author: | JETERS, J.

text:
    Bobby SLAYDON, et al. v. COLD SPRINGS HUNTING CLUB, INC., et al.
    No. 02-1397.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      William Alan Pesnell, Crowell and Owens, L.L.C., Alexandria, LA, for Plaintiffs/Appellants: Bobby Slaydon, Connie Welch, Wallace Martin.
    Elvin C. Fontenot, Jr., Attorney at Law, Leesville, LA, for Defendants/Appellees: Cold Springs Hunting Club, Inc., Board of Directors, Wayne West, Jerry Harvey, Ben West, J.C. Haymon, Marvin Massey, Alton Díame, Vic Trapp, Dale Nash, Jerry Funderburk.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   | JETERS, J.

This litigation began as an action against Cold Springs Hunting Club, Inc., a Louisiana nonprofit corporation, and its board of directors, individually and in their capacity as directors, by a few of its members, seeking injunctive relief and damages. Three of the original plaintiffs, Bobby Slaydon, Connie Welch, and Wallace Martin, have appealed the trial court’s rejection of their claims. For the following reasons, we reverse the trial court’s judgment which denied the appellants’ request for a permanent injunction. Additionally, we render judgment, granting the appellants’ request for a permanent injunction but rejecting their claims for damages.

PROCEDURAL HISTORY

On March 1, 2001, Bobby Slaydon, Connie Welch, John Jett, Jarrod Jett, Joseph Jett, Wallace Martin, Jason Martin, David Martin, Robert Martin, and Clinton Thompson filed a petition for injunctive relief against Cold Springs Hunting Club, Inc. (the Cold Springs Club) and its board of directors, Wayne West, Jerry Harvey, Ben West, J.C. Haymon, Marvin Massey, Alton Dalme, Vic Trapp, Dale Nash, and Jerry Funderburk. The basis of their claim for relief was that their membership in the Cold Springs Club had been improperly terminated by action of the board of directors for violation of a club rule relative to hunting deer with dogs. The plaintiffs asserted that the rule that the board of directors used to terminate their membership had been enacted in violation of the corporation’s bylaws. Additionally, the plaintiffs sought general monetary relief for the damages they suffered as a result of their membership being terminated.

The trial court issued a temporary restraining order on March 2, 2001, enjoining the defendants from terminating the plaintiffs’ membership and ordering the board of directors to accept their annual dues. After an April 10, 2001 hearing, lathe trial court issued a preliminary injunction, enjoining the board of directors from removing the plaintiffs as members of the corporation until it held a hearing to determine the plaintiffs’ membership status. The trial court signed a judgment to this effect on June 6, 2001. The board of directors held a hearing to address the membership issue and, after considering the comments expressed at the hearing, again terminated the plaintiffs’ membership in the Cold Springs Club.

There have been two trials on the merits in this matter, with the first occurring on September 25, 2001. At the beginning of the first trial, counsel for the plaintiffs announced that John, Jarrod, and Joseph Jett were withdrawing as party plaintiffs in the litigation. Following that trial, the trial court rendered judgment in favor of the defendants, rejecting the plaintiffs’ request for a permanent injunction and damages. The trial court signed a judgment to this effect on September 26, 2001. The plaintiffs appealed this judgment, and, in an unpublished opinion, a panel of this court vacated the judgment and remanded the matter to the district court for a new trial on the permanent injunction. Slaydon v. Cold Springs Hunting Club, Inc., 01-1577 (La.App. 3 Cir. 4/3/02).

After remand, the plaintiffs filed a supplemental and amended petition, asserting additional grounds for relief. This filing occurred on April 24, 2002, and the defendants answered the pleading on May 10, 2002. On June 4, 2002, the parties entered into a stipulated judgment, agreeing to the issuance of a preliminary | ¡¡injunction enjoining the defendants “from terminating the membership interests of the plaintiffs” in the Cold Springs Club and from enforcing the club rule at issue. The stipulated judgment further ordered that the hunting club “receive dues for both the 2001[sic]— 2001 and the 2001-2002 years from plaintiffs.”

The second trial on the merits occurred on September 6, 2002. At the beginning of trial, the parties stipulated that they would adopt the testimony and exhibits adduced at the September 25, 2001 trial as a part of the evidence to be presented and that the prior testimony and exhibits would be supplemented by the additional evidence that might be presented on that day. The stipulation further provided that the supplemental evidence would include, but not be limited to, “whether the corporate rule at issue in this matter affects the means and methods of taking game, and whether the corporate rule at issue had to be adopted by the membership of the corporation, and any other matters that plaintiff or defendant may present.”

On September 23, 2002, the trial court rendered written reasons for judgment, denying the plaintiffs’ request for a permanent injunction and damages. The trial court signed a judgment to that effect on September 27, 2002. The appellants, Slaydon, Welch, and Martin, have asserted the following assignments of error in their appeal:

1. The trial court committed an error of law and manifest error by holding that the rule [under which their membership was terminated] did not have to be voted on or was voted on by the membership of the Corporation.
2. The trial court committed an error of law and was manifestly | ¿erroneous in its ruling that [the provisions of La.R.S. 12:217] had not been violated and thus the rules were invalid.
3. The trial court committed both manifest error and an error of law by failing to invalidate [the rule at issue] because it is ultra vires in that it violates the corporate charter of the Corporation.
4. The trial court committed manifest error and an error of law by ruling that the [pjlaintiffs could be terminated for actions taken on land leased by a separate juridical entity to which they do not belong.

UNDISPUTED FACTS

While the two separate trials produced a significant amount of conflicting evidence, the testimony and exhibits in the record establish certain undisputed facts. In fact, most of the disputed facts do not affect the result in this litigation.

The record establishes, without question, that Cold Springs Hunting Club, Inc. was incorporated as a non-stock, single membership class, nonprofit corporation in April of 1991. Its articles of incorporation provide that its purpose is “to promote wildlife conservation, friendly relationships with land owners, safety, fellowship, and ethical hunting through club functions.” However, despite this high-sounding purpose, the corporation was formed basically as a hunting club. Concerning the powers of the board of directors, Article V, Section 2 of the articles of incorporation provides that “[t]he board of directors and officers shall control all functions and business of the Cold Springs Hunting Club, Inc.”

Initially, Article VIII of the articles of incorporation provided that a member could be removed from the membership rolls for failure to pay his or her dues and for any action that would reflect “dishonor and disgrace” on the corporation. Amendments to the articles of incorporation adopted at a membership meeting on February 21, 1995, deleted the provision in Article VIII which authorized the board |Rof directors to remove members in certain instances. Therefore, at the time of the action complained of in this litigation, the articles of incorporation provided no guidance concerning grounds for termination of membership.

On the other hand, and despite containing some apparent internal conflicts, the bylaws of the Cold Springs Club do provide some guidance in discerning the obligations of the membership, as well as the power of the board of directors in membership disputes. Article III, Section 9 of the bylaws provides:

Violations of a membership agreement by any member shall be acted upon by the Board of Directors and if deemed appropriate, said Board may cancel an individual membership or any specify [sic] other penalty. No money shall e[sic] returned for violation [sic] of membership agreement.

However, the record contains no evidence of the terms of any membership agreement. The only thing that resembles such an agreement is the annually promulgated camping and hunting rules provided to the membership prior to the beginning of each hunting season. These camping and hunting rules varied from year to year and established general rules of behavior, addressing such matters as camping locations, safety issues, construction of deer stands, and guests brought to hunt on the lease. Additionally, these rules specifically addressed certain aspects of harvesting the deer population.

Concerning the authority of the board of directors, Article IV, Section 1 of the bylaws provides that “[t]he government of the club and the direction of its work, internal affairs, and activities generally shall be vested in the Board of Directors herein referred to as the ‘Board.’ ” Additionally, Article IV, Section 7 provides:

The Board of Directors shall be and is hereby authorized to adopt such rules and regulations by Resolution as may be deemed advisable for the government of the Board; the proper conduct of business of the club, guidance and conduct of committees, officers, employees, caretakers,^j^overseers, and members, and generally the Board shall be empowered to do whatever in its judgment may be necessary to preserve the best interest of the club or calculated to increase the efficiency of the club and to carry out the main purpose of this organization.

The general power to remove members is now set forth in Article IV, Section 9 of the bylaws. That power does not correspond to the power previously granted by Article VIII of the articles of incorporation. Instead, Article IV, Section 9 limits the board’s authority to remove members to two specific situations, providing:

The Board of Directors shall have the power to expel or suspend, either temporarily or permanently, any member for violation of any bylaw, or any state or federal game law, but no members shall be suspended ore [sic] expelled without being given a hearing and an opportunity to be heard by the Board.

(Emphasis added.)

The bylaws also grant certain powers over the hunting activities to the membership. Specifically, Article III, Section 18 provides:

The membership of the Association shall have the right to set limits, seasons, hours, and means and methods of taking game from lands leased by the Association provided such action is not over and beyond the regulations as set by the Department of Wildlife & Fisheries.

(Emphasis added.)

In June of 1991, the Cold Springs Club entered into a lease with IP Timberlands Operating Company, LTD (IP), wherein it leased 5,922 acres of land for hunting purposes. Roads constructed by IP dissected the property, thereby creating subsections on which the club members could hunt.

