text:
    STATE of Louisiana v. Mervyn WILLIAMS.
    No. 02-KA-645.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.

      Paul D. Connick, District Attorney, State of Louisiana, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, for State of Louisiana, Plaintiff/Appellee.
    Cary J. Deaton, New Orleans, LA, for Mervyn Williams, Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

Defendant, Mervyn Williams, along with co-defendants, Steven Bailey and Anthony Gusman, were indicted by a grand jury on January 4, 1996 with two counts of first degree murder in violation of LSA-R.S. 14:30. Defendant pled not guilty and filed several pre-trial motions including a motion to suppress identification. After a hearing, his motion to suppress identification was denied. Defendant proceeded to trial along with his two co-defendants on August 10, 1998. Trial lasted approximately three and one-half weeks, two of which consisted solely of jury selection. After deliberating for approximately five hours, the jury was unable to agree on a verdict.

Thereafter, a motion to sever the parties was granted. Defendant filed additional pre-trial motions including a motion in li-mine regarding evidence of gangs and reurged his prior motion to suppress identification. A ruling on the motion in limine was deferred to trial and the trial court again denied defendant’s motion to suppress identification. On October 25, 1999, the State amended the indictment reducing the charges against defendant to two counts of second degree | ¡¡murder in violation of LSA-R.S. 14:3o.!. On the same day, defendant waived his right to a jury and proceeded to a bench trial. After four days of testimony, the trial judge found defendant guilty as charged on both counts. He was sentenced to life imprisonment on each count to run concurrently without the benefit of parole, probation or suspension of sentence.

FACTS

Shortly after midnight on November 23, 1995, victims, Ramona Osborn and Theodore McCullum, were fatally shot while driving through the Harvey Tunnel. Osborn was driving a red Mitsubishi with passengers Theodore McCullum, Brian Payne, Peter Rodrigue, Kevin Dorsey and Sahara Gilmore, according to testimony of Peter Rodrigue. The group had left a party and were heading home on the elevated portion of the Westbank Expressway when Rodrigue noticed two cars, a little blue car and a black Grand Prix which he recognized as belonging to “Sca-boo” Bailey (a/k/a Steven Bailey). Ro-drigue was concerned and instructed Osborn to slow down and let the cars pass. Osborn exited the expressway and entered the Harvey tunnel. Once in the tunnel, they heard shots coming from behind. Rodrigue told Osborn to stop but she was nonresponsive. He grabbed the steering wheel and guided the car. The offending vehicle, the little blue car, pulled along side Osborn’s car at which time Rodrigue looked over at it and saw a rifle and a handgun. He further saw that the driver resembled “Whiteboy” (a/k/a |4Anthony Gusman) and the front seat passenger resembled defendant. The shooting ended when Osborn’s car came to a stop outside the tunnel.

On the night of the shooting, Deputy Aaron Wilkie was working a detail at a ear dealership approximately one-half mile away from the Harvey Tunnel when he heard shots. He got into his unit and drove around trying to locate the source of the shots. Within minutes, Deputy Wilkie came upon the crime scene on the eastbound up-slope of the Harvey Tunnel. He found the driver, Osborn, conscious but incoherent. He found the front seat passenger, later identified as Peter Rodrigue, seated upright, dazed and unable to communicate. He observed one back seat passenger, later identified as Kevin Dorsey, sitting behind the driver with his eyes wide open in apparent shock and another back seat passenger, later identified as Brian Payne, lying on his stomach across the transmission hump. He also saw McCullum lying half in the car and half out of the car with a gunshot wound to his head.

Osborn was shot ten times. She suffered a lethal wound to her spleen and lung and one potentially lethal wound to her stomach. She was taken to the hospital where she later died. McCullum suffered a graze wound to his skull, where the bullet went through his upper scalp and caused a fracture of the skull resulting in a lethal injury to his brain. He died at the scene. The other passengers were also injured. Kevin Dorsey was shot in the foot and Peter Rodrigue was shot in the hand, chest, back, hip and left thigh.

