. In Kang the trial judge rehabilitated the challenged juror and based on the rehabilitative questions and answers, concluded that the juror could be fair and impartial. In the instant case, when Mr. Lacoste was asked if he was going to be able to apply the presumption of innocence, he responded, “probably not”. There was no rehabilitation by the prosecutor or the trial judge. We find that the denial of the challenge for cause as to Mr. Lacoste was reversible error, hence the ^¡¿defendant’s conviction and sentence should be vacated and the matter remanded for a new trial.

CONCLUSION:

For the foregoing reasons, the defendant’s conviction and sentence are vacated. This matter is remanded to the trial court for a new trial.

CONVICTION AND SENTENCE VACATED; MATTER REMANDED.

ROTHSCHILD, J., dissents.

| t ROTHSCHILD, J.,

dissents.

I must respectfully dissent from the majority opinion insofar as it finds reversible error in the trial court’s denial of defendant’s challenge for cause of juror Jules Lacoste.

La.C.Cr.P. art. 797(2) authorizes a challenge for cause where the juror is not impartial. This section further states that the juror’s opinion or impression as to the guilt or innocence of defendant shall not be a sufficient ground for the challenge, if the court is satisfied that the juror “can render an impartial verdict according to the law and evidence.” La. C.Cr.P. art. 797(4) allows a challenge where the juror will not accept the law given to him by the trial court. As stated in the majority opinion, the trial court is vested with broad discretion in ruling on challenges for cause and its ruling will only be reversed when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Anthony, 98-0406 (La.4/11/00), 776 So.2d 376, 391.

My review of the voir dire record as a whole in the present ease supports the trial court’s ruling denying defendant’s challenge for cause of the juror Jules La-coste. The record indicates that at the outset of voir dire, Mr. Lacoste gave an affirmative response when asked whether he could follow the law on the presumption of innocence. Although Mr. Lacoste subsequently expressed a problem with presuming someone innocent when there was evidence of a prior conviction, he specifically stated he did not have a problem presuming defendant | ¡.Leonard Bozeman innocent, and further answered that he was neutral. When defense counsel told him that neutrality was insufficient, and that he would have to look at the juror and say he was innocent, the juror responded he would “probably not” be able to do that. However, defense counsel later asked whether the juror could be fair and impartial, and Mr. Lacoste responded in the affirmative.

Under the circumstances presented here, I fail to find the trial court abused its discretion in refusing to excuse Mr. La-coste for cause. Mr. Lacoste stated he could be a fair and impartial juror. A reading of the voir dire transcript as a whole indicates that Mr. Lacoste would apply the law as given to him. The juror’s response of “probably not” which is relied upon by the majority in finding reversible error appears from a reading of the entire transcript to be the result of confusion in the question posed by defense counsel. However, at no time during the voir dire exchange did Mr. Lacoste indicate that he could not or would not apply the presumption of innocence, although he admitted it would be difficult. This case is therefore distinguishable from the case of State v. Turner, 96-845 (La.App. 3 Cir. 3/5/97), 692 So.2d 612 cited by the majority wherein the juror stated she believed the defendant should put on evidence of his innocence.

Further, Mr. Lacoste’s overall responses during jury voir dire, including those given as a group response, indicated he could be fair and impartial and apply the law. The cases cited by the majority opinion which indicate a lack of partiality on the part of the prospective juror are distinguishable from the present case where the juror clearly indicated he could be fair and impartial.

For the reasons stated herein, I fail to find the trial court abused its discretion in denying defense counsel’s challenge for cause of juror Jules Lacoste. Accordingly, I believe defendant’s conviction and sentence should be affirmed.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . State v. Crosby, 338 So.2d 584 (La.1976).


source: Caselaw Access Project

author: liGREMILLION, Judge.

license: Public Domain

text:
    Lonnie and Jackie RHOADS v. SIGNATURE LINCOLN-MERCURY.
    No. 03-931.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Craig Alan Davis, Lafayette, LA, for Plaintiff/Appellee, Lonnie and Jackie Rhoads.
    Daniel M. Landry, III, Lafayette, LA, for Defendant/Appellant, Signature Lincoln-Mercury.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   liGREMILLION, Judge.

In this case, the defendant, Signature Lincoln-Mercury, appeals the judgment in favor of the plaintiffs, Lonnie and Jackie Rhoads, rescinding the sale of a 1997 Lincoln Continental. For the following reasons, we affirm for reasons other than those set out by the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On January 13, 2001, the Rhoads purchased a used Continental from Signature for $13,800. On March 3, 2001, the Rhoads attempted to trade in the car at another dealership, whereupon they allege they were informed for the first time that the vehicle had been in an accident. In their petition, they claim that the salesperson at Signature, Scott Strenz, did not inform them that the vehicle had been wrecked despite their numerous requests for such information. The Rhoads filed suit for reeision after demands for a refund from the dealership were unsuccessful.

The trial court, in its reasons for ruling, stated:

Plaintiffs sued to rescind the sale of a 1997 Lincoln Continental asserting the vehicle had certain redhibitory defects. Specifically, they complain about 1) the way the car rattles, 2) the way the ear drives, 3) that the car has been in a collision which dramatically reduced its value and that collision was not disclosed to them, and 4) that turning the ignition switch often does not start the car which then requires the plaintiff to push start the car.
This court finds the first three complaints do not describe redhibitory defects because they were not latent. The fourth complaint does describe a redhi-bitory defect and reeision of the sale is the appropriate remedy.

The trial court went on to award the Rhoads: 1) the return of the purchase price with interest from the time it was paid, 2) the reimbursement of the reasonable expenses | ..occasioned by the sale, and, also 3) reasonable attorney fees, which the court set at $4,674.

Signature timely appealed to this court and assigns as error:

1. The trial court’s determination that the ignition problem was a redhibi-tory defect.
2. The trial court erred in failing to apply the waiver of warranty executed by the Rhoads as to preclude the claim asserted herein.
3. The trial court erred in rescinding the sale, as an alternative the trial court should have decreed a diminution of the purchase price rather than rescinding the sale.

REDHIBITION

On appeal, we will not overturn the trial court’s determination that a redhibitory defect existed unless its finding is clearly wrong. Goodman v. Roberts, 587 So.2d 807 (La.App. 3 Cir.1991).

The issue before us is whether the faulty ignition switch constituted a redhibitory defect such that the sale should be rescinded. Louisiana Civil Code Article 2520 states:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that the buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

Louisiana Civil Code Article 2521 states:

| :iThe seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer of such things.

The trial court found that Signature was aware of the existence of the intermittent starting defect and that it did not tell the Rhoads about this latent defect. It further found that this latent defect existed at the time of delivery and that the Rhoads could not discover it by simple inspection. Finally, the trial court stated: “This defect is redhibitory because it rendered the car useless as a means of reliable luxury transportation, which was its intended purpose.” After reviewing the record, we disagree and find that the trial court was clearly wrong in finding that the ignition switch problem constituted a redhibitory defect in the Continental. The ignition switch problem does not rise to the level of a redhibitory defect when the Rhoads purchased a used car “as is” with “no warranty”.

Lonnie testified that he purchased the Continental from Strenz for $13,800. When asked what problems Lonnie was having with the car he responded that it does not start despite numerous attempts and that you have to “push it around in neutral and cram it into park and rock the motor or do something and sometimes it will start.” He further testified that, for the first month they owned the car, his wife complained that it made a lot of highway noise and that it rattled. Regarding mechanical problems he stated, “it didn’t ever refuse to start in the first month.” However, he stated that after that it would fail to start — that it would crank, but not start. Lonnie testified that they brought the car to a repair shop, other than the one owned by Signature, because he did not want Signature working on it after they lied about not telling him the car had been wrecked. He also stated that he knew he 1 ¿purchased the car “as is.” He stated that, since they purchased it, he and his wife had put 20,000 miles on the car.

Jackie testified similarly and stated that she no longer drives the vehicle because of the starting difficulties. She specifically stated that she asked Strenz if the vehicle had been wrecked and that he replied “no.” She stated that she did not have anyone inspect the vehicle because she attended high school with Strenz and trusted him. She stated that she was told that an old man had owned the vehicle and could no longer keep it after he had a stroke and that the car had 19,000 miles on it. She further testified that she knew there was no warranty on the vehicle. Jackie said she used the car without incident for the first month traveling back and forth from Milton to Lafayette for her job. However, she stated that, by the second month, the car was not driving properly, was rattling, and the steering wheel was shaking. She stated that the car had been towed twice and the fuel pump had been replaced.