In October of 1994, an additional 1,317 acres of land became available to the Cold Springs Club for hunting purposes through a lease with Boise Southern Company (Boise Southern). This land, which is adjacent to the leased IP land, is similarly dissected by company roads, and these artificially created subsections were |7used to establish specific hunting areas. However, the Cold Springs Club did not acquire the Boise Southern property in its name, but in the name of Ben West Hunting Club, Inc. (the Ben West Club), another nonprofit corporation incorporated in August of 1994. Wayne West, a member of the Cold Springs Club board of directors, testified that the Ben West Club was formed to lease the Boise Southern property because he had been informed that Cold Springs Club could not lease land in its name from another timber company as long as it was leasing land from IP. The Boise Southern lease was amended in May of 1999 to add 266 acres and again, at a later time, to add 1,852 acres. While the testimony is conflicting concerning when the various members of the Cold Springs Club became aware that the Boise Southern property was subject to a lease in the name of the Ben West Club, it is undisputed that the Cold Springs Club members treated the Boise Southern property as if it had been leased in the Cold Springs Club’s name.

The first reference to hunting with dogs appeared in the 1993-1994 hunting and camping rules. Those rules contained the following language:

21. The last 15 days of the open deer season will be open to dog hunting on the CSHC. One (1) guest per hunter will be allowed during open dog season.
22. All dog hunters must hunt together in one (1) group.

Sometime within the next three years, the fifteen-day limit disappeared from the annual camping and hunting rules, and the membership began using dogs to hunt deer at any time during the season.

The annually-promulgated camping and hunting rules permitted members to establish temporary camps on the leased property, subject to specific rules concerning [sthe camp operation. The 2000-2001 camping and hunting rules, the source of the current litigation, provided that there would be two permanent camps on the leased property — the Cold Springs Project Camp and the Sim-Self Camp. In the 2000-2001 rules, the board of directors attempted to further regulate the use of dogs during that hunting season through the following rule (hereinafter referred to as Rule 16):

16. There shall be two groups of dog hunters: (1.) Wayne West Camp, and (2.) Cold Springs Project Camp. There shah be NO EXCEPTIONS.

The Wayne West Camp is not located on IP or Boise Southern land, but on land owned by Wayne West and others. Neither the Cold Springs Club nor the Ben West Club have a lease on the property.

The board of directors attached an acknowledgment form to the 2000-2001 hunting and camping rules forwarded to the membership. The form contained a signature line for the member to sign, acknowledging that he had read and agreed to abide by the rules. It also contained an admonition that “[f]ailure to complete this form could result in termination of membership.” The record contains the signed acknowledgment forms of Connie Welch and Wallace Martin. However, in signing the form, each of these appellants added a hand-written objection to Rule 16. The record does not contain any evidence that Bobby Slaydon ever signed an acknowledgment form. All three appellants admit that, during the 2000-2001 hunting season, they violated Rule 16.

OPINION

In its reasons for judgment, the trial court stated the following:

At the outset, the court notes that all plaintiffs, except one, admitted violating Rule 16. They all contend Rule 16 is invalid since it deals with “means or methods of taking game” and was not voted on by the membership as required by the by-laws.
Rule 16 was adopted to limit the use of dogs for deer hunting ^purposes to two camps; (1) The Wayne West Camp and (2) Cold Springs Project Camp. The stated purpose of the two camp rule, according to various members who testified, was to have a means of control over where dogs were used, etc. as a safety measure. This was considered to be the safer method of using dogs rather than allow unfettered use of dogs considering the number of hunters that belonged to the club. Plaintiffs contend that this rule is one that deals with “means or methods of taking game”.
The court finds that Rule 16 is not a rule dealing with “means or methods of taking game”. The evidence showed that when the club was formed, dogs were not allowed to be used at all. Thereafter, the timber company which owned the land was asked to allow dogs. It agreed and the members voted to allow dog hunting. This approval by the members to begin using dogs, as opposed to not doing so earlier, was a rule dealing with “means or methods of taking game”. Whether or not to use dogs on the lease by the club clearly dealt with that issue.
However, thereafter, it became necessary to control just how dogs were to be used because of safety concerns. Rule 16 was a result of that concern. It does not deal with the broader question of whether dogs may be used or not, but rather under what conditions dogs will be used.
Since Rule 16 was not a rule that dealt with “means or methods of taking game”, it was not required that the rule be voted on by the membership. Thus, the contention of the plaintiffs that Rule 16 is invalid for that reason is not supported by the evidence and law.
Furthermore, testimony established that the decision to limit the use of dogs to two camps was voted on at a membership meeting. Thus, the court finds that Rule 16 was adopted by a vote, of the membership present at the meeting.
A review of the Articles of Incorporation for the club further supports the validity of Rule 16. Article IV deals with the makeup and authority of the Board of Directors. Specifically, Section 7 grants the power to the Board to adopt rules for a variety of reasons including “.... conduct of .... members, and generally the Board shall be empowered to do whatever in its judgment may be necessary to preserve the best interest of the club or calculated to increase the efficiency of the club ... ”.
Thus, it is clear that the Board of Directors could adopt Rule 16 without a vote of the membership as part of its authority under Article IV, Section 7.
Having concluded that Rule 16 is valid for the reasons stated and that the members were given their due process rights through the proper methods, the plaintiffs have failed to meet the required burden of proof for the issuance of the permanent injunction. The request is denied and the claim of plaintiffs dismissed. Cost of court are assessed against plaintiffs.

In their assignments of error, the appellants assert that the trial court committed both errors of fact and law.

A trial court’s finding of fact may not be set aside unless the court of appeal determines that the finding is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. at 844.

However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.

Evans v. Lungrin, 97-0541, 97-0577, pp. 6-7 (La.2/6/98), 708 So.2d 731, 735 (citations omitted).

Assignment of Error Number 1

In their first assignment of error, the appellants argue that the trial court erred in concluding that Rule 16 did not address the “means and methods of taking game” and that it was a safety measure not requiring approval by the membership. The appellants further argue that the trial court erred in concluding that the membership had approved Rule 16.

We disagree with the trial court’s conclusion that Rule 16 did not address the means and methods of taking deer. While Rule 16 certainly addressed safety concerns, it also regulated that portion of the hunting process which involved the use of dogs in the taking of deer. This is a means and method of the hunt.

Additionally, based on our review of the record, we agree with the appellants that the trial court erred in concluding that the membership approved Rule 16. While Jerry Harvey, the chairman of the board of directors, did testify that the decision to Ininclude Rule 16 had been made at a membership meeting held in 1996, he also testified that the board of directors adopted Rule 16 in May of that year to be effective for the 1996-1997 hunting season. However, the record clearly contradicts this testimony. The minutes of the annual meeting of the membership held on March 4, 1996, make no reference to such a vote, and the camping and hunting rules for 1998-1999 and 1999-2000 contain no rule similar to Rule 16. Moreover, the minutes of the board of directors meeting held on April 11, 2000, contain the following notes regarding the “[djiscussion for rules for the 2000 Hunting Season”:

Add: 15 There will be two groups of dog hunters-permanent locations: The West Camp and The Cold Springs Project Camp. There shall be NO exceptions to this rule.
Motion made by Vic, second by Dale to accept new rules and revisions; motion passed.

The minutes for the board of directors meeting held on May 9, 2000, contain the following notes regarding the rule:

# 15 Remove permanent location Motion by Alton seconded by Vic to accept revisions, motion passed.
Renumber rule 12-16 because of the above addition.

Thus, the record establishes that Rule 16 was enacted by the board of directors, not the membership, and that it was not enacted until the Spring of 2000.

Despite these erroneous factual conclusions, the trial court reached the right result in concluding that Rule 16 did not require the approval of the membership. Article III, Section 13 does not grant the membership exclusive authority in regulating the hunting process. It simply gives the membership the power to act in the absence of board action or to overrule the action of the board of directors in regulating certain aspects of the hunt. The plaintiffs failed to avail themselves of this provision by habringing the dispute to the membership for resolution and cannot now collaterally attack the validity Rule 16. Thus, while we find that the trial court did commit error in its determination of certain facts, that error does not change the result. Therefore, we find no merit in the appellants’ first assignment of error.

Assignment of Error Number 2

In their second assignment of error, the appellants assert that the trial court erred in concluding that the action of the board of directors in enacting Rule 16 violated the provisions of La.R.S. 12:217(A) which requires that the rules governing a nonprofit corporation “be reasonable, germane to the purpose of the corporation, and equally enforced as to all members of the same class.” They base this argument on testimony that all of the hunting and camping rules were not enforced against all members.

Connie Welch testified that there were no rules to govern conflicts when more than one group wanted to hunt with dogs on the two designated camps, that certain members of the board of directors controlled who could hunt on any given day, that some camp locations violated both the IP lease and the hunting and camping rules, that one board member allowed his dog to run free during turkey season, and that certain board members failed to lock the gates on the leased property as required by hunting and camping rules. Bobby Slaydon, Wallace Martin, and John Jett all complained that some board members had constructed deer stands along IP roads in violation of both the terms of the lease and the hunting and camping rules. Although the testimony is vague concerning whether these witnesses ever mentioned the alleged violations to board members, all acknowledge that no formal complaint was ever filed.

|13 Jerry Harvey addressed some of these complaints in his testimony. According to Harvey, none of the deer stands to which Slaydon, Martin, and Jett referred violated the lease or the hunting camping rules. Additionally, Harvey testified that the complaint concerning the loose dog during turkey hunting season had been immediately addressed by picking up the dog.