Detective Steve Buras and Sergeant Gray Thurman processed and investigated the crime scene. Numerous casings and fragment projectiles were found throughout the eastbound lane of the Harvey tunnel. The casings and fragment projectiles were identified as coming from the same .32 caliber weapon and AK47. The red Mitsubishi had several bullet holes on the driver’s side of the car and in the rear of the car near the license plate and the windows were shot out.

|KPuring the course of his investigation, Sergeant Thurman interviewed passenger Peter Rodrigue, who was in ICU at Charity Hospital for the injuries he sustained in the shooting. Rodrigue described the person involved in the shooting. Sergeant Thurman then compiled two photographic lineups and showed them to Rodrigue. Rodrigue identified defendant as being involved in the shooting. In a subsequent interview on December 8, 1995, Rodrigue identified defendant by name. An arrest warrant was obtained for defendant and a search warrant was obtained for his residence, 4143 Lac Bienville, Apt. C.

Surveillance was conducted of 4143 Lac Bienville prior to the execution of the search warrant. A car leaving the premises was stopped and defendant was found to be inside. He was arrested pursuant to the warrant for his arrest and taken to the detective bureau. Thereafter, the police executed the search warrant. Among items found and seized during the execution of the search warrant were a bag with 12 blue and black bandanas, various weapons and ammunition, three original lyrics of a song/poem written in pencil on loose leaf paper and a photo album with pictures and a torn caption from the newspaper, “No suspects in shooting.”

Both passengers and shooting victims, Kevin Dorsey and Peter Rodrigue, testified that they were members of the Bloods gang, who wear the color red. Rodrigue testified that passenger Brian Payne was a Blood gang member, passenger Sahara Gilmore lived in a Blood neighborhood and victim Ramona Osborn was affiliated with the Bloods. Rodrigue stated that in November 1995 there was a territory problem between the Bloods and the Crips gang. He stated that the Crips, who wear the color blue, would come through the Bloods’ territory “throwing up” their gang signs. He specifically testified that defendant and Anthony Gusman came through throwing up signs on the morning of the shooting. Detective Maurice Wilson, an expert in the field of gangs, their colors, signs and 1 filanguage, explained gang signs and the ways to disrespect a gang’s sign. He testified that the photographs in the photo album, S-36, depicted Crip gang members flashing their signs and disrespecting Blood signs. Dorsey testified that defendant was pictured in that photo album throwing a “Blood killer” sign. Sgt. Thurman testified that he classified the shooting as a “gang shooting.”

At trial, defendant presented an alibi witness, Capricia Lucas. Lucas, defendant’s girlfriend, testified that defendant was home with her at the time of the shooting. Defendant also presented the testimony of Sorrell Duncan, an admitted Crip gang member, who testified that defendant was not in a gang and disputed the fact that defendant was throwing a Crip or Blood killer sign in the photograph admitted into evidence. Duncan also testified that the rap song labeled as S-33, containing the reference to the tunnel, was written by rap artist “G-Slim” (a/k/a Kenneth Jackson), who has since died from a gunshot wound. Duncan stated that defendant was not “rapping” with them when the song was written. Kevin Dorsey, who was called to testify by the defense, testified that Kenneth Jackson was the driver of the offending car and Anthony Gusman was the passenger and shooter. Dorsey denied ever seeing defendant in the tunnel on the night of the shooting.

DISCUSSION

In assignments of error numbers one, three and four, defendant contends that the statements of Peter Rodrigue were insufficient to support his conviction. By these assignments of error, defendant argues there was insufficient evidence to convict him of second degree murder because there was unreliable identification evidence. Peter Rodrigue was the only witness who identified defendant as being involved in the shooting. Defendant claims Rodrigue’s identification is untrustworthy because 1) the shooting occurred late at night, 2) Rodrigue was on drugs and alcohol which affected his perception at the time of the shooting, 3) ^Rodrigue had only a split-second view of the perpetrator, and 4) Rodrigue was trying to drive the vehicle after the driver had been shot. Defendant contends these factors render the identification of him as the perpetrator of the crime highly unreliable and, therefore, insufficient to prove the element of identity beyond a reasonable doubt.