Joseph Earl Corbett, who was the used car manager at Robinson Brothers Lincoln-Mercury in Baton Rouge, Louisiana, testified that he appraised the Rhoads’ Continental when they brought it in to trade for another vehicle. He stated that the car had been wrecked and he appraised it at $9,000 on March 3, 2001. He stated that, if the car had not been wrecked, it would have been valued at $12,000 wholesale and $14,500-15,000 retail.

Andrew Citron, a body shop manager, inspected the Continental at the request of the Rhoads. He testified that the vehicle had been lightly damaged and had undergone repairs to the front end.

IsNeal Huval, the owner of a paint and body shop, also inspected the Continental at the Rhoads’ request on March 12, 2001. Huval described the front end damage to the car as extensive, probably in the range of $3,000.

Raymond Martin, Jr., a friend of the Rhoads, testified that he had to assist Lonnie half a dozen times in starting the car by pushing it. He testified that they would put the car in neutral, push the car backwards, and then put it in park, and only then sometimes would the car start.

Byron Lasalle, Lonnie’s employer, described one incident when he had to help Lonnie push the car around to get it to start. He also stated he was familiar with the numerous problems Lonnie had with the car.

Richard Orgeron, the previous owner of the Continental, testified that one day Jackie knocked on his door and asked him if he had problems with the car. Orgeron testified that, later that same day, he met with both Lonnie and Jackie and told them that the problem he had with the car was that it would not start. Orgeron stated that while he owned the car, there were three instances when it would not start and after each one he brought the car to Signature. He stated that Signature told him they could not find a problem because the computer did not recognize one.

Orgeron further testified that he purchased the car for $28,000 from Signature and that he owned it for approximately fifteen months. He also stated that he asked an employee of Signature whether the car had been wrecked and that he was told it had not been. He stated that he traded in the car for $9,000 to $10,000 and bought a new one from Signature. He stated that he was so disgusted with the car that he did not mind the substantial decrease in value that occurred in a year’s time.

1 (¡Strenz testified that Jackie asked him if the car had been wrecked and that he replied that, to his knowledge, he had no idea if it had been wrecked. He stated that he did not go and check with anyone to see if the car had been wrecked. Plaintiffs counsel then presented Strenz with Signature’s own documents stating that the car had undergone paint and body work. However, Strenz stated that he does not go by the documents and that he was unaware that the vehicle had been wrecked.

Both Lonnie and Jackie testified that they fully understood that they were buying the car “as is” and that it would have no warranty. Moreover, the fact that the Rhoads have put 20,000 miles on the car certainly indicates that the car is indeed fit for its intended use. Lonnie also testified that the only time the car had been in the shop was when the fuel pump was changed. Thus, we do not find that the ignition switch problem rose to the level of a redhibitory defect.

However, it is clear from the record that the Rhoads specifically asked if the Continental had been wrecked and that they were specifically told that it had not been. We agree with the Rhoads that the sale should be rescinded for lack of consent based on Signature’s failure to tell the Rhoads that the car had been previously wrecked. Signature knew the car had been wrecked and failed to disclose it to the Rhoads. The paperwork from the Auto Auction clearly states that the car had undergone paint and body repairs. Furthermore, Corbet, Citron, and Huval all testified that anyone with experience in the used-car business would have easily recognized, via a simple inspection, the replaced parts on the car due to paint over-spray and the different labels on the new parts. Whether Strenz personally knew that the car had been wrecked is irrelevant; the dealership’s knowledge is imputed to him. |7We agree with the Rhoads that the issue is not whether the repairs and replacement parts were a latent defect, but rather, whether the Rhoads consented to the sale and whether that consent was vitiated by error or fraud.

Louisiana Civil Code Article 1949 states: “Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.” We find that the Rhoads’ consent was vitiated by error, as they specifically inquired if the car had been wrecked, they testified that they would not have purchased the car if they knew it had been wrecked, and Signature knew or should have known that the Rhoads would not have purchased the car if they knew it had been wrecked.

In Monte v. Harvey, 596 So.2d 278 (La.App. 3 Cir.1992), we found that the dealership’s knowledge that the car had been wrecked and re-built would be imputed to the salesperson and that the salesperson’s declaration to the buyer that “to his knowledge the car had not been wrecked” constituted fraud. Similarly, we agree that the Rhoads are entitled to rescission of the sale and that Signature is liable for damages and attorney fees.

Signature argues that diminution of the price is an alternative remedy. Although we note that Signature may have been due a credit for use pursuant to La.Civ.Code art. 2545, as the trial court noted, Signature did not present any evidence of the value of the Plaintiffs’ use of the car. We agree with the trial court’s finding on this issue, and without evidence of the use attributed to the Rhoads, we are unable to award Signature a credit. Thus, this assignment of error is without merit.

| ^CONCLUSION

The trial court’s judgment rescinding the sale of the 1997 Lincoln Continental and awarding the plaintiffs-appellees, Jackie and Lonnie Rhoads, attorney fees is affirmed for different reasons. All costs of this appeal are taxed against the defendant-appellant, Signature Lincoln-Mercury.

AFFIRMED FOR DIFFERENT REASONS.

COOKS, J., concurs for the reasons expressed by the trial judge.


author: LEZELL, Judge.

text:
    STATE of Louisiana v. Dellandra Brett TODD.
    No. KA 03-1230.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.
    Hon. Douglas L Hebert, Jr., District Attorney, Oberlin, LA, for Plaintiff/Appel-lee, State of Louisiana.
    Mack Irvin Frank, Attorney at Law, Opelousas, LA, for Defendant/Appellant, Dellandra Brett Todd.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   LEZELL, Judge.

Defendant, Dellandra Brett Todd, was charged by bill of information with one count of distribution of a controlled dangerous substance, Schedule II, cocaine, in violation of La.R.S. 40:967(A)(1). On March 12, 2003, Defendant was found to be guilty as charged by a jury. On April 2, 2003, Defendant filed a motion for a new trial. Defendant’s motion was heard on April 15, 2003, at which time the motion was denied. Defendant was sentenced on April 22, 2003, to twenty-five years at hard labor, with the first two years to be served without the benefit of parole, probation, or suspension of sentence.

On May 13, 2003, Defendant filed a motion to reconsider his sentence. The trial court denied Defendant’s motion without written reasons on May 16, 2003. Defendant now appeals his conviction and sentence.

FACTS

On May 7, 2002, Defendant sold two rocks of crack cocaine for forty dollars to Tajuana Gallington, a confidential informant with the Allen Parish Sheriffs Office.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for eiTors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENT OF ERROR NUMBER 2

Defendant assigns two errors. His first assignment of error is that the trial court imposed a constitutionally excessive sentence, and second, that the evidence was insufficient to support the verdict. We will address Defendant’s second assignment of error first for the reason that should Defendant’s second assignment have merit, the | ¡¡Defendant may be entitled to an acquittal; thus, the issue of an excessive sentence would be moot. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1980).

Defendant’s second assignment of error is that the evidence was insufficient to support a verdict of guilty of distribution of a controlled dangerous substance. However, Defendant argues that the evidence was insufficient because the trial court improperly allowed the admission of the drugs and the admission of the video tapes of the drug transaction, in that the chain of custody of the items was not properly established prior to admission. The Defendant also alleges the trial court erred when it allowed the confidential informant’s testimony into evidence.

Initially, we note that Defendant may not complain of errors after the verdict unless he objected to the errors at the time of the ruling. Louisiana Code of Criminal Procedure Article 841(A) provides:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exception to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

See also State v. Schmidt, 99-1412 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, writ denied, 00-2950 (La.9/28/01), 798 So.2d 105, cert. denied, 535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002). A review of the trial transcript reveals that the Defendant did not object to the admission of the drugs or the video tapes showing the drug transaction. After the State offered these items into evidence, the trial court asked the Defendant if he had any objections, and in each case the Defendant answered “no.” Moreover, Defendant did not object to the confidential informant’s testimony and had the opportunity to cross examine her, which he did extensively. Therefore, we will not address the issue of whether the trial court improperly admitted into evidence the drugs, the video tapes, and the confidential informant’s testimony. ■

• 1 (¡Defendant asserts that the evidence was insufficient to support the verdict. Defendant’s argument is based on the conclusion that the above described evidence was improperly admitted. However, he cites standard sufficiency of the evidence case law. We will review the evidence admitted at trial with the following understanding:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982).