By the plaintiffs’ own testimony, no formal complaint of these alleged violations was ever made, and, therefore, the board of directors was never called upon to address them. Therefore, we find that the record contains no evidence to establish the unequal treatment prohibited by La. R.S. 12:217(A), and we find this assignment of error to be without merit.

Assignment of Error Number 3

The appellants argue in this assignment of error that the trial court erred in failing to invalidate Rule 16 because it is ultra vires in that it violates the corporate charter of the Cold Springs Club. Specifically, the appellants assert that the rule violates that portion of Article III of the articles of incorporation which provides that “[n]o part of the net earnings or other assets of this corporation shall enure to the benefit of any private stockholder or individual.” They argue that Rule 16 allows Wayne West to personally benefit from his relationship with the corporation because the Wayne West Camp is his personal property and not subject to lease by the Cold Springs Club or the Ben West Club.

A member of a nonprofit corporation may bring an action against the corporation and its board of directors to enjoin the performance of an act by the corporation on the basis that the corporation lacked the capacity or power to perform the act. See La.R.S. 12:208. While the appellants have directed us to nothing in the | urecord that would suggest that Wayne West received any personal benefit from allowing the Cold Springs Club members to hunt on his private land, we do find that the rule is invalid on its face. While there is nothing wrong with allowing the membership of the Cold Springs Club to hunt on property not subject to lease by the corporation, nothing in the articles of incorporation or bylaws gives the board of directors the authority to require the membership to hunt on property not under lease by the club either directly or through the Ben West Club. Additionally, the record contains no other evidence to establish any explicit or tacit adoption of Mr. West’s personal property as a part of the property under lease by the Cold Springs Club.

Therefore, the trial court erred in concluding that the board of directors had the authority to adopt a rule requiring the club members to hunt with dogs on property not subject to lease by the club. Thus, we find merit in this assignment of error and conclude that Rule 16 is not enforceable against the appellants. Having concluded that the trial court erred in finding Rule 16 valid, we set aside the judgment denying the permanent injunction and grant the appellants a permanent injunction, enjoining the defendants from terminating their membership in the Cold Springs Club for violating Rule 16. In reaching this conclusion, we find it unnecessary to address the merits of the appellants’ last assignment of error.

Damages

After obtaining temporary and preliminary injunctive relief, the appellants failed to obtain permanent injunctive relief and lost their memberships by judgment of the trial court on September 26, 2001. On April 3, 2002, this court vacated the trial court judgment and ordered a new hearing on the permanent injunction, effectively reinstating the preliminary injunction. Thereafter, the appellants obtained preliminary |isinjunctive relief by the consent judgment of June 4, 2002. However, that preliminary relief terminated with the trial court judgment of September 27, 2002, denying permanent in-junctive relief. The September 27, 2002 judgment has continued in effect through this appeal. Thus, the timing of the judicial proceedings was such that the appellants were prevented from hunting as members of the Cold Springs Club for both the 2001-2002 and 2002-2003 hunting seasons.

The appellants suffered no special damages as a result of their membership termination, and the general damages suffered are minimal. The only damages testified to by the three appellants involved their embarrassment and anxiety over having to explain to others why they had been removed from the membership rolls of the corporation. None of the appellants sought professional treatment. In fact, Slaydon and Martin both joined other hunting clubs and, thus, did not miss participating in any hunting season. Welch presented no testimony concerning his hunting habits since his membership termination.

We recognize that, while its organizational structure is that of a nonprofit corporation with a lofty stated purpose for its existence, the Cold Springs Club is in reality a hunting club — nothing more and nothing less. Still, the issue of damages to the individual members must be considered under the law governing nonprofit corporations.

Louisiana Revised Statute 12:208 provides the statutory approach for setting aside the ultra vires act of a nonprofit corporation. That statute gives a corporate member authority to bring an action to assert the invalidity of an act of the corporation or to enjoin the performance of the act. La.R.S. 12:208(A). However, that statute provides no monetary remedy to the member aggrieved by the action of hfithe corporation. In fact, damages are only considered if the ultra vires act is associated with execution of a third-party contract, and, even then, the damages are awarded to the corporation and not the members. La.R.S. 12:208(A)(2).

The appellants had two opportunities to challenge Rule 16 before their dismissal as members. First, they could have brought the dispute to a membership meeting and requested that the membership overrule the board of directors by exercising its authority to regulate the means and methods of taking game granted by Article III, Section 13 of the bylaws. Second, they could have brought an action pursuant to La.R.S. 12:208 to have Rule 16 declared an ultra vires act before any attempt to enforce it. Instead, the appellants chose to violate Rule 16 and await the consequences. We find that such action or inaction on their part precludes the award of monetary damages.

DISPOSITION

We reverse the trial court’s judgment, rejecting the appellants’ request for a permanent injunction; and we render judgment, awarding Bobby Slaydon, Wallace Martin, and Connie Welch a permanent injunction against Cold Springs Hunting Club, Inc. and its board of directors, enjoining the defendants from terminating the appellants’ memberships in the corporation based on violations of Rule 16 of the corporation’s camping and hunting rules for the 2001-2002 hunting season. Furthermore, we render judgment in favor of Cold Springs Hunting Club, Inc. and its board of directors, and against Bobby Slaydon, Wallace Martin, and Connie Welch, rejecting the appellants’ claims for monetary damages. We tax one-half of the costs of this appeal to the appellants and one-half to the defendants.

REVERSED AND RENDERED.

      . Although the record does not contain any pleading wherein they .removed themselves from the litigation, the judgment on the preliminary injunction makes no mention of Wallace or Jason Martin,

      .While the June 6, 2001 judgment did not mention Wallace or Jason Martin, this judgment lists them as party plaintiffs. Apparently based on the statement to the trial court at the beginning of trial that they were no longer parties to the litigation, the judgment does not mention John, Jarrod, or Joseph Jett. However, it does not mention Clinton Thompson either.

      . This judgment mentions all of the original plaintiffs except David Martin.

      . In this judgment, the plaintiffs are referred to as "BOBBY SLAYDON, ET AL.”

      . The copy of this amendment in the record is not dated.


source: Caselaw Access Project

author: |, GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Terence GILLIAM, Appellant.
    No. 36,794-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      James E. Beal, Louisiana Appellate Project, Jonesboro, Counsel for Appellant.
    Richard Ieyoub, Attorney General, Counsel for Appellee.
    Paul J. Carmouche, District Attorney.
    Dale G. Cox, Assistant District Attorney.
    Before WILLIAMS, GASKINS and DREW, JJ.
   |, GASKINS, J.

Following a jury trial, the defendant, Terence Gilliam, was convicted of second degree murder in the shooting death of a three-year-old child. He was sentenced to the mandatory term of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. For the reasons set forth below, we affirm the defendant’s conviction and sentence.

FACTS

The facts of the offense are set forth in State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 608. In that case, the defendant’s brother, Demetric Gilliam, was convicted of first degree murder and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for his role in the murder; we affirmed.

On August 18, 1998, Tyrell Odell went to visit his three-year-old son, K.B. He was accompanied by a friend, Eric Calhoun. Odell was driving a burgundy Mitsubishi Galant that belonged to his girl friend. Odell and Calhoun went to the home of K.B.’s mother, Teresa Bryant, to pick up K.B. to get a haircut and to buy clothes for the child. Ms. Bryant and her infant daughter, J.B., accompanied them on this excursion.

After running several errands, they stopped at the Hollywood Liquor Bank at Hollywood Avenue and Union Avenue at about 2 p.m. Odell got out of the car and went into the store; it is unclear as to whether Calhoun exited the vehicle. At any rate, after Odell left the store, all five of the occupants were again in the vehicle. Ms. Bryant was seated in the front | ^.passenger seat with her daughter on her lap. Calhoun was seated directly behind her while K.B. sat next to him, in the back seat behind the driver’s seat. Odell was in the driver’s seat.

As the Galant began to back up, it was struck by a teal green Pontiac. Inside this car were the defendant, his brother Deme-tric, and Larry White. Demetric had a .46 caliber handgun. White obtained a 12-gauge shotgun from the trunk of their car which was accessible through the back seat. The defendant likewise armed himself with a SKS or AK-47 assault rifle. The three men began firing into the Ga-lant.

Everyone in the Galant was hit by gunfire. J.B., the infant, was shot in the arm; the bullet fractured the bone. .Her mother received gunshot wounds to the chest and back; she was also hit in the mouth by a shotgun blast that fractured several teeth and lacerated her lip. Calhoun had several injuries, most notably to his left arm; the humerus and both bones of his forearm were fractured and there was an injury to the radial nerve. Calhoun also had a wound to the buttocks. Calhoun initially shielded K.B. from the gunfire; however, after he was shot, Calhoun was unable to maintain his hold on the child. The little boy jumped up and stood, holding onto the back of the driver’s seat. He was struck in the back of the head by a bullet from the assault rifle and died almost immediately.

Odell’s arm was grazed by a bullet. He was able to escape from the car. As he fled across Hollywood, Odell was shot in the legs and right buttock. He was able to reach the porch of a residence across the street where he collapsed. Finally, the shooters ceased firing, returned to the |sPontiac and fled the scene. Both Odell and Calhoun had recognized one of the shooters as Demetric Gilliam; they knew him by his nickname, “Red.”

Several witnesses observed the shooting. Ryan Perkins, age 11, was one of the passengers in a car driven by his brother Kevin. As they drove near the liquor store, Ryan witnessed the shooting. When Odell ran across Hollywood, Kevin had to stop their car to avoid hitting him. After the shooters fled, Kevin stopped in the store parking lot. The occupants of the Perkins car were the first persons to reach the Galant after the shooting and offer assistance to the victims.