Defendant further contends other witnesses negate Rodrigue’s identification. In particular, defendant points out that Kevin Dorsey, who was riding behind the victim, Osborn, testified that he did not see defendant in the offending car. Additionally, Capricia Lucas testified defendant was at home with her on the night of the shooting.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the identity of the perpetrator. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask itself whether it believes that the evidence at trial established guilty beyond a reasonable doubt. A reviewing court is required to consider the whole record, and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. The actual trier of fact is presumed to | shave acted rationally until it appears otherwise. State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

Peter Rodrigue was the only witness to identify defendant as being involved in the shooting. He was a front seat passenger in Osborn’s car. He testified that when he looked over at the offending car he could see in the front seat but could not see who was in the back seat. He stated he saw “[a] shape that resembled one of the defendants over there and his partner in crime, Mervyn. I seen a heavy-set guy on the passenger side with a lightweight afro with a hat over his head, you know, kind of heavy build and the driver with the pony tail that resemble White Boy.”

Rodrigue admitted that he had used a marijuana joint dipped in PCP earlier on the day of the shooting but denied that it had any affect on his vision or perception. Dr. William George, an expert in pharmacology and toxicology, testified that marijuana and PCP can affect a person’s reliability and accuracy in reporting events. He explained marijuana decreases sensory perception and PCP creates sensory dissociation. He further testified that the drugs’ acute effects usually last four to six hours depending on dosage. A high dose can have lingering effects for up to 24 hours.

Rodrigue also testified that he gave Sgt. Thurman “Scaboo’s” name when Sgt. Thurman first visited him at Charity. It was not until Sgt. Thurman’s next visit that Rodrigue gave him the names of defendant and “Whiteboy.” Rodrigue explained that he did not want to give Sgt. Thurman all the names because he initially wanted to handle the situation himself without involving the court. He stated that he turned over the names when he almost died from his injuries.

Sgt. Thurman testified that Rodrigue did not identify defendant during their first interview on November 27, 1995. However, the next day, Sgt. Thurman showed Rodrigue two photographic lineups from one of which Rodrigue | identified defendant. Additionally, during his trial testimony, Rodrigue positively identified defendant as a perpetrator of the shooting.

Defendant argues Rodrigue’s identification was unreliable because he was on drugs at the time of the shooting and because other witnesses stated they did not see defendant at the scene of the shooting. It is the fact finder’s function to determine the weight of the evidence bearing on the defendant’s identification. It is not the appellate court’s function to reevaluate the credibility choices made by the fact finder. State v. Spencer, 93-571 (La.App. 5 Cir. 1/25/94), 631 So.2d 1363, 1370, writ denied, 94-488 (La.2/3/95), 649 So.2d 400.

The trial court heard the evidence of Dr. George regarding the effects drugs can have on a person’s perception. Dr. George was only able to testify in generalities. He noted Rodrigue’s medical records from Charity indicated an overdose of PCP. However, he stated Rodrigue’s medical records did not indicate he was suffering from nystagmus, or rapid eye movement, indicative of drug use. Dr. George testified about the possibilities of the drugs’ effects and stated the effects were dose dependent. He did not know the amount of drugs taken by Rodrigue or even when Rodrigue had taken the drugs. Dr. George explained the acute effects of the drugs last between four to six hours and decrease significantly over time. Rodrigue testified that he last used PCP on the morning of the shooting which occurred shortly after midnight.

Additionally, the trial court heard the testimony of Capricia Lucas, who testified defendant was home with her at the time of the shooting, and Kevin Dorsey, a back seat passenger of Osborn’s car who testified he did not see defendant in the tunnel on the night of the shooting. Lucas testified that defendant was her boyfriend and the father of her two children. It is not unreasonable to conclude that Lucas had an interest in protecting defendant.

ImDorsey testified for the State during the first trial but testified for the defense in the second trial. At the second trial, for the first time, Dorsey identified the driver of the offending car as “G-Slim”, Kenneth Jackson. He maintained Anthony Gusman was the passenger of the offending car and that he did not see defendant in the tunnel on the night of the shooting. Dorsey admitted he has lied a lot throughout this case and that someone told him who the driver was of the offending car. He stated he could not be sure the driver was Jackson. Dorsey further admitted that he could not say whether defendant was or was not in the offending car.