State v. Addison, 97-1186, p. 7 (La.App. 3 Cir. 3/6/98), 717 So.2d 648, 651, writ denied, 98-938 (La.9/4/98), 723 So.2d 955.

At trial, Detective Ben Perkins, a narcotics investigator with the Allen Parish Sheriffs Office, testified that on May 7, 2002, he contacted Tajuana Gallington, who at the time was working undercover for the Allen Parish Sheriffs Office as a confidential informant. At approximately five o’clock in the afternoon, they met at an undisclosed location. Detective Perkins searched Gallington and her vehicle for drags. He then installed three video cameras in her car and wired her for audio pick-up. The detective gave Gallington eighty to a hundred dollars in cash and four clear plastic vials and instructed her to place any drugs she purchased into the vials, one vial for each purchase. When she returned approximately an hour later, the detective took two vials from her glove compartment where she had placed them after the purchases. He then debriefed her, and together they viewed the video tapes of the two drug transactions, one of which was a purchase of two rocks of crack cocaine from the Defendant.

Tajuana Gallington testified that on May 7, 2002, after meeting with Detective Perkins, she drove to. her apartment where, while standing outside the apartment door, |4she placed a call to the Defendant and arranged for a buy from him. After she arrived at the Defendant’s apartment, he came outside and got into the car. Gall-ington testified that she purchased two rocks of crack cocaine from the Defendant and gave him forty dollars in exchange for the drags. She put the rocks into one of the vials given to her by Detective Perkins and placed the vial into the glove compartment of the vehicle.

The State submitted the vial containing the rocks of cocaine and the tapes of the purchase of the drugs from the Defendant into evidence. The jury reviewed the tapes showing the Defendant giving Gall-ington the two rocks in exchange for forty dollars.

The Defendant attacked Gallington’s credibility on cross-examination. Galling-ton admitted that she had used drugs in the recent past and had spent time in prison in Texas for possession of methamphetamine and cocaine. Further, the Defendant put Kelvin Melbert on the stand who testified that approximately five months after Gallington purchased the drugs from the Defendant, he encountered her smoking crack cocaine with a girlfriend. He testified that the girlfriend wanted to purchase more drugs from him. He stated that when he went to his car to retrieve the drugs, Gallington followed him and stabbed him in the neck. On cross-examination of Gallington, she testified that Melbert propositioned her and when she refused, they got into a pushing match which resulted in her stabbing him.

The jury believed her testimony even though Gallington admitted to drug use, a prior criminal history, and the stabbing incident. In State v. Freeman, 01-997, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580, this court held:

It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency | Revaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).

We find that considering the above testimony in a light most favorable to the prosecution, especially with the tapes of the drug transaction showing Defendant exchanging two rocks of crack cocaine for forty dollars, the evidence was sufficient to support the conviction for distribution of a controlled dangerous substance beyond a reasonable doubt. Accordingly, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 1

Defendant asserts that the sentence of twenty-five years at hard labor is excessive under the circumstances of his case. Defendant argues:

[A] twenty-five year sentence for the possession and distribution of two crack cocaine rocks weighting a total of .25 grams is excessive and grossly out of proportion to the severity of the crime and makes no measurable contribution to the acceptable goals of punishment and is purposeless imposition of pain and suffering. He also contends that the twenty-five year sentence is grossly disproportionate to the seriousness of the offense so as to shock our sense of justice.

This court held in State v. Planco, 96-812, p. 8-9 (La.App. 3 Cir. 3/26/97), 692 So.2d 666, 670:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment,” and a sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527 So.2d 601 (La.App. 3 Cir. 1988). If a reviewing court finds that a penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering then that sentence is excessive. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989).

On review, it is not whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

| (¡Defendant was convicted of distribution of a controlled dangerous substance, schedule II, in violation of La.R.S. 40:967(A)(1). Louisiana Revised Statutes 40:967(B)(1) provides for a term of imprisonment of not less than two years nor more than thirty years. Defendant was sentenced to twenty-five years.

At the sentencing hearing, the trial court stated:'

I’ve thought about this ever since your trial about what I was going to sentence you to. And there’s really no nice way to say this to you, other than you’re a career criminal. For the past fifteen years, you have engaged in criminal conduct which has resulted in numerous convictions. So the Court describes you as a person who has absolutely no regard for the law. You have absolute disrespect for the law and you have no regard for the rule of law in our society. And the law cannot permit that and that’s exactly what a sentence is required to do. In this, your most recent crime, you’ve been convicted of distribution of cocaine, which in the Court’s opinion, is one of the most corruptive crimes that there is. Drugs in our society destroy neighborhoods. In fact, look what it has done in your neighborhood, Bowman-Hicks. It is a crime that cause people to rob, to steal, to murder and engage in all other criminal acts in order to support their habit. It kills people from the inside. It kills their souls because people will do anything to support their habit. And even though in this instance, you were found guilty of distribution of only two rocks. — I use that term only in a very relative sense because you were only caught distributing two rocks in this particular case. However, from your criminal history, the Court can only imagine how many other rocks of crack cocaine you have distributed.

To support his contention that his sentence of twenty-five years is excessive, Defendant relies on State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, wherein Johnson was initially sentenced by the trial court to thirty months imprisonment for possession of marijuana and cocaine. The trial court noted that it was departing from the mandatory minimum sentence of twenty years. The supreme court reviewed the case and remanded the matter to the trial court with instructions that Johnson was to |7be resentenced to at least the minimum sentence of twenty years as mandated by La.R.S. 15:529.1, as the court found that the defendant failed to show that the statutory minimum sentence was excessive.

Defendant, in the instant case, asserts that Johnson stands for the proposition that twenty years imprisonment for a small amount of cocaine is unconstitutional, particularly when a defendant’s prior criminal history was nonviolent, as, presumably, is his prior criminal history. Johnson, a four-time felony offender, was sentenced- under the Habitual Offender Law. The Louisiana Supreme Court noted in Johnson that the nonviolent nature of a defendant’s past crimes does not necessarily justify a presumption of unconstitutionality of a sentence.

We find Johnson is inapplicable to the present case. The supreme court’s review of the twenty-year minimum sentence was for a determination of whether less than twenty years was justified. The supreme court found a lesser sentence was not justified. The supreme court instructed the trial court to impose a sentence of “no less than the minimum required under the Habitual Offender Law....” Johnson, 709 So.2d 678. The court did not find that a sentence of more than twenty year’s would be inappropriate. Thus, the supreme court left open the issue of whether a sentence of more than twenty years would be excessive.

We find that the Defendant fails to establish that the trial court abused its considerable discretion when it sentenced the Defendant to twenty-five years at hard labor for the crime of distribution of a controlled dangerous substance. Defendant also failed to establish that the punishment in his case was so disproportionate to the crime committed as to shock this court’s sense of justice. Accordingly, this assignment lacks merit.

CONCLUSION

The Defendant’s conviction and sentence are affirmed.

^AFFIRMED.

      . Although the trial court did not order a pre-sentence investigation report, the record before this court shows that Defendant has been arrested seventeen times since 1986, resulting in twenty-six charges, not including the current arrest and charge. The record shows that Defendant was convicted of distribution of a controlled dangerous drug in 1998 and sentenced to five years at hard labor. Furthermore, the record indicates that Defendant was arrested again in 2001 on two counts of distribution of cocaine. No disposition of the 2001 charges are shown.


author: JjMAX N. TOBIAS, JR., Judge. 11 MURRAY, J.,

text:
    Robert B. KEATY, Thomas S. Keaty and Keaty and Keaty v. Roy A. RASPANTI. Robert B. Keaty, Thomas S. Keaty and Keaty & Keaty v. Roy A. Raspanti.
    Nos. 2003-CA-1080, 2003-CA-1499.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.
    Rehearing Denied March 15, 2004.
    See also 769 So.2d 1175.

      John C. Anderson, Fenet & Anderson, Baton Rouge, LA, for Thomas Keaty, Plaintiff/Appellee.
    David S. Daly, Allen & Gooch, Metairie, LA, for John S. Keller, Plaintiff/Appellee.
    Roy A. Raspanti, and Joseph P. Raspan-ti, Metairie, LA, and Thomas E. Gibbs, Baton Rouge, LA, for Roy Raspanti, Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, JR.).
   JjMAX N. TOBIAS, JR., Judge.