Kevin Joseph, a security coordinator for the Caddo Parish School Board, was attending a course taught by the Caddo Parish Sheriffs office at the nearby Caddo Career Center. While running an errand, he saw the shooting. As a Desert Storm veteran, he was able to recognize the types of firearms involved; he also noticed that the person firing the assault rifle did not know how to properly handle the weapon. He returned to the career center and notified several of the police officers attending the same course. These officers immediately responded and went to the shooting scene.

Officer Allen Crump of the Shreveport Police Department was one of those officers. Upon arriving at the liquor store, he radioed for emergency assistance for the injured victims and began securing the crime scene. From the parking lot area, the police recovered four fired .12 gauge shot shells, five fired .45 caliber cartridge cases, and 20 fired 7.62 x 39 cartridge cases from a semiautomatic assault rifle. They also found two projectiles: a 7.6214 x 39 bullet jacket and a .45 caliber bullet. Analysis of the damage to the Galant indicated that all shots were fired into the vehicle from the outside.

That evening the police received information that a suspect known as “Red” who was involved in the shooting was about to leave the jurisdiction. According to the police tip, he was at a house on Alma Street; the defendant’s girl friend, Shure-ka Harvey, lived at this residence. When Sgt. Michael Kellum drove up in an unmarked police car, he saw a black male exit the house with a very large garbage bag in his hand and walk toward the trunk of a vehicle. When the man saw Sgt. Kellum, he dropped the bag and walked briskly inside. The officer called for backup. Ms. Harvey came outside and spoke to Sgt. Kellum. She gave permission for the police to enter the house. Demetric Gilliam, the defendant’s brother, was found hiding in the attic. The teal green Pontiac involved in the shooting was discovered behind the house, covered by a tarp.

In addition to Demetric Gilliam, the police developed Larry White as a suspect in the shooting. White’s brother, Cornell Hall, who had the same nickname as Demetric Gilliam, “Red,” and who resembled the defendant, was also developed as a suspect; four witnesses identified Hall from a photo line-up. The three men were arrested and charged in the shooting death of K.B.

According to the police, the defendant was considered as a suspect early in the investigation. However, his mother provided him with an alibi, Instating that he was at home babysitting at the time of the murder. When the police sought to talk to him, they were informed that he had gone to Texas.

Pam Smart of the Caddo Public Defender’s Office was appointed to represent Hall. At one point, Richard Ratcliff, a retired FBI agent and nationally recognized polygraph examiner, was hired by the Caddo Public Defender’s Office to do a polygraph on Hall; he passed two such tests. Ratcliff received a telephone call from the defendant who essentially confessed to his role in the shooting. After learning of this call, Ms. Smart telephoned the defendant in about mid-June 1999 and asked what his intentions were. He told her he wanted to do the right thing. When he asked if he might go to jail if he did the right thing, Ms. Smart told him he probably would go to jail. Despite that, he was still willing to give a statement.

The defendant also spoke to Cornell White, the father of Larry White and Cornell Hall. He told Mr. White that he was present at the shooting, not Hall. He said that he wanted to do the right thing and turn himself in to the police. After this conversation, Mr. White telephoned Clifford Devereaux, an investigator for the Caddo Public Defender’s Office.

On July 12, 1999, Devereaux and Mr. White picked up the defendant and brought him to the public defender’s office to give a statement. Also present was James McClure, the chief investigator for the Caddo Public Defender’s Office; Ms. Smart arrived after the interview began. The defendant gave them a tape recorded statement that he-not Cornell Hall-had been involved in the shooting.

| fiDevereaux and Ms. Smart took the recorded statement to the homicide screening section of the Caddo District Attorney’s Office. The investigators working on the case for the district attorney’s office decided to interview the defendant themselves. On July 13, 1999, the defendant voluntarily went to their office and gave a recorded statement to Johnny “Rusty” McKinley and Don Ashley. At the end of the statement, the investigators for the district attorney’s office requested that a deputy sheriff place the defendant under arrest for first degree murder.

Subsequently, the charges against Cornell Hall were dismissed, and he was released from jail.

In August 1999, the defendant was indicted for first degree murder; however, in September 2001, the charge was reduced to second degree murder.

In September 1999, the defendant filed a motion to suppress his statements to the employees of the Caddo Public Defender’s Office, as well as the statement to the investigators for the district attorney’s office. The trial court denied the motion.

In March 2002, a jury convicted the defendant as charged of second degree murder. The trial court imposed the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The defendant’s motions for new trial and for post-verdict judgment of acquittal were denied.

The defendant appeals, asserting two assignments of error.

^SUFFICIENCY OF EVIDENCE

The defendant argues that the evidence, viewed in the light most favorable to the state, was not sufficient to convict him of second degree murder.

Law

When issues of both sufficiency of the evidence and trial errors are raised on appeal, the reviewing court should first address the sufficiency of the evidence claim. State v. Hearold, 603 So.2d 731 (La.1992); State v. Sharp, 35,714 (La.App.2d Cir.2/27/02), 810 So.2d 1179.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficieney-of-evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Sharp, supra.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Sharp, supra; State v. Mackens, 35,350 (La.App.2d Cir.12/28/01), 803 So.2d 454, writ denied, 2002-0413 (La.1/24/03), 836 So.2d 37.

When circumstantial evidence forms the basis for conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when viewing the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. State v. Mackens, supra. This is not a separate test from Jackson v. Virginia. State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488.

Second degree murder is the killing of a human being with the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1.

Discussion

The defendant contends that the entire case against him-except for his confessions which he claims were inadmissible-was circumstantial. Even though the defendant’s own brother placed him at the scene, the defendant argues that Demetric refused to admit that he saw the defendant fire any weapon.

We have determined that the defendant’s statements were admissible, as discussed infra. In these statements, he admitted that he was armed with an assault rifle which he fired multiple times at the Galant containing five |flpassengers. K.B. was struck and killed by a bullet from the weapon that the defendant admitted firing.

As to the testimony of the defendant’s brother that he did not see the defendant fire a weapon, we note that Demetric was impeached with his testimony from the penalty portion of his own first degree murder trial. On that occasion, he testified that the defendant had fired the assault rifle during the attack on the occupants of the Galant. At the defendant’s trial, Demetric asserted that he only “assumed” his brother fired it because the police reports said it had been fired.

Demetric’s credibility was further damaged when he was impeached with several other prior inconsistent statements; these included his admittedly false statements to the police that someone named “Fred” was present at the shooting instead of the defendant. Demetric conceded that the three weapons used in the attack were in his vehicle prior to the murder and that his passengers-the defendant and Larry White-exited the car. He claimed that he never saw them armed and did not know what happened “behind” him. He invoked his Fifth Amendment rights when asked whether he fired the handgun or the assault rifle. Demetric testified that he was keeping the shotgun and assault rifle for their real owner, a person named Jamar, and that Jamar retrieved those weapons from him after the shooting. While admitting ownership of the handgun, he stated that he and that gun had become “separated” after the shooting. The defendant admitted telling the police that he had thrown out the guns.

Even without the defendant’s multiple confessions, the circumstantial evidence — viewed in the light most favorable to the state-excludes every reasonable hypothesis of the defendant’s innocence. Several witnesses testified that there were three gunmen who arrived in the store parking lot in a Pontiac and ambushed the occupants of the Galant, indiscriminately firing into the vehicle at close range. Although these witnesses were unable to specifically identify the defendant, their testimony established that each shooter fired a different type of weapon — a handgun, a shotgun and an assault rifle. The use of these three types of firearms was verified by the forensic evidence gathered at the scene and by analysis of the damage to the Galant and the injuries to the victims. The two other shooters, Demetric Gilliam and Larry White, testified at the defendant’s trial that the defendant was the third person in the Pontiac. Even if the defendant was not the assailant who fired the shot that killed K.B., he was a principal in the indiscriminate shooting into a car with the specific intent to kill or cause great bodily harm to the occupants. State v. Gilliam, supra. A person may be convicted of an offense even if he has not personally fired the fatal shot. State v. Gilliam, supra; State v. Hampton, 1998-0331 (La.4/23/99), 750 So.2d 867, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999), rehearing denied, 528 U.S. 1108, 120 S.Ct. 855, 145 L.Ed.2d 721 (2000). We find here, as we did in his brother’s case, that it is of no consequence whether the defendant actually fired the bullet that struck and killed K.B.

This assignment of error is meritless.

J^MOTION TO SUPPRESS

The defendant contends that the trial court erred when it denied his motion to suppress the two inculpatory statements he gave prior to his arrest.

Contents of the statements

In his statement to the employees of the Caddo Public Defender’s Office on July 12, 1999, the defendant stated that on the day of the shooting, he was present at a friend’s house for a barbecue with Deme-tric, Larry White and Cornell Hall. Then Demetric, White and the defendant went to the liquor store while Hall remained at the house. Upon arriving in the parking lot, they saw Tyrell Odell run from the store, jump in his car, put the vehicle in reverse and back into Demetric’s car. He stated that Odell shot at them, so they fired back. According to the defendant, Demetric always kept his handgun next to his arm rest. The defendant got a SKS assault rifle and White obtained a shotgun from the trunk of their car; the trunk was accessible through an opening in the back seat. The defendant admitted shooting “the girl in the passenger seat” and firing his weapon until it was empty. He stated that he did not know what his brother did with the guns.