The trial court heard all of the evidence and apparently chose to believe Rodrigue’s testimony identifying defendant as either the perpetrator of or a principal to second degree murder. Ro-drigue positively identified defendant as one of the perpetrators of the crime in a photographic line-up and again in court. Positive identification by only one witness is sufficient to support a conviction. State v. Cowart, 01-1178 (La.App. 5 Cir. 3/26/02), 815 So.2d 275, 283, citing State v. Mussall, supra at 1311. Viewing the evidence in a light, most favorable to the prosecution, we find that the State sufficiently negated any reasonable probability of misidentification and a rational trier of fact could find, beyond a reasonable doubt, that defendant was the perpetrator of or a principal to the crime of second degree murder.

11 In assignment of error number two, defendant essentially argues that the trial court committed reversible error in allowing Peter Rodrigue’s testimony from the first trial to be used in the second trial. He contends the State did not make a diligent effort to locate Rodrigue and, thus, he did not qualify as an unavailable witness. Defendant maintains this prevented him from cross-examining Ro-drigue in the second trial regarding his identification of him as being involved in the shooting, which was crucial to defendant’s defense.

Prior to trial on August 16, 1999, the State made a motion to use the prior testimony of Rodrigue at trial under the authority of LSA-C.E. art. 804B(1). The trial court initially denied the motion but granted the State a continuance to give it more time to locate Rodrigue. When trial commenced on October 25, 1999, the State again made a motion to use the prior testimony of Rodrigue and a hearing was held. This time the trial court granted the State’s motion and ruled that the transcript and tape of Rodrigue’s prior testimony could be used at trial.

LSA-C.E. art. 804B(1) permits the introduction of former testimony of an unavailable witness taken at another hearing if the party against whom the testimony is offered had the opportunity to develop the testimony by direct, cross, or redirect examination. An unavailable witness is defined as a declarant who “cannot or will not appear in court and testify to the substance of his statement made outside of court” including situations where the de-clarant “is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.” LSA-C.E. art. 804A(5).

In State v. Robinson, 423 So.2d 1053, 1058 (La.1982), the supreme court explained that when testimony taken at a prior proceeding is to be used at trial, there must be an examination into whether there has been a violation of the defendant’s right to confrontation under the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution. In order to |1?avoid offending the confrontation and cross-examination clauses of the federal and state constitutions when using prior testimony at a subsequent trial, the following conditions must be met: 1) defendant must have been represented by counsel át the earlier hearing; 2) the witness testified under oath; 3) the witness was cross-examined or else there was a valid waiver of the right to cross-examination; 4) at the time of the trial, the witness is unavailable or unable to testify; and 5) the State has made a good faith diligent effort to obtain the presence of the witness, including by its out-of-state subpoena powers where appropriate. State v. Robinson, supra, citing State v. Hills, 379 So.2d 740, 743-744 (La.1980).

The first three conditions have been met: 1) defendant was represented by counsel during the first trial, 2) Rodrigue testified under oath during the first trial, and 3) Rodrigue was cross-examined by three different attorneys. The inquiry is whether Rodrigue was truly unavailable for trial and whether the State made a good faith diligent effort to obtain his presence.

At the August 16, 1999 hearing on the motion to use prior testimony, the State presented the testimony of Sergeant Gray Thurman. Sgt. Thurman testified that he had made several unsuccessful attempts to locate Rodrigue since his last personal contact with him in September 1998, the date of the first trial. He explained that he obtained several contact numbers from Ro-drigue in the event he left town. Rodrigue gave Sgt. Thurman the phone number of an aunt in Seattle and the street address of a second aunt in Seattle. Sgt. Thurman called the aunt in Seattle three times but received no return calls. He went to Ro-drigue’s mother’s last known address in Harvey but found the house vacant with no electrical meter. He checked Rodrigue’s mother’s driver’s license for a new address to no avail. He paged Rodrigue’s mother though a beeper number he had but was unsuccessful. Sgt. Thurman then contacted Rodrigue’s grandmother who advised Rodrigue’s |13mother had moved out of town. He also attempted to locate Ro-drigue’s half-sister at Charity Hospital, where she used tó work, but discovered she no longer worked there.