In these consolidated cases, the appellant, Roy A. Raspanti (“Raspanti”), appeals from the judgment of the trial court, which awarded him the sum of $34,605.08 as sanctions against Thomas S. Keaty (“Thomas Keaty”). (2003-CA-1499). In addition, Raspanti appeals; from a second judgment that dismissed his motion to fix sanctions against appellee, John S. Keller (“Keller”), attorney for Thomas Keaty. (2003-CA-1080). After a review of the record and applicable law, we amend the judgment and affirm as amended.

The procedural history leading up to this dispute between Robert B. Keaty and Thomas S. Keaty (hereinafter “the Kea-tys”) and Raspanti began in 1985 when Connie Byrd retained the Keatys’ services, on a contingency basis, in connection with the severe personal injuries received by her then-minor son, Gregory Byrd.

Suit was subsequently filed on that claim in the 26th Judicial District Court for the Parish of Bossier against the Bossier School Board (“school board”), RPellerin Milnor Corporation (“Pellerin Milnor”), and Pellerin Laundry Machinery Sales Company, Inc. On 28 March 1987 Pellerin Milnor settled, and the matter proceeded to trial against the school board.

The trial court ruled in favor of' the school board and the Keatys filed a notice of appeal. Because of a dispute on the fees owed to the Keatys, the Byrds hired attorney John Litchfield to negotiate with the Keatys. As a result, the Byrds and the Keatys entered into a compromise agreement and Litchfield notified the Kea-tys, in writing, that they were discharged as attorneys for the Byrds. Raspanti was substituted as the Byrds’ attorney, and the Keatys filed an intervention in the Bossier Parish suit seeking additional attorney’s fees should the appeal against the school board be successful.

On 10 May 1988, the Second Circuit Court of Appeal reversed the judgment in favor of the school board and remanded the case. The school- board subsequently settled, and Raspanti collected his contingency fee on that settlement as per his contract with the Byrds. In July 1991, the trial court dismissed the Keatys’ intervention on a motion for summary judgment. The court reasoned that the 3 December 1987 compromise between the Keatys and the Byrds settled all fee disputes, not just those relating to the claim against Pellerin Milnor. That judgment, although appealed, was dismissed as untimely by the Second Circuit and the Supreme Court denied an application for supervisory writs.

In November 1991 and February 1992, the Keatys sued Raspanti in Civil District Court for the Parish of Orleans, seeking a portion of the attorney’s fees collected by Raspanti. The November suit alleges tor-tious interference with contract and unjust enrichment, while the February suit seeks an apportionment of the attorney fees on a quantum meruit basis. In response, Ras-panti filed exceptions |3of prescription, no cause of action, res judicata, and a motion for summary judgment. All were denied at the trial level and this court denied an application for supervisory writs to review the trial court judgment.

In May 1996, Raspanti reurged his motion for summary judgment making the additional argument that once the Keatys were denied additional fees from the Byrds by the district court in Bossier Parish, they could not recover additional fees from him. In support, Raspanti pointed to prior admissions made by the Keatys that the source of their claim was the contract with the Byrds and that they had no contract with Raspanti. The trial court framed the issue as “[W]hen does a ruling of another court on a similar issue pre-elude the Court from deciding it again [?[?] ” The court then granted Raspanti’s motion for summary judgment, concluding that the Keatys had compromised their claim to future attorney’s fees and that the Bossier Parish district court had already rejected their claim for additional fees, albeit the claim was against the Byrds. Although the Keatys appealed, the judgment of the trial court was affirmed. See Keaty v. Raspanti 96-2839 (La.App. 4 Cir. 5/28/97), 695 So.2d 1085, writ denied, 97-1709 (La.10/13/97), 703 So.2d 614.

Thereafter, Raspanti filed a motion for sanctions against Keaty, which the trial court dismissed pursuant to exceptions of res judicata and prescription. This Court reversed and remanded the case to the trial court after finding the following:

We find that the Keatys knew and must have known all along that their claim for tortious interference had prescribed. We find that the Keatys knew that all of their claims against the Byrds were disposed of in the Bossier Parish proceedings. We find that the Keatys did not reasonably rely on Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978), in asserting a claim against Raspanti. We find that the Keatys’ answers to Raspanti’s request for admissions, in which they denied |4the non-existence of a contract between them and Raspanti, was disingenuous. We find that the entire proceedings by the Keatys against Raspanti was [sic] knowingly without foundation, crafted for purposes of harassment and carried out in a manner designed to deliberately prolong the proceedings needlessly.

Keaty v. Raspanti, 2000-0221, p. 8 (La.App. 4 Cir. 2/7/01), 781 So.2d 607, 612. Consequently, we remanded the matter to the trial court to determine the amount of sanctions.

Upon remand, the trial court held an evidentiary hearing and, on 9 June 2003, entered judgment against Thomas Keaty, awarding Raspanti the sum of $34,605.08, together with judicial interest from 27 June 1997, and all costs from 8 November 2002 until the date of judgment. Raspanti contends that the trial court erred and should have awarded him fees and costs in the amount of $132,068.35, with judicial interest from 29 May 1992, the date the first motion for sanctions was filed.

Article 863 of the Louisiana Code of Civil Procedure provides in pertinent part:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well | ^grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
* * *
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.

Once a violation of La. C.C.P. art. 863 is found and sanctions are imposed, the determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the “abuse of discretion” standard. Connelly v. Lee, 96-1213, p. 4 (La.App. 1 Cir. 5/9/97), 699 So.2d 411, 414, writ denied, 97-2825 (La.1/30/98), 709 So.2d 710. Article 863 authorizes an award of “reasonable” and not necessarily actual attorney fees. The goal to be served by imposing sanctions is not wholesale fee shifting, but correction of litigation abuse. Joyner v. Wear, 27,631, p. 14 (La.App. 2 Cir. 12/6/95), 665 So.2d 634, 642, writ denied, 96-0040, 96-0042 (La.2/28/96), 668 So.2d 370.

Four factors have evolved which must be considered in arriving at an appropriate sanction award. They are: (1) What conduct is being punished or is sought to be deterred by the sanction? (2) What expenses or costs were caused by the violation of the rule? (3) Were the costs or expenses “reasonable” as opposed to self-imposed, mitigatable, or the result of delay in seeking court intervention? (4) Was the sanction the least severe sanction adequate to achieve the purpose of the rule under which it was imposed? Butler v. Reeder, 98-484, p. 14 (La.App. 5 Cir. 12/29/98), 728 So.2d 888, 895, writs denied, 99-1026, 99-1035 (La.5/28/99), 743 So.2d 673, 674.

Applying these factors to the case before us, we find that the trial court abused its vast discretion in awarding only $34,605.08 to Raspanti. In reviewing the transcript of the proceedings, we find that the trial court inappropriately considered a factor no longer at issue, namely, whether the Keatys bore all responsibility for the frivolous litigation. The trial court was bound by our findings of fact rendered in Keaty, 2000-0221, and we also reject the trial court’s statement that “the system” was in any way at fault for the Keatys’ ability to file ■ and maintain spurious and harassing litigation against Raspanti.

The trial court obviously felt sorry for Keaty when rendering its decision when it stated:

But my job is to make a judgment in this case. And I feel for both sides in this case, not one more than the other but both sides have had problems. Of course, you might say that the Keatys brought all of this upon themselves way back when they lost the faith of the Byrds.

It is evident from the trial court’s comments that it did not find Thomas Keaty entirely at fault for his actions; in fact, the trial court also blames Raspanti for what occurred. For these and other reasons discussed further in this opinion, we find the trial court abused its discretion in the awarding of sanctions of only $34,605.08.

We note that the vast amount of attorney’s fees expended in defending the lawsuit and pursuing the motion for sanctions were incurred by Raspanti himself. Although not raised by Thomas Keaty, we note that jurisprudence exists in this circuit that holds that an attorney cannot recover an attorney’s fee for representing 17himself. See Westenberger v. Bernard, 160 So.2d 312, 314 (La.App. 4 Cir.1964). However, we decline to follow this case for several reasons.