The defendant said that at a point prior to the shooting, some of Odell’s friends had pulled a gun on him at a service station and “jumped” him. He stated that they had also broken into his mother’s house and pulled a gun on his niece. He also said that Odell had threatened to kill him and his mother. When asked why he was coming forward, the defendant said that it bothered him that Hall was in jail for something he didn’t do.

|1«>At the beginning of the defendant’s statement to the district attorney’s investigators on July 13, 1999, the investigators read him his rights, including his right to remain silent and to have an attorney; he waived these rights and signed a waiver form. The defendant told essentially the same story with some modifications. The defendant claimed that he only shot out the tires of the Galant and fired at Odell as he ran across the street. He did not mention shooting Ms. Bryant. In this version, he said that Demetric also fired the assault rifle.

When asked about why he came forward, he said he wanted “everybody to get out of jail and let it be self defense ...” He admitted that he was warned by the investigators before the statement began that there was a “true possibility” that he would be arrested. He further conceded that no promises or threats had been made to him to obtain his statement.

Law

Before a confession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Sharp, supra. A trial court’s findings regarding the admissibility of a confession are entitled to great weight and will not be disturbed unless unsupported by the evidence. State v. Sharp, supra. |13 Testimony of the interviewing police officer alone may be sufficient to prove that the statement was freely and voluntarily given. State v. Mackens, supra.

Discussion

The defendant argues that his two incul-patory statements should have been suppressed. He asserts that he had a reasonable expectation of confidentiality when he gave his statement to the Caddo Public Defender’s Office because he was told that the office represented poor people charged with crimes. In support of this argument, he cited State v. Green, 493 So.2d 1178 (La.1986). He also contends he should have been afforded counsel by the public defender’s office prior to giving his statement. Asserting the inadmissibility of the first statement, he argues that the second statement to the district attorney’s investigators should be inadmissible as “fruit of the poison vine.”

We note at the outset that the Green case is distinguishable from the present one. In Green, supra, there was no question that the attorney involved represented that defendant; thus, an attorney-client privilege existed which prevented the attorney from disclosing the client’s confidences.

In the instant case, the testimony of the employees of the Caddo Public Defender’s Office who were involved in the defendant’s initial statement established that Ms. Smart was representing Cornell Hall, not the defendant, and that the defendant was made aware of this fact. He was neither offered an attorney nor did he request one. Not only did he know | uthat the information he gave them about his involvement in the shooting would be used to clear Hall of the murder charges, the defendant’s express purpose in coming forward was to secure the release of the wrongly incarcerated Hall. McClure and Devereaux, the investigators for the Caddo Public Defender’s Office, testified that they told the defendant that they were not police officers. The interview at the public defender’s office was not a custodial interrogation and the defendant was free to leave at any time. When the defendant voluntarily met with the district attorney’s investigators the following day, he was informed of his rights; he signed a written waiver of those rights. The district attorney’s investigators testified that they made no promises or threats to induce the defendant to speak to them.

We also note that even before the defendant gave his formal statements to personnel from the public defender’s office and the district attorney’s office, he admitted his participation in the shooting to Ratcliff, the former FBI agent who administered the polygraph to Hall, and to Hall’s father.

Based on the above, it cannot be said that the defendant had any expectation of confidentiality in his statement at the Cad-do Public Defender’s Office. To the contrary, it is abundantly clear from this record that the defendant wanted to tell the truth about his participation in the murder of K.B. in order to free Hall from being imprisoned for a crime that the defendant had committed.

hsThis assignment of error is meritless.

CONCLUSION

The conviction and sentence of the defendant are affirmed.

AFFIRMED.

      . His name is sometimes spelled "Demetrius” in the record.

      . Pursuant to La. R.S. 46:1844(W), we will use initials to designate the minor victims— K.B. for the murder victim and J.B. for his eight-month-old sister who was also injured.

      . As previously noted, subsequent examination revealed that the bullet fragments recovered during K.B.'s autopsy were consistent with the bullet jacket of 7.62 x 39 caliber bullet.

      . As already noted, Demetric Gilliam was convicted of first degree murder. White pled guilty to manslaughter.

      . However, several trial witnesses testified that the tires on the Galant were not damaged.

      . This is in keeping with the testimony of Demetric Gilliam who stated that he and Cornell Hall both told the defendant it was in their best interest for him to come forward and admit his role in the shooting.


author: | .MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Calvin Ashton THOMAS, Appellant.
    No. 36,998-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.
    Carey J. Ellis, III, Rayville, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Edward M. Brossette, Assistant District Attorney, Tommy J. Johnson, Assistant District Attorney, for Appellee.
    Before GASKINS, MOORE and KOSTELKA (Pro Tempore), JJ.
   | .MOORE, J.

Calvin Ashton Thomas was charged by bill of information with distribution of cocaine, La. R.S. 40:967 A(l), punishable by imprisonment for not less than 10 years and not more than 30 years, including 10 years without benefit of parole, probation or suspension. Thomas proceeded to trial, after which a 12-member jury found him guilty as charged. The trial court initially sentenced Thomas to 30 years at hard labor, which was subsequently set aside on motion of the state to reconsider sentence. The state then filed a fourth felony offender bill against Thomas and following his habitual offender hearing, he was adjudged a fourth felony offender and sentenced to life without benefits. Thomas now appeals arguing the sentence is excessive. We affirm.

Background

In May 2000, Thomas was arrested after he sold a piece of crack cocaine to an undercover agent in a buy-bust operation in Shreveport in violation of La. R.S. 40:967 A(l), supra. A unanimous jury found him guilty as charged. Thereafter, the state charged Thomas as being a fourth felony offender with convictions for simple burglary on November 6, 1990, middle grade theft on January 17, 1992, and felony theft on November 18, 1994. After a contradictory hearing, the court adjudicated Thomas to be a fourth felony offender subject to the Habitual Offender Act, La. R.S. 15:529.1 A(1)(c)(ii), which was triggered into effect by the instant conviction violating the Uniformed Controlled Dangerous Substance Law punishable by imprisonment for 5 or more years. The court imposed the mandatory life sentence as required by La. R.S. 15:529.1 A(1)(c)(ii) in | geffect at the time of the instant offense in 2000, as the 2001 amendment was found to be prospective only. 2001 La. Acts no. 403 § 6; State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); State v. Wade, 36,295 (La.App. 2 Cir. 10/23/02), 832 So.2d 977; see also, La. R.S. 24:171.

Discussion

Thomas argues that the court did not consider all factors in determining whether the mandatory life sentence was excessive, including unspecified mitigating factors, such as his academic and other achievements while incarcerated and that his prior convictions were not for crimes of violence. In this case, La. R.S. 15:529.1 A(1)(c)(ii) mandates a life sentence without benefits for Thomas as the instant conviction was predicated on Thomas’ violation of the Uniform Dangerous Substance Law punishable by imprisonment for more than 5 years.

We have previously held that the mandatory life sentence imposed by the Habitual Offender Statute is presumptively constitutional and should be accorded great deference by the judiciary. State v. Wade, supra.

Although courts have the power to declare a mandatory sentence excessive under Article I, § 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court finds there is clear and convincing evidence that would rebut the presumption of constitutionality. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; Wade, supra.

Johnson and Wade, supra, also held that the burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so the defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, supra. Further, a trial judge may not rely solely upon the nonviolent nature of the instant or past crimes as evidence which justifies rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the major reason for declaring such a sentence excessive. Johnson, supra; Wade, supra; State v. Lindsey, 99-3256 (La.10/17/00), 770 So.2d 339.

Here, the trial court considered all the circumstances and mitigating factors in this case and properly found no unusual circumstance justifying a downward departure from the imposed mandatory life sentence. We find Thomas has failed to carry his burden of proof under Johnson, supra, to consider a downward departure in sentence, as he has failed to show any unusual circumstance that would support such a rare downward departure.

As pointed out by the supreme court in Lindsey, supra, the goals of the Habitual Offender Statute, to deter and punish recidivism, are satisfied by imposing a life sentence against such a person. Lindsey, at 344.

[ ¡¡Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La.C.Cr.P. 920(2).

Accordingly, Thomas’ sentence to serve life in prison without benefit of parole, probation or suspension is affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: I,GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Dennis Ray GREEN, Appellant.
    No. 36,970-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    Richard Ieyoub, Attorney General, Jerry Jones, District Attorney, E. Dion Young, Charles Brumfield, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and PEATROSS, JJ.
   I,GASKINS, J.

The defendant, Dennis Ray Green, appeals as excessive his sentence of 35 years at hard labor without benefit of parole, probation, or suspension of sentence following his conviction for armed robbery. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

On September 18, 2001, the defendant entered the One-Stop Liquor Store in Bas-trop, Louisiana, armed with a revolver, and demanded money from the store clerk. The defendant threatened the clerk with the weapon and took more than $224 in cash from the register. The entire episode was recorded on videotape. The defendant was arrested the next day and gave a confession. He also admitted that he had stolen the revolver in a burglary on the day before the instant offense. The gun was later recovered.

The defendant was charged with one count of armed robbery and was tried by a jury. He was convicted as charged on March 20, 2002. On August 6, 2002, the defendant was sentenced to serve 35 years at hard labor, without benefit of parole, probation, or suspension of sentence. Credit was given for time served and the defendant was informed of the applicable delays for filing for appeal and for post-conviction relief. The defendant’s motion to reconsider the sentence was denied by the trial court. The defendant appealed.