Sgt. Thurman further testified he contacted the Seattle Police Department and requested help in serving a subpoena on Rodrigue at two different addresses. He was advised by the Seattle Police Department that Rodrigue had a felony arrest warrant in Seattle. Sgt. Thurman learned of several addresses in Monroe where Ro-drigue could possibly be. He gave the Monroe Police Department four different addresses and asked them to serve the subpoena on Rodrigue. However, Sgt. Thurman was told Rodrigue did not live at any of the addresses. All of the above efforts took place between July 22, 1999 and August 13,1999.

At the hearing on the State’s motion to use Rodrigue’s prior testimony on the day of trial, Sgt. Thurman testified that since the last hearing, he and Donnie Rowan, the assistant district attorney, traveled to Seattle to locate Rodrigue. He stated they met with the Seattle Police Department who assisted in the search. The Seattle Police Department distributed a “wanted” flyer to officers who patrol the area where Rodrigue was believed to be. They went to Rodrigue’s mother’s address three times and conducted surveillance on the apartment for one hour. They located Rodrigue’s mother, aunt and girlfriend but were unable to locate Rodrigue. Additionally, a material witness warrant was issued for Rodrigue.

The lengths to which the State must go to try to produce a witness is a question of reasonableness. State v. Robinson, 423 So.2d at 1059. In State v. Fuller, 32,734 (La.App. 2 Cir. 12/17/99), 759 So.2d 104, 108, writ denied, 00-159 (La.8/31/00), 766 So.2d 1273, the Second Circuit found the State’s efforts to locate a witness sufficient to satisfy a good faith diligent effort. In Fuller, the investigator for the district attorney’s office testified that he contacted the witness’ family in excess of five times in an attempt to serve a subpoena on the witness. He | uwas told the witness rarely visited the family home. On one occasion, the witness’ mother told the investigator she had relayed the information to the witness; however, the witness never contacted the investigator. The investigator then obtained information that the witness lived out of town. He tried to locate the witness at the out-of-town address through that town’s local sheriffs office but they were unable to locate the witness. The investigator opined that the witness was attempting to dodge service of the subpoena.

Defendant cites State v. Kaufman, 304 So.2d 300 (La.1974), to support his position that the State failed to make a diligent effort to secure Rodrigue’s appearance for trial. In Kaufman, the Supreme Court found the State’s efforts to locate four witnesses on the eve of and during trial to be perfunctory. The Supreme Court concluded the State’s efforts fell short of the diligent and good faith efforts required to locate a witness before he can be found to be unavailable so as to permit his testimony by paper instead of in person. The investigator in Kaufman did little more than try to locate the witnesses at their last known addresses and through utility and telephone records. The investigator learned that one witness had moved to Houston but did not follow up with that information. The Supreme Court criticized the investigator’s failure to exhaust all his avenues of information such as checking with a witness’ former employer in one instance and locating one witness’ husband in another instance.

The record in the present case demonstrates that Rodrigue was avoiding service of the subpoena. Sgt. Thurman testified he had a few problems with Rodrigue not wanting to testify during the first trial. Additionally, Rodrigue was dodging a felony arrest warrant in Seattle. The State’s efforts to locate Rodrigue clearly exceed those efforts made in Kaufman as well as Fuller. Furthermore, it is noted that Ro-drigue was fully cross-examined on the issue of identification during the first trial. Therefore, we find no error of the trial court in finding the State 11smade a diligent good faith effort to locate Rodrigue and concluding Rodrigue was an unavailable witness so as to allow his prior trial testimony to be used during the second trial.

By his final assignment of error, defendant argues that the trial court erred in failing to exclude so much testimony about gang activity and culture. He alleges testimony about gang activity is a violation of LSA-C.E. 404B, which prohibits the use of evidence of other crimes or bad acts to show bad character of the defendant in order to show he acted in conformity therewith. Defendant specifically