First, Westenberger relies on the Louisiana Supreme Court case of Ealer v. McAllister & Co., 19 La. Ann. 21 (La.1867) for the proposition that “[w]hen an attorney brings a suit in his own name, he cannot recover counsel’s fees.” However, Ealer makes no such holding. The Court stated as follows:

The claim or right urged in this Court, by [plaintiff] George G. Ealer, to recover counsel fees for obtaining judgment and realizing the money in this suit, as agent of Henry A. Ealer, is inconsistent with his pleadings and position he occupies as against [defendant] Jones. He sued, and has contested throughout the litigation, as principal and owner; has denied that Henry A. Ealer has any interest, and persistently resisted the efforts of Jones to obtain the money belonging to Henry A. Ealer. He cannot, in the same proceedings, claim to be the owner and the agent of the owner of the same thing.

A second reason not to follow Westen-berger is that it involved an attorney as plaintiff bringing suit in his own name. In the instant case, Raspanti was the defendant and was forced to expend his time defending a frivolous lawsuit, as well as pursuing sanctions clearly provided for in La. C.C.P. art. 863.

Third, it is well recognized in the jurisprudence of this state that as a general rule, attorney’s fees are not allowed except when authorized by statute or contract. Killebrew v. Abbott Laboratories, 359 So.2d 1275, 1278 (La.1978). The starting point in the interpretation of any statute is the language itself. Riddle v. Bickford, 2000-2408, pp. 9-10 (La.5/15/01), 785 So.2d 795, 802. We note that the statute makes no distinction between one represented by counsel and a pro se litigant. |s Thus, there is no reason to distinguish between the attorney’s fees generated by Raspanti and the attorneys working on his behalf, as long as the fee is reasonable.

Fourth, we note the holding in Hoskins v. Ziegler, 506 So.2d 146 (La.App. 4 Cir. 1987), where this court held that an attorney representing himself as plaintiff for collection of an open account for his attorney’s fee was entitled to recover reasonable attorney’s fees pursuant to La. R.S. 9:2781. La. R.S. 9:2781 is a special statute that allows the recovery of reasonable attorney’s fees when a debtor fails to pay to the creditor the debt owed upon an open account. By analogy, La. C.C.P. art. 863 is a special statute that allows a person to recover a reasonable attorney’s fee from the person who files frivolous pleadings.

Finally, we recognize that the purpose of article 863 is to deter frivolous litigation. To hold that an attorney who must defend himself or herself cannot recover reasonable attorney’s fees, including his or her own lost time and expenses in defending himself or herself, would frustrate the purpose of the statute and possibly reward those who persist in maintaining litigation such as that found in this case.

After reviewing the record and exhibits that itemize the work performed defending Raspanti from the suit against him and in prosecuting his motion for sanctions, we find that Raspanti is entitled to recover the sum of $107,605.95. This amount is itemized as follows:

Joseph Raspanti $ 7,731.25
Bill Cherbonnier $ 9,887.12
Roy Raspanti $77,298.25
^Stephen Babin $ 762.50
Bruce Danner $ 1,053.00
Thomas Gibbs $ 6,500.00
Paralegal $ 660.00
Costs $ 3,713.83

We agree with the trial court’s awards with respect to the attorney’s fees of Thomas Gibbs and Joseph Raspanti. In addition, we find no abuse of discretion in the trial court’s award for the paralegal expenses and costs. However, we find that the trial court abused its vast discretion in several other instances.

First, we address the statement of the trial court that more than one attorney was working on the file at the same time. We know of no law that precludes the practice; in fact, such is often the case. We have reviewed the various invoices and do not find an abuse with regard to “double billing.” Thus, we find that the invoice from Stephen Babin ($762.50), who represented Raspanti in connection with Thomas Keaty’s last minute bankruptcy attempt, is supported by the record.

We next address the invoice of Bruce Danner ($1,053.00), who represented Raspanti at the October 2002 hearing on the motion for sanctions. Danner’s invoice for services rendered is attached as an exhibit to Raspanti’s brief. This situation, however, is different from that of Laborde’s, discussed supra at n. 7. Obviously, it was impossible for Raspanti to introduce Danner’s invoice into the record at the time of the hearing. We have reviewed his invoice and find that it is reasonable and well supported by the record as reflected by the transcript of the hearing. We find that the trial court abused its discretion by failing to account for Dan-ner’s services when rendering the judgment.

I mThe trial court also disallowed the attorney’s fees of Bill Cherbonnier, who represented Raspanti for about one year. Cherbonnier was retained after Joseph Raspanti told Roy Raspanti that he needed assistance in obtaining subpoenas and certain bank records of the Keatys. Cher-bonnier was initially consulted in September 1994, enrolled as counsel of record on or about 1 February 1995, and attended a status conference with the court on 8 February 1995. A motion to disqualify Cher-bonnier was subsequently filed on 7 July 1995; the motion was granted in October of that year.

The memoranda in the record, both in support of the motion and in opposition thereto, reveal that Cherbonnier was a member of a law firm that had represented Keaty & Keaty in unrelated matters some six years earlier. Cherbonnier was not involved in those cases, although it was alleged that he had knowledge of confidential information adverse to the Keatys’ interests. While we are not called upon to determine whether the trial court correctly granted the motion to disqualify, we do not find any authoritative legal support to deny Raspanti’s claim to recover as sanctions the amount he paid for the work performed by Cherbonnier. Consequently, we find that the trial court abused its discretion by disallowing the fees.

Finally, we turn to the four separate statements submitted by Raspanti, three of which are contained in the record and the fourth is included in his appellate brief. The three statements in the record are as follows: (1) Exhibit 5 in the amount of $59,353.25 for work performed from 11/14/91 to 6/14/01; (2) Exhibit 6 in the amount of $11,729.00 for work performed from 6/14/01 to 6/13/02; and (3) Exhibit Ivi7 in the amount of $6,216.00 for work performed from 6/24/02 to 10/16/02, for a total of $77,298.25. The trial court reviewed these three statements and awarded only $16,000.00, stating:

Then we come to Mr. Raspanti’s participation. Reviewing the exhibits, he participated fully and alone, you might say, in '91 and '92, when the matter was originated initially. And looking back in hindsight, this matter should have been resolved back in '91 and '92, So, it’s not all the opposition’s fault. It’s the system’s fault in a way with hindsight. And then after that, I came into the case, his brother was the chief counsel, and then Mr. Gibbs came in.
In fairness to the situation, I feel that an award of $16,000 for his fees would be proper.

We find that the trial court improperly relied on an irrelevant issue, namely, that the matter could have been disposed of many years earlier. We have already held that the Keatys had carried out the proceedings “in a manner designed to deliberately prolong the proceedings needlessly.” Keaty, supra, 2000-0221 at p. 8, 781 So.2d at 612. While we acknowledge that the present predicament is, in part, the product of the district court’s repeated failure to recognize that the claim asserted by the Keatys was prescribed, that does not excuse or mitigate the Keatys’ presentation of the unfounded action. This Court found that they knew from the outset that their claim was prescribed. Consequently, the Keatys must accept full responsibility for the acts taken that violated La. C.C.P. art. 863. Finding that the trial court abused its discretion in awarding only $16,000.00, we hold that Raspanti is entitled to recover the full amount of his fees as reflected in Exhibits 5-7.

However, we cannot award Ras-panti his attorney’s fees incurred on appeal in the amount of $13,847.25 as article 863 sanctions. ‘We believe that the authority to impose art. 863 sanctions is limited to the trial court.” Hampton v. Greenfield, 618 So.2d 859, 862 (La.1993). Thus, it would be improper for this li ¡.court to look beyond the record and award sanctions under La. C.C.P. art. 863. Id.

Consequently, we amend the judgment to award sanctions in the total amount of $107,605.95. This Court has previously found that the conduct being punished was deliberate, knowingly without any foundation and crafted for the sole purpose of harassment. As a result of the article 863 violations, Raspanti was forced to incur vast costs and expenses, which are amply supported by the record before us, and which would not have been necessary but for the Keatys’ wrongful conduct. We also find that the costs and expenses were reasonable in light of the fact that this matter took over eleven years to complete. In Borne v. New Orleans Health Care, Inc., 616 So.2d 236 (La.App. 4 Cir.1993), the law firm of Middleberg, Riddle & Gianna (“Middleberg”) was forced to defend an unsupported suit for defamation filed in April 1989. After the trial court granted Middleberg’s motion for summary judgment on 28 September 1990, the law firm filed a motion for sanctions. On 10 January 1992, the trial court granted Middle-berg’s motion for sanctions and entered judgment for $82,047.84 in sanctions. The award represented $52,047.84 for attorney’s fees incurred from the filing of suit until the granting of summary judgment, and $30,000.00 for fees incurred from the granting of summary judgment through its appeal, and for those fees incurred for prosecuting the motion for sanctions. This Court found that the assessment of sanctions in the amount of attorney’s fees incurred by Middleberg was supported by the record and was not an abuse of the trial court’s discretion. Id. at 239.