DISCUSSION

The defendant asserts that the sentence imposed was unduly harsh and excessive under the circumstances of this case. He also urges that the trial court failed to sufficiently articulate and consider the guidelines of La. |?0. Cr. P. art. 894.1 in fashioning the sentence. These arguments are without merit.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Prior to imposing sentence, the district court considered a presentence investigation report which provided detailed information concerning the defendant who, at the time of sentencing, was 39 years old. The defendant, one of 14 children, was a fifth felony offender. He had two prior convictions for third-degree robberies in Oregon, one conviction for first degree sexual abuse in Arkansas, and a conviction for conspiracy to commit forgery. The defendant also had a series of misdemean- or convictions and had several counts of simple burglary still pending against him. He had been on probation when he committed the instant offense. The court noted that the defendant said he had a drug problem for many years, but otherwise there was nothing remarkable in his social history.

13The court determined that a lesser sentence would deprecate the seriousness of the offense, opining that the defendant is a career criminal and among the worst offenders the court had ever seen. The court also noted that because the charged offense carries a mandatory minimum sentence without benefit of probation, parole, or suspension of sentence, the defendant did not qualify for probation or suspension of sentence.

Our review of the record discloses that the trial court adequately considered the guidelines of La. C. Cr. P. art. 894.1 and articulated a factual basis for the sentence imposed.

The second test is whether the sentence imposed is too severe depending on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

On this record, we do not find constitutional error. The defendant, a fifth felony offender, has a history of robbery-related offenses which have escalated. He is married and has two children by two different women. Although the defendant is a high school graduate and claims to have skills in construction and heavy equipment operation, his last significant Lemployment was a six-month period at a car dealership in 2000. He was on supervised probation when he committed the instant offense.

For the offense of armed robbery, the defendant faced a sentence of not less than 10 years nor more than 99 years at hard labor without benefits. The sentence imposed in this case is lawful and is barely more than one-third of what the trial court could have imposed. Given the circumstances of the case and the defendant’s history of committing robberies, the sentence imposed is neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. There is no showing of an abuse of the trial court’s discretion in the imposition of this sentence which is not constitutionally excessive.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Dennis Ray Green.

AFFIRMED.


author: | PEATROSS, J.

text:
    Jerrilyn WILLIAMS and Todd Williams, Plaintiff/Appellee, v. SUPER TRUCKS, INC., Ford Motor Company, White & Babin Ford Company, Inc., William C. Martin, & Derrell Graham Chevrolet, Inc., Defendants/Appellees. Glen F. Post, Jr., Plaintiffs/Appellants, v. Super Trucks, Inc., Ford Motor Company, White & Babin Ford Company, Inc., William C. Martin, & Derrell Graham Chevrolet, Inc., Defendants/Appellees.
    Nos. 36,993-CA, 36,994-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Dollar Laird, L.L.P., by Johnny E. Dollar, Monroe, for Appellants.
    David F. Post, Farmerville, for Appellee, Glen F. Post, Jr.
    McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, P.C., by Robert W. Maxwell, Keith W. McDaniel, Lance B. Williams, Metairie, for Appellee, Ford Motor Company.
    Stanley Kendrick Hurder, Baton Rouge, for Intervenor/ Appellee, Louisiana State Employees Group Benefits Plan.
    Before WILLIAMS, PEATROSS & MOORE, JJ.
   | PEATROSS, J.

This appeal arises from a jury verdict in favor of the defendant, Ford Motor Company, finding that Ford was not liable to plaintiffs, Jerrilyn Williams and Todd Williams, individually and as natural tutrix and tutor, respectively, of the minor Jeremy Williams, and Glen Post, Jr. (collectively “Plaintiffs”), and dismissing Plaintiffs’ claims against Ford with prejudice. Plaintiffs now appeal the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

On November 24, 1990, Mr. Glen Post, Jr. was driving his 1977 Ford Bronco (“Bronco”) north on Louisiana Highway 549 near Famerville, Union Parish, Louisiana, when his vehicle collided with a Chevrolet Camaro driven by Mrs. Jerrilyn Williams who was headed south on the same highway. It was determined that suddenly, and without warning, the left rear axle on the Bronco snapped completely in two, causing the left rear wheel and part of the axle to break free from the vehicle. The loss of the wheel caused the Bronco to cross over the center line and collide with the Camaro driven by Mrs. Williams. Mrs. Williams and her son, Jeremy Williams, who was also in the car, were both injured. Mrs. Williams sustained several serious injuries, including disfigurement, lacerations, multiple fractures, contusions, abrasions and a crushed knee and ankle. Jeremy sustained lacerations, contusions and embedded glass in his head. Mr. Post was also injured, sustaining several serious injuries, including contusions, abrasions and a fracture to his right femur. The Bronco was a | ¡.total loss. Neither Mr. Post nor Mrs. Williams were determined to be at fault in the accident.

The trial judge found that the reason the axle on the Bronco snapped in two was because of negligent repair work done to the vehicle at Super Trucks, Inc. in West Monroe. A cutting torch, applying extreme heat, was used to replace the bearings on the rear of the vehicle and the use of the torch weakened the axle of the vehicle, causing it to fail and the wheel to fall off the vehicle while it was in motion. On July 16, 1991, Mr. and Mrs. Williams, both individually and on behalf of their son Jeremy, filed suit against, among others, Super Trucks, Inc. (“Super Trucks”) and Ford Motor Company (“Ford”). On July 25, 1991, Mr. Post filed suit against these same Defendants. Plaintiffs alleged that Ford was responsible for design defects in the Bronco, inadequate warnings and other acts of fault and negligence. In particular, Plaintiffs argued that the warning in the 1977 Ford shop manual was inadequate. The warning stated:

If the wheel bearing is to be replaced, the inner retainer ring must first be loosened. Never apply heat to do this. (Emphasis added.)

In addition, Plaintiffs alleged, inter alia, that Super Trucks was responsible for failing to use proper repair procedures on the vehicle. In 1998, the trial court consolidated the two lawsuits.

On April 30, 2001, trial commenced. At trial, the records from Super Trucks showed that Matt Prophit, a mechanic, made repairs to the Bronco on July 26, 1990, replacing both wheel bearings at the rear of the vehicle by pusing a cutting torch, applying heat to the axle. In his deposition, Mr. Prophit stated that there were two ways to remove old wheel bearings, either with a cutting torch or a press. He was only trained in the method of removing wheel bearings with a cutting torch. He stated that he had not read the shop manual which contained the warning not to apply heat and that no. one ever told him not to use a cutting torch. Lionel Reed, however, owner of Super Trucks, disputed Mr. Prophit’s statements and testified at trial that he required his mechanics to use a press to remove wheel bearings and not to use a cutting torch.

Dr. Paul Packman testified at trial for Plaintiffs and he was tendered and accepted as an expert in the fields of metallurgical design, failure analysis and warnings. He worked extensively for the steel companies that produce the steel used in axles like the axle used on the Bronco. Dr. Packman testified that, had there been a warning on the axle itself, in all likelihood heat would not have been applied to it during repair. He was certain that, if the heat had not been applied by the cutting torch to the axle, the accident would not have occurred. Dr. Packman testified that the axle failure was caused through a chain reaction of events. First, when the bearing was removed, heat was applied to remove the bearing unevenly with attempts to cut through the bearing. The heating process changed the metallurgical structure of the steel in the axle causing “auto-quenching.” When the axle is properly manufactured, it has a tough outer edge; but with heat applied, the structural integrity is destroyed. Dr. Packman testified that, once the axle becomes cracked, it is unreasonably dangerous with no failsafe mechanism.

Dr. Packman concluded that the heat required to change the metallurgical structure came from a cutting torch. With the axle having a crack caused by heating, the fatigue crack grew across the surface leading to the ultimate failure and the loss of a wheel in an accident. Dr. Packman testified that Ford was aware that the torch-cutting technique was commonly used; that it would create an unreasonably dangerous situation; and the instruction to not apply heat to the axle in Ford’s shop manual was not really a warning at all. He suggested that a warning to not apply heat should have been placed on the axle; however, he admitted that he made no study of how such a warning would hold up to the corrosion experienced by the axles in everyday use and he acknowledged that an inscribed warning on the axle could induce failure in the axle. Dr. Packman also acknowledged that he had no way of telling whether an etching on the axle could actually survive Ford’s manufacturing process.

James Varin testified on behalf of Ford and was accepted by the trial court as an expert in the areas of automotive engineering and metallurgical failure analysis. He stated that he had worked with, and for Ford, for many years and had previously been a supervisor of design and light truck braking, steering and suspension design activity. He was also a principal design engineer for design development and testing of axle assembly. He | ¿noted that more than 200 million similar axles were manufactured by Ford. Mr. Varin testified that the physical evidence submitted showed that heat had been applied to the axle on the Bronco during repair. He further testified that failure of the axle was caused by the heating during repair. Other than the warning given in the shop manuals to not apply heat to the axle, he was unaware of an appropriate manner to actually affix a warning to the axle itself because it was not likely to remain visible due to the grease, corrosion and exposure to the environment, which was common to this moving part. In his opinion, the method of raised lettering on the axle would even induce failure in the axle and cause it to fracture.

Dr. Alan Dorris also testified at trial for Ford as a human factors engineer and in regard to warnings. In Ms opinion, it was not appropriate to place all warnings on the product itself. He stated that, regarding the dangers associated with repair of the bearing, not only heating, but also hammering, drilling and grinding could cause damage to the axle and that there were potentially 35 other hazards associated with bearing repair, which could not all be warned of on the axle itself. He explained that, in light of the numerous hazards associated with automotive repair, the shop manual is the appropriate place to put any warnings related to the repair of vehicle products such as the axle. Finally, Dr. Dorris noted that the language in the shop manual was sufficient here and he considered Ford’s language of not applying heat to the axle to be a sufficient warning.

Dr. John Tabony, Jr. also testified at trial for Ford. Dr. Tabony was accepted as an expert in mechamcal engineering and metallurgy. He [ (¡determined that the axle on the Bronco failed due to a fatigue crack on the axle. According to Dr. Tabony, the contributing factors to the fatigue failure were from heat having been applied in the wheel bearing area and the improper removal of the wheel bearing. Dr. Tabony testified that an improper removal of the wheel bearing was the reason the axle failed and fatigued. He confirmed that, once heat was applied with the temperature of the cutting torch, the axle would be unsafe. Dr. Tabony further testified that a warning on the axle in chemical etching was probably not practical because, over a period of time, a person would no longer be able to see it. Finally, he explained that applying raised letters on the axle itself would cause a vibration problem on the axle, which would introduce “stress risers,” promoting a fatigue failure in the axle.

The jury rendered a verdict on May 5, 2001, finding Super Trucks to be 75 percent at fault in the accident; Mr. Profit to be 12 and one-half percent at fault; and Leon Cook, another mechanic who had replaced other wheel bearings on the Bronco on October 25, 1990, to be 12 and one-half percent at fault. The jury awarded damages to Jerrilyn Williams in the amount of $100,000, which included $25,000 for medical expenses, $25,000 for disability and loss of function and $50,000 for disfigurement. The jury further awarded damages to Todd Williams in the amount of $5,000 for loss of consortium; damages to Jeremy Williams in the amount of $1,000 for medical expenses and $1,000 for loss of consortium; and medical damages in the amount of $5,000 to Glen Post, Jr. The jury found |7that Ford Motor Company was not at fault in this accident. The trial judge rendered judgment in accord with the jury’s verdict.

The Plaintiffs subsequently filed a motion for judgment notwithstanding the verdict, or alternatively, a motion for new trial. In their motion for judgment notwithstanding the verdict, Plaintiffs sought to set aside the verdict of the jury on the issues of damages in general and specifically as to Ford’s lack of liability. In their motion for new trial, the Plaintiffs claimed that there was jury misconduct and they sought to set aside the jury verdict on the ground that the misconduct was of such a grievous nature that it precluded the impartial administration of justice. The trial judge denied the Plaintiffs’ motion for judgment notwithstanding the verdict as to the liability of Ford, finding that whether a particular warning is adequate is a question for the trier of fact to decide and he would not substitute his judgment for the judgment of the jury. The trial judge did, however, grant the motion notwithstanding the verdict on the issue of damages, finding that the award of damages was “totally unreasonable,” and noting that the injuries to each of the plaintiffs were severe and could affect them over each of their lifetimes. The damage awards were increased and damages were awarded to Jerrilyn Williams in the amount of $872,000; damages to Todd Williams in the amount of $37,897; and damages to Glen Post, Jr. in the amount of $540,000.

The trial judge also addressed the motion for new trial, noting that the party seeking a new trial must prove that the level of juror misconduct was of such a grievous nature as to preclude the impartial administration of ^justice. The trial judge permitted Plaintiffs to depose the jurors, before holding the motion for new trial hearing, in order to determine if there was any improper influence on the jury. Plaintiffs produced evidence that they characterized as juror misconduct, arguing that the jury verdict was clearly contrary to the law and evidence and that the jury behaved improperly. Plaintiffs asserted that the jury based its decisions on bias not revealed during voir dire and that they did not follow the court’s instructions. This, they argued, was a patent miscarriage of justice.

Plaintiffs took affidavits of three jurors, seeking to have them admitted at the hearing on the motion for a new trial. The jurors were not allowed to testify at this hearing. Plaintiffs contended that the depositions of Jurors Parker, Jones and Hunt indicate that, during deliberations, a couple of the jurors discussed how they did not believe in lawsuits and how Mr. Post in particular was independently wealthy and did not need the money. According to Plaintiffs, this bias could have weighed heavily on the other jurors and the trial judge should have an evidentiary hearing to determine if there was juror misconduct. Although the trial judge was troubled by what he called the “woefully inadequate award of quantum” to Plaintiffs, he held that the evidence presented at the motion for new trial hearing was insufficient to grant a new trial. This appeal ensued. On appeal, Plaintiffs raise the following assignments of error:

1. The trial court erred in not ordering a new trial on peremptory and discretionary grounds.
2. The jury erred in finding Ford Motor Company free from fault by its finding that there was an adequate warning.

J^DISCUSSION

Adequate Warning

In their second assignment of error, Plaintiffs argue that the jury was clearly wrong in its finding that Ford provided an adequate warning on the Bronco. They assert that the warning in the 1977 Ford shop manual which states, “Never apply heat,” to the axle on the Bronco when replacing wheel bearings, is inadequate and that Ford should be liable for producing an unreasonably dangerous product. In addition, Plaintiffs argue that Ford should have put a warning on the axle itself. They further contend that Ford knew the danger of heat being applied to the axle; it could have warned of the danger; it chose not to do so; and the jury should have found Ford liable. We do not agree.

Whether a particular warning on a product is adequate is a question for the trier of fact. Bloxom v. Bloxom, 512 So.2d 839 (La.1987). A jury’s finding of fact may not be reversed on appeal absent manifest error or unless clearly wrong. Stobart v. State of Louisiana, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must, instead, review the record in its entirety to determine whether the jury’s finding was clearly wrong or manifestly erroneous. Stobart, supra. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. The reviewing |incourt must always keep in mind that, “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” [Stobart, supra, citing Housley v. Cerise, 579 So.2d 973 (La.1991)(quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)) ].

The claims made against Ford in the case sub judice are governed by the Louisiana Product Liability Act (“LPLA”), La. R.S. 9:2800.51, et seq. In particular, under La. R.S. 9:2800.54(A), in order for Ford to be held liable to Plaintiffs, Plaintiffs must show that the damage to them was “proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product” by them or another person or entity. Plaintiffs argue that the axle on the Bronco was unreasonably dangerous because there was not an adequate warning on the axle itself informing all who repaired it not to apply heat to it. Whether or not a product is unreasonably dangerous because of an inadequate warning is determined under La. R.S. 9:2800.57, which sets forth that:

A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not required to provide an adequate warning about his product when:
| n (1) The product is not dangerous to an extent beyond which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product’s characteristics; or
(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.
C. A manufacture of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

Under La. R.S. 9:2800.53(9), an adequate warning on a product is defined as:

A warning or instruction that would lead an ordinary reasonable user or handler of a product to contemplate the danger in using or handling the product and either to decline to use or handle the product or, if possible, to use or handle the product in such a manner as to avoid the damage for which the claim is made.

The determination of whether a warning is adequate depends upon a balancing of considerations including, among other factors, the severity of the danger, the likelihood that the warning will catch the attention of those who will forseeably use the product and convey the nature of the danger to them, the intensity and the form of the warning and the cost of improving the strength or mode of the warning. Blox-om, supra,.

The evidence presented at trial, in the case sub judies, shows that the Ford service manual, as well as other general shop manuals, warned against the use of heat on the axle on the Bronco. These manuals are commonly loused by those who repair vehicles and the warning is designed to inform all not to apply heat to the axle. The jury listened to the evidence presented by both Plaintiffs and Ford and found this warning to be adequate. After reviewing the record in its entirety, we hold that the jury’s finding is reasonable and supported by the evidence.

Plaintiffs’ argument that Ford should have included a warning on the axle itself, by the method of raised or stamped lettering, is not persuasive. The expert testimony at trial indicated that, if such a warning was placed on the axle itself, it could weaken the axle and cause premature axle failure. Plaintiffs produced no evidence at trial that such a warning had ever been used on a rear semi-float axle, such as the one involved in the present case. Ford demonstrated at trial that its axle plant had produced more than 200 million semi-float axles, all without warnings on the axle. The Plaintiffs produced no evidence to show that axles were failing regularly because they were being improperly repaired. The jury discovered through the testimony at trial that almost any labeling or manufacturing warning |13marks would not survive the manufacturing process, nor would they survive the post manufacturing environment.

Plaintiffs cite several cases in an attempt to argue that the jury should have found that Ford did not provide an adequate warning on the Bronco. These cases are dissimilar to the facts in the case sub judice; and, thus, they are not persuasive. Although juries in other cases have found the need to place a warning on a product itself, the jury in the instant case applied the law to the facts and determined that the warning in the shop manual was adequate and the most proper place to put the warning. The jury finding here, that the Bronco was not unreasonably dangerous because Ford had provided an adequate warning, is reasonable based on the evidence and we will not disturb that finding. This assignment of error is without merit.

Motion for New Trial

Plaintiffs argue that the trial court should have granted them a new trial based on alleged juror misconduct. Plaintiffs assert that the jury behaved improperly and the jury verdict was contrary to the law and evidence. Using depositions of three specific jurors, Plaintiffs contend that [ua new trial should have been granted because of a patent miscarriage of justice due to the jury’s failure to follow instructions and also by basing its verdict on bias against lawsuits. We are not persuaded by Plaintiffs’ arguments.