Finally, we find that the sanction that we impose is the least severe sanction adequate to achieve the purpose of the rule under which it was imposed. This was li3not a one-time violation of article 863. Instead, this was a concerted course of conduct that took place over many years. Thus, we amend the judgment accordingly.

Raspanti also assigns as error the trial court’s decision to award judicial (legal) interest from 27 June 1997, the date the second, and successful, motion for sanctions was filed, and not from 1 May 1992, the date that the first motion for sanctions was filed.

Regardless of the reasons under which the first motion for sanctions was denied, we find no error on the part of the trial court in awarding interest from the date the successful motion for sanctions was filed. This court has already compared a motion for sanctions under La. C.C.P. art. 863 to a tort action by applying a one-year prescriptive period to the cause of action. See Keaty, 2000-0221, p. 4, 781 So.2d at 610. According to La. R.S. 13:4203, “[l]egal interest shall attach from date of judicial demand, on all judgments, sounding in damages, “ex delicto”, which may be rendered by any of the courts.” However, because a judgment in Raspan-ti’s favor did not result from the 1992 motion, it would be inappropriate to award legal interest from its filing date. Consequently, that portion of the judgment is affirmed.

Finally, Raspanti asks that we reverse the trial court’s judgment that granted the exceptions of res judicata and prescription filed by Keller in response to the motion to fix sanctions filed by Raspanti against him in June 2001. Raspanti argues that the judgment should be set aside and the matter remanded so that the trial court may determine an appropriate award for violation of La. C.C.P. art. 863. In response, Keller maintains that Raspanti did not follow the procedures | Urequired by La. C.C.P. art. 863 and its jurisprudence; consequently, the exceptions were properly granted.

In connection with this assignment of error, Raspanti has filed a motion to supplement the appellate record with a 12 February 1998 rule to show cause why the Keatys and Keller should not be ordered to pay sanctions under La. C.C.P. art. 863. While a stamped copy of the rule to show cause is attached to the motion, the original is missing from the record. Raspanti contends that the pleading demonstrates that a timely motion was filed against Keller.

Although we hereby grant the motion to supplement the record, we deny the relief sought by Raspanti. While the record, as supplemented, now demonstrates that a motion to assess sanctions against Keller was timely filed by Raspanti, the record does not reflect whether Keller was served with the rule to show cause and/or that he filed a response, thereby making an appearance.

We note that La. C.C.P. art. 2132 provides that a record on appeal that omits a material part of the trial record may be corrected on appeal by order of the appellate court, which has been done herein. However, we find that the record has not been supplemented in such a way to permit us to render a decision on this issue. As the appellant, Raspanti bears the burden of proving that the trial court erred in its judgment of dismissal. This he cannot do on the record before us. Consequently, we find the assignment of error to be without merit.

Based on the foregoing, we amend the judgment in favor of Raspanti and against Keaty and render judgment in the amount of $107,605.95, together with h ¿legal interest thereon from 27 June 1997 until paid. All costs of this appeal are assessed against Keaty. In all other respects, the judgment is affirmed.

MOTION TO SUPPLEMENT RECORD GRANTED; JUDGMENT AMENDED; AFFIRMED AS AMENDED.

ARMSTRONG, C.J., concurs in the result reached by the majority.

MURRAY, J., concurs in part, dissents in part with reasons.

11 MURRAY, J.,

concurs in part, dissents in part with reasons.

Because I do not find the trial court abused its discretion in awarding sanctions, I would affirm the judgment of the trial court in its entirety.

The jurisprudence has interpreted La. C.C.P. art. 863 as mandating the imposition of sanctions once the court determines that an Article 863 violation has occurred. See Derouin v. Champion Ins. Co., 580 So.2d 1043, 1046 (La.App. 3 Cir.1991). In our earlier decision in this case, this court found an Article 863 violation had occurred and remanded the matter for a determination of the appropriate sanction. On remand, following an evidentiary hearing, the trial court articulated detailed reasons for discounting the various attorney’s fees and costs Mr. Raspanti claimed, and calculated the appropriate sanction to be $34,605.08 ($30,891.25 in attorney’s fees and $3,713.83 in costs).

On appeal, Mr. Raspanti argues that the trial court abused its discretion in failing to award the full amount of attorney’s fees and costs he documented, which ^totaled $132,068.35. He further argues that this court should also award him expenses ($660) and attorney’s fees ($13,847.25) for this appeal, bringing the total sanction amount to $144,866.55. Mr. Keaty does not challenge the amount of the sanction.

Appellate courts review a challenge to the amount of sanctions awarded by the trial court using the abuse of discretion standard. Dubois v. Brown, 2001-0816, p. 4 (La.App. 1 Cir.5/10/02), 818 So.2d 864, 866, writ denied, 2002-1654 (La.10/14/02), 827 So.2d 421. In this appeal, the majority has determined that the trial court abused its great discretion in assessing only $34,605.08 in sanctions. In making this determination it finds that the trial court improperly considered whether the Keatys bore sole responsibility for the litigation. As the majority notes, the court did express sympathy for all parties to this litigation and stated that, to some extent, the “system” was a contributing factor. However, I respectfully disagree with the conclusion that these gratuitous statements, in the context of the court’s articulated reasons for its award of sanctions, mandate a finding that the amount awarded was an abuse of the court’s vast discretion.

In deciding whether the trial court abused its discretion we are guided by the language of the statute, which states that an appropriate sanction “may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.” La. C.C.P. art. 863(D)(emphasis supplied).

Construing the term “reasonable” in this context, Justice (then Judge) Knoll has stated that “reasonable” does not necessarily equate to actual fees and expenses and that “[t]he ‘reasonableness’ finding must also include the [Article’s] goals of deterrence, punishment, and compensation.” Derouin, 580 So.2d at 1046.

Similarly, in construing the parallel federal provision (Rule 11), a federal court has reasoned that, because a trial court is required to select the least severe ^sanction appropriate to accomplish the Rule’s purpose, “a monetary sanction should never be based solely on the amount of attorney’s fees claimed by the injured party, even where a court determines that the amount of the sanction should equal the fees claimed by the injured party.” In re Kunstler, 914 F.2d 505, 523 (4th Cir.1990). Continuing, the court noted that “[b]eeause the amount of a monetary sanction is not based solely on any claimed amount of attorney’s fees, [but rather on four factors enumerated herein,] ... the risk of an erroneous calculation based on fee statements is less troublesome in the context of a Rule 11 sanction than in attorney’s fees cases.” Id. Those four factors are: “(1) the reasonableness of the opposing party’s attorney’s fees; (2) the minimum to deter; (3) the ability to pay; and (4) factors related to the severity of the Rule 11 violation.” Id.

I find that logic compelling. In my opinion, we should focus on whether the award of attorney’s fees and costs was reasonable, keeping in mind that this is a claim for sanctions under article 863 and not an attorney’s fee case. To determine if the award was reasonable in light of the need to deter the conduct that gave rise to the imposition of sanctions we should consider the reasons articulated by the court with regard to the individual amounts claimed by Mr. Raspanti.

As to Mr. Raspanti’s claim for the $16,573.61 bill for Joseph Raspanti’s (his brother’s) attorney’s fees, the trial court discounted this bill by fifty percent and found that $7,731.25 was the appropriate amount to include in the sanction award. Although the trial court does not state why it awarded only fifty percent of the amount claimed, we note that Roy Raspanti testified that John Litchfield (the attorney who represented the Byrds to negotiate their fee dispute with the Keatys) paid half of this bill. Roy Raspanti further testified that Mr. Litchfield did this pursuant to an agreement that he would pay half of the costs of defending any suit to apportion fees.

14As to Mr. Raspanti’s claim for the $9,887.12 bill for Bill Cherbonnier’s attorney’s fees, the trial court totally disallowed this claim. At the hearing, it was disclosed that Mr. Cherbonnier was retained for a particular purpose — obtaining bank records — and that, despite the above agreement, Mr. Litchfield refused to pay half of Mr. Cherbonnier’s bill. Because Mr. Cherbonnier was disqualified, the trial court concluded that his fee should not be included in the sanction award.

As to Mr. Raspanti’s claim for the $10,000 bill for Thomas Gibb’s attorney’s fees, the trial court discounted this amount to $6,500. Although Mr. Gibbs did not itemize his time, the court stated that it personally could attest to Mr. Gibbs’s role as counsel of record and his active participation in the case during the periods 1995, 1996, and 1997.

Finally, as to Mr. Raspanti’s claim for his own attorney’s fees, which he claimed totalled $86,918.25 through October 25, 2002, the trial court found that “fairness to the situation” dictated an appropriate award for his fees was $16,000. In discounting that figure, the trial court, as Mr. Raspanti stresses, acknowledged that Mr. Raspanti’s fees were well documented and that Mr. Raspanti “spent much more time.” Nonetheless, the trial court reasoned:

We can’t let attorney’s fees rule in these type of sanctionable cases. The Court has to look at each case and see. Otherwise, its ipso facto. I mean, you could run up a million dollars in attorney’s fees without much trouble. And if it was ipso facto, that would be sanctiona-ble... And I’m not saying Mr. Raspan-ti didn’t do the work. But in many points in time, in reviewing the exhibits, there were three attorney meters running at the same time in some conferences; Mr. Gibbs, Mr. [Joseph] Raspan-ti, [and] Mr. [Roy] Raspanti.

As to the costs, the trial court likewise conducted a detailed review of the various items Mr. Raspanti documented and excluded certain items, stating:

The list of the costs, came up to $5,212.32. I’ve taken out the ticket for Jay Bachrach, $484 airline, hotel $600, the hotel of $502.18, the | ¡¡bankruptcy cost of $150. When you take those listed cost out, I come up with $2,966.53, plus the deposition cost that was not added in that list of cost of $747.30 for the Byrds deposition cost.

The trial court thus found the sanctionable costs totalled $3,713.83.

The trial court thus fixed the total amount of sanctions at $34,605.08. In reviewing the reasonableness of such an award, an important factor to consider is the trial court’s own knowledge of the facts. “The trial judge is in the best position to review the factual circumstances and render an informed judgment as he is intimately involved with the case, the litigants, and the attorneys on a daily basis.” Thomas v. Capital Security Services, Inc., 836 F.2d 866, 873 (5th Cir.1988); see also Rivet v. State, Dep’t of Transp. and Dev., 96-0145, p. 12 (La.9/5/96), 680 So.2d 1154, 1161 (listing “the court’s own knowledge” as a proper factor to consider in determining the reasonableness of attorney’s fees).

I cannot conclude that the $34,605.08 award by the trial court, which has actively overseen this case for a span of several years, was an abuse of discretion. This is especially so given the detailed reasons, discussed above, the trial court articulated for discounting the various amounts of attorney’s fees and costs Mr. Raspanti claimed.

For the above reasons, I respectfully dissent in part.

      . This matter originally involved Robert B. Keaty, Thomas S. Keaty, and the law firm of Keaty & Keaty, although it has been disputed that a law partnership ever existed between them. Later, Raspanti sought sanctions only from Robert B. and Thomas S. Keaty. Following his disbarment, see In re Keaty, 2000-1982 (La.9/29/00), 769 So.2d 1175, Robert B. Keaty filed for bankruptcy and all proceedings against him were stayed. Consequently, the judgment entered in Raspanti’s favor is against Thomas S. Keaty alone.

      . Gregory Byrd was 15 years of age at the time of the accident. Once he attained majority, Gregory Byrd became a party plaintiff.

      . The record demonstrates the reluctance of the trial court to hear Raspanti’s motion for sanctions. He obviously was of the opinion that the motion was unseemly as a dispute between two members of the bar. Nevertheless, whether unseemly or not, our law affords an aggrieved party the right to seek sanctions of another whose pleadings are not properly grounded in fact.

      . Raspanti also seeks expenses and reasonable attorney's fees for this appeal.

      . The trial court's belief that "the system” was partially at fault clearly affected the amount of sanctions imposed by the court for time spent by Raspanti as discussed further infra.

      . We note that to permit a lawyer to recover his or her fees for representing himself or herself in a case for article 863 sanctions, while not permitting a non-lawyer to recover the time and expenses that he or she has incurred while defending a sanctionable pleading, may seem unfair. That issue is not before us and is reserved for another day; however, we do not read article 863 as prohibiting a non-lawyer from recovering his or her lost time and expenses in an article 863 matter.

      . Although Raspanti asks this court to award $600.00 for the legal services of Gregory La-borde, we note that Laborde did not provide services until November 2002, after the hearing on the motion to fix sanctions. The bill from Laborde is not a part of the record, but instead is attached as an exhibit to Raspanti's brief. Accordingly, we cannot consider it.

      . In fact, the plaintiffs were represented by two different attorneys at the same time, John Keller and John deGravelles.

      . We note that a memorandum in support of the rule to show cause is part of the record on appeal.

      . There were three other attorneys who provided services to him and whose bills the trial court did not allow. Stephen Babin ($762.50), Gregory Laborde ($600), and Bruce Danner ($1,053). The trial court did, however, allow $660 for Mr. Raspanti’s paralegal’s fees.


author: J^CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. David WASHINGTON.
    No. 03-KA-1134.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2004.
    Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Roger Jordan, Assistant District Attorneys, Gretna, LA, for appellee.
    Bruce G. Whittaker, New Orleans, LA, for appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

Defendant appealed his conviction and sentence resulting from a guilty plea pursuant to State v. Crosby, 338 So.2d 584(La.1976).

For the following reasons, we reverse the denial of the motion to suppress and vacate the conviction and sentence.

FACTS

Officer Nathan Getts and Sergeant Stephen Imbragulio, narcotics detectives with the New Orleans Police Department, testified that, on May 31, 2002 they were members of a take down unit conducting surveillance at 806 Darensburg Street in New Orleans. Other investigating officers witnessed narcotics transactions from the residence and were in the process of obtaining a search warrant or gathering enough information to obtain a search warrant for the residence. That day, a surveillance officer observed a blue pickup truck approach the front of the residence. A passenger, later identified as defendant, exited the truck and entered the residence briefly and returned to the pickup truck. That information was relayed to Officer Getts and Sergeant Imbragulio by surveillance officers.

Subsequently, Detective Harry Stovall, driving an unmarked vehicle, followed the truck in response to the information given to him by the surveillance | .¡officer. Officer Getts and Sergeant Imbragulio, driving an enforcement vehicle, also followed, positioning themselves in order to conduct a take down investigatory stop of the truck. Officer Getts opined that reasonable suspicion for the stop existed because the ongoing narcotics investigation led them to believe defendant had just engaged in a narcotics transaction and that he could potentially compromise the investigation by making a phone call to the residence under surveillance. Office Getts and Sergeant Imbragulio, while in Orleans Parish, activated their vehicle’s lights and siren in order to stop the truck. The truck failed to initially stop and continued until it finally stopped in Jefferson Parish.

Sergeant Imbragulio approached the driver’s side of the truck and Officer Getts approached the passenger side. As Officer Getts approached, he observed defendant making furtive movements toward his waistband and bending downward. Officer Getts, concerned by the situation, instructed defendant to exit the vehicle. Likewise, Sergeant Imbragulio instructed the driver to exit the vehicle. As defendant was exiting the vehicle, two pieces of wrapped aluminum foil, which Officer Getts recognized as the packaging of street level heroin, fell to the ground. The contents of the aluminum foil subsequently tested positive for heroin.

Officer Getts instructed defendant to place his hands on the vehicle. Meanwhile, Sergeant Imbragulio placed the driver under arrest after having observed two tinfoil packets inside the vehicle on the floor board. As Officer Getts was securing defendant against the car, defendant looked over his left shoulder and told Officer Getts, “Look out behind you.” Officer Getts observed defendant move his hand to his waistband and, believing defendant was attempting to retrieve a' weapon, wrestled defendant to the ground. As defendant hit the ground, a Walther PPK semi-automatic weapon fell to the ground. Officer Getts then handcuffed defendant.

|4Sergeant Imbragulio subsequently notified the Jefferson Parish authorities. Officer Brandon Boylan of the Jefferson Parish Sheriffs Office, responded to the call. Officer Boylan then took defendant and the driver into custody and transported them to the Jefferson Parish Correctional Center. Officer Boylan got a statement from the defendant after obtaining a waiver of his constitutional rights.

On June 19, 2002, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, David Washington, with one count of possession of a controlled dangerous substance, to wit: heroin, in violation of La. Rs. 40:966(C) and one count of possession of a firearm by a convicted felon in violation of La. Rs. 14:95.1. On June 20, 2002, defendant was arraigned on the charges and entered a plea of not guilty.

On June 28, 2002, defendant filed various pretrial motions including a Motion to Suppress Confession, Identification, and Physical Evidence. A hearing on defendant’s motion to suppress was held on January 21, 2003 and February 4, 2003. The motion was denied. On February 20, 2003, he plead guilty to both counts of the indictment.

In accordance with his plea agreement, defendant was sentenced to ten years of imprisonment at hard labor on count one, possession of heroin, and ten years of imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on count two, possession of a firearm by a convicted felon. The sentences were ordered to be served concurrently with one another and concurrently “with the sentence resulting from any parole revocation which occurred while [defendant was] awaiting trial in this matter.” Thereafter, defendant filed a timely motion to appeal the trial court’s ruling on the pretrial motions pursuant to State v. Crosby, 338 So.2d 584 (La.1976). This appeal followed.

\ ¿DISCUSSION

Defendant argues the trial court erred in denying his motion to suppress because his actions of entering and exiting a residence under surveillance for drug activity, without more, did not provide officers with reasonable suspicion necessary to conduct an investigatory stop of the vehicle. The State responds that the police officers had reasonable suspicion to stop defendant because defendant exhibited suspicious behavior when-he entered a residence which was under surveillance for drug activity.

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.C.Cr.P. art. 215.1 and federal and state jurisprudence. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Hicks, 98-1231 (La.App. 5 Cir. 3/30/99), 733 So.2d 652.

Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the facts of each case by determining whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Belton, supra; State v. Rosales, 537 So.2d 850 (La.App. 5 Cir. 1989); State v. Hicks, 733 So.2d at 655. The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances “giving deference to the inferences and deductions of a trained police officer.” State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 101. This determination is | (jmade by analyzing whether the officer had sufficient knowledge of articulable facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. State v. Hartzheim, 93-631 (La.App. 5 Cir. 2/23/94), 633 So.2d 768.

In considering those circumstances, a reviewing court should give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). An officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes, are factors that may support reasonable suspicion for an investigatory stop. State v. Flagg, 01-65 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, 138-139, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159.

. In support of his position, defendant cites State v. Hartzheim, supra. In Hart-zheim, a United States Drug Enforcement Administration Agent received information from a confidential informant that a particular residence was involved in wholesale distribution and storage of heroin and that a large quantity of heroin was to be delivered by one of the residents on a particular day. Thereafter, surveillance of the residence was established. Two individuals exited the residence and entered a parked vehicle and drove away. Investigating officers followed and, after approximately five blocks, stopped the vehicle, Upon stopping, the driver of the vehicle fled on foot and the passenger was observed throwing a black plastic bag out of the window. The bag was later determined to contain two bags of heroin.

On appeal, this Court found that the police officers did not have reasonable suspicion to make an investigatory stop. The Hartzheim court noted that the information given by the confidential informant was so sparse that it was |7impossible to determine the veracity, basis of knowledge and reliability of the informant and the information given. Additionally, this Court noted the predictive aspect of the information was vague and the officers had not observed defendant acting in a suspicious or unusual manner.

Another case supporting defendant’s argument is State v. Sneed, 95-2326 (La.App. 4 Cir. 9/11/96), 680 So.2d 1237, writ denied, 96-2450 (La.3/7/97), 689 So.2d 1371. In Sneed, police officers received information from an untested confidential informant that wholesale heroin distribution was taking place at a certain residence. The police set up surveillance of the house that same day. Officers then observed the defendant stop his car and briefly enter the home before exiting and driving away from the house. Defendant was stopped by police and a subsequent search of the vehicle resulted in the seizure of nineteen -packets of heroin from under the seat. The Fourth Circuit held that police officers did not have reasonable suspicion to stop a defendant after he briefly visited a residence that was under surveillance for drug activity.

■ The - Fourth Circuit, in finding that police officers did not have reasonable suspicion to stop defendant’s vehicle, noted that the court had previously ruled that an individual’s mere presence at a residence about to be searched pursuant to a warrant does not establish “reasonable suspicion” under article 215.1 of the Code of Criminal Procedure. The court further reasoned that there was- no testimony that the area had a reputation for drug trafficking or that there had been a succession of brief visits to the house by other individuals. _ .

Conversely, in State v. Fontaine, 01-1291 (La.App. 4 Cir. 3/6/02), 814 So.2d 592, writ denied, 02-1114 (La.11/15/02), 829 So.2d 425, and State v. Smith-Holmes, 01-1810 (La.App. 4 Cir. 3/27/02), 815 So.2d 351, the defendants were observed behaving suspiciously and briefly entering and exiting a location that was under surveillance for drug activity. In both cases, officers conducting the |ssurveillance and observing the defendants’ behavior, radioed fellow officers and gave them a description of the defendants. Police officers then performed investigatory stops which ultimately led to the discovery of illegal narcotics.

In those cases, the Fourth Circuit found that, based on the totality of the circumstances, the officers had reasonable suspicion to stop the defendants. The court reasoned that defendants were seen coming and going from a location police knew to be a place of drug activity. The court also noted the defendants’ actions were similar to the actions of those persons who had previously been stopped and found to have drugs in their possession.

In Hartzheim and Sneed investigating officers based their stop solely on information received from a confidential informant without having that information verified by independent investigation. In this case, Officer Getts testified that investigating officers conducting surveillance witnessed prior narcotics transactions take place at the residence located at 806 Darensburg. In Fontaine and Smith-Holmes, the defendants were seen briefly entering and exiting the house which was known by police to be a place of drug activity, leading investigating officers to believe a drug transaction had taken place.

However, a defendant’s mere presence at a residence about to be searched pursuant to a warrant or near a high crime area, without more, does not provide the police with reasonable suspicion based upon articulable facts to make an investigatory stop. See, State v. Hill, 01-1372 (La.App. 5 Cir. 5/15/02), 821 So.2d 79, 84 and State v. Williams, 95-1971 (La.App. 4 Cir. 11/16/95), 665 So.2d 112. Unlike Fon-taine and Holmes-Smith, where the defendant’s actions, of briefly entering and exiting the residence under surveillance, fit the actions of others who had been found to have drugs or drug paraphernalia on them when stopped during the same surveillance period, there was no similar evidence introduced in the instant case. Further, neither Officer Getts nor Sergeant Imbragulio testified that |flthe officers conducting surveillance of the residence noticed defendant acting suspiciously or unusually aside from briefly entering and exiting the residence under surveillance for drug activity.

A review of the transcript reveals that very limited information was presented at the suppression hearing. Officer Getts testified that he was not part of the surveillance team, rather, his assignment was to stop any vehicles suspected of purchasing narcotics from the residence under surveillance. Officer Getts testified that the stop was made after the surveillance officer observed the truck stop in front of the residence, observed the passenger go into the residence, return a short time later, get back into the truck, and leave. At that point, another officer followed the truck based on the information that the surveillance officer believed that “the occupant inside that truck did take part in a narcotics transaction from that residence.” Later in his testimony, Officer Getts reiterated that the stop was made based on the surveillance officer’s observations. When Sergeant Imbragulio was questioned regarding the stop, he admitted that he had not observed any illegal transactions involving the defendant. We find that the State did not present evidence to show that Officer Getts and Sergeant Imbragu-lio had information sufficient to give them reasonable suspicion to stop the truck. The officers conducting the surveillance were not identified, nor were any details given to support the alleged narcotic activity. General statements without any specific facts are insufficient to support reasonable suspicion of criminal activity. Therefore, we are unable to conclude that defendant’s entering a residence and exiting to a waiting vehicle, standing alone, was enough to provide officers with reasonable suspicion to stop defendant. Accordingly, the denial of the motion to suppress the evidence is reversed and the conviction and sentence of the defendant are hereby vacated.

REVERSED; CONVICTION AND SENTENCE VACATED