La. C.C.P. art.1973 provides that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” La. C.C.P. art.l972(3) provides that “[a] new trial shall be granted, upon contradictory motion of any party when the jury ... has behaved improperly so that impartial justice has not been done.” Improper behavior by a jury is not defined, but must be determined by the facts and circumstances of the particular case. Blandino v. Brown Erection Co., Inc., 341 So.2d 577 (La.App. 2d Cir.1977).

A new trial is mandated only upon a showing of jury misconduct which is of such a grievous nature as to preclude the impartial administration of justice. Bossier v. DeSoto General Hospital, 442 So.2d 485 (La.App. 2d Cir.1983), writ denied, 443 So.2d 1122 (La.1984). Otherwise, the granting of a new trial is left to the sound discretion of the trial court. Id. A decision to deny a motion for new trial based upon jury misconduct is reviewed pursuant to an abuse of discretion standard. Wright v. Hirsch, 560 So.2d 835 (La.1990). When reviewing the denial of a motion for new trial, unless an abuse of discretion can be exhibited, the trial court’s decision will not be reversed. Davis v. Coregis Ins. Co., 00-00475 (La.App. 3d Cir.12/27/00), 789 So.2d 7, writ denied, 01-0292 (La.3/30/01), 788 So.2d 1192.

1B Not every instance of jury misconduct necessitates the granting of a new trial. Gormley v. Grand Lodge of the State of Louisiana, 503 So.2d 181 (La.App. 4th Cir.1987), unit denied, 506 So.2d 1227 (La.1987). The burden falls upon the one who is moving for a mistrial to prove that the level of the behavior was of such a grievous nature as to preclude the impartial administration of justice. Brown v. Hudson, 96-2087 (La.App. 1st Cir.9/19/97), 700 So.2d 932, cert. denied, 524 U.S. 916, 118 S.Ct. 2297, 141 L.Ed.2d 157 (1998). This is a heavy burden on the mover. The courts of this state have been reluctant to set aside jury verdicts based upon allegations of improper behavior. Brown, supra. The presence of expressive or highly opinionated persons on a jury has been held not to constitute improper behavior. Stockstill v. C.F. Industries, Inc., 94-2072 (La.App. 1st Cir.12/15/95), 665 So.2d 802, writ denied, 96-0149 (La.3/15/96), 669 So.2d 428; Theriot v. Theriot, 622 So.2d 257 (La.App. 1st Cir.1993), writ denied, 629 So.2d 1138 (La.1993). Moreover, discussions during deliberation of independent research conducted by a juror has also been held to be insufficient grounds for setting aside a jury verdict. Wright, supra; Smith v. Bundrick, 27,552 (La.App.2d Cir.11/3/95), 663 So.2d 554.

In addition, the sanctity of jury deliberations must be respected. It is well settled that affidavits and other testimony by jurors cannot be used as evidence to impeach their verdict. Uriegas v. Gainsco, 94-1400 (La.App. 3d Cir.9/13/95), 663 So.2d 162, unit denied, 95-2485 (La.12/15/95), 664 So.2d 458. La. C.E. art. 606(B) provides:

LfiUpon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury’s attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. (Emphasis added.)

The purpose of the first part of this rule is to protect and seclude from public disclosure how and why a jury reaches a verdict. Acosta v. Pendleton Memorial Methodist Hospital, 545 So.2d 1053 (La.App. 4th Cir.1989), writs denied, 551 So.2d 637, 638 (La.1989). The ,rule prohibits any publication of the juror arguments, statements, discussions, mental and emotional reactions, mental processes, preliminary votes and explanations, clarifications or statements which form the reason or comprehension of the verdict. Id. In summary, the rule prevents any inquiry into the internal deliberations of the jury. Id.

Furthermore, invasive scrutiny of a juror’s individual deliberation or investigation of a jury’s collective reasoning for reaching a verdict are disfavored in the law as a matter of public policy. Uriegas, supra. The reason for this rule is to promote the jury’s discovery of the truth by preventing litigants from invading the privacy of the jury room. Ryals v. Home Ins. Co., 410 So.2d 827 (La.App. 3d Cir.1982), units denied, 414 So.2d 375, 376 (La.1982). “One reason for this rule is that if, after being discharged and mingling with the public, jurors are permitted to 117impeach verdicts which they have rendered, it would invite tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under the sanction of oath.” Parker v. Centenary Heritage Manor Nursing Home, 28,401 (La.App.2d Cir.6/26/96), 677 So.2d 668, unit denied, 96-1960 (La.11/1/96), 681 So.2d 1271.

In the case sub judice, Plaintiffs propose that we use the depositions of three jurors to impeach the verdict of the entire jury. This we will not do. The record reflects that the trial judge provided a hearing to Plaintiffs to present their motion for a new trial and found that the evidence of improper jury behavior was not sufficient to warrant a new trial. The trial judge properly excluded the testimony of the three jurors concerning their deliberations and he did not abuse his discretion when he denied Plaintiffs’ motion for a new trial. The evidence of strong opinions from one or two jurors about lawsuits is not enough to show that the jury behaved so improperly that Plaintiffs were prevented from receiving impartial justice. Under the facts and circumstances presented by record before us, we do not find that the jury behaved so improperly as to prevent impartial justice from being done. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court following the jury verdict in favor of Ford Motor Company, finding that Ford was not liable to Plaintiffs, Jer-rilyn Williams and Todd Williams, individually and as natural tutrix and tutor, respectively, of the minor Jeremy Williams, and 11sGlen Post, Jr., is affirmed. Costs of this appeal are assessed to Plaintiffs, Jer-rilyn Williams and Todd Williams, individually and as natural tutrix and tutor, respectively, of the minor Jeremy Williams, and Glen Post, Jr.

AFFIRMED.

      . Plaintiffs later waived the design defect claim.

      . Since Mr. Prophit was living out of state and unavailable for trial, he testified by deposition.

      . Auto-quenching is where the metallurgical structure of the surface of the axle becomes different from a normal axle, permitting rapid crack initiation. With the axle having a crack caused by heating, the fatigue crack grows across the surface of the axle leading to the ultimate failure of the axle.

      . The plain language of the LPLA shows that a plaintiff, asserting a products liability action against a manufacturer, faces a two-tiered burden: the plaintiff must show that (1) his damages were proximately caused by a characteristic of the product that renders it unreasonably dangerous and (2) his damages arose from a reasonably anticipated use of the product. Kampen v. American Isuzu Motors, Inc., 157 F.3d 306 (5th Cir.1998) (en banc); Johnson v. Black & Decker U.S., Inc., 29,996 (La.App.2d Cir. 10/31/97), 701 So.2d 1360, writ denied, 97-2971 (La.2/6/98), 709 So.2d 741. In the instant case, the first jury interrogatory asked the jury if it found by a preponderance of the evidence that the Bronco was unreasonably dangerous because an adequate warning had not been provided. Since the jury answered this question in the negative, however, the jury did not have to answer the second interrogatory which asked that, if an unreasonably dangerous condition did exist at the time the Bronco left the control of Ford, whether the jury also found by a preponderance of the evidence that the unreasonably dangerous condition arose from its reasonably anticipated use. In addition, since the first jury interrogatory was answered in the negative, the jury did not have to answer the third jury interrogatory which asked that, if an unreasonably dangerous condition did exist, whether it was the proximate cause of the injuries to Plaintiffs. Since we hold that the jury’s finding is reasonable, it is unnecessary to discuss the second or third jury interrogatories here.

      . See e.g., Ballam v. Seibels Bruce Ins. Co., 97-1444 (La.App. 4th Cir.4/1/98), 712 So.2d 543, writ denied, 98 1168 (La.6/19/98), 720 So.2d 1213; Black v. Gorman-Rupp, 94-1494 (La.App. 4th Cir.5/16/95), 655 So.2d 717; Moore v. Chrysler Corporation, 596 So.2d 225 (La.App. 2d Cir.1992), writs denied, 599 So.2d 316, 317 (La.1992); Brodtmann v. Duke, 96-0257 (La.App. 4th Cir.2/11/98), 708 So.2d 447, cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998); Cannon v. Cavalier Corporation, 572 So.2d 299 (La.App. 2d Cir.1990); Gines v. State Farm Fire and Casualty Co., 516 So.2d 1231 (La.App. 2d Cir.1987), writ denied, 519 So.2d 127 (La.1988); Clark v. Jesuit High School of New Orleans, 572 So.2d 830 (La.App. 4th Cir.1990), writ denied, 576 So.2d 48 (La.1991); Hooker v. Super Products Corporation, 98-1107 (La.App. 5th Cir.6/30/99), 751 So.2d 889, writs denied, 99-2911, 99-2947 (La.12/17/99), 751 So.2d 880, 884; Moore v. Safeway, Inc., 95-1552 (La.App. 1st Cir. 11/22/96), 700 So.2d 831, writs denied, 97-2921, 97-3000 (La.2/6/98), 709 So.2d 735, 744; Lacrouts v. Future Abrasives, Inc., 99-583 (La.App. 5th Cir.11/10/99), 750 So.2d 1063, writ denied, 99-3484 (La.2/11/00), 754 So.2d 941; Simon v. American Crescent Elevator Co., 99-2058 (La.App. 4th Cir.4/26/00), 767 So.2d 64, writ denied, 00-1974 (La.11/13/00), 773 So.2d 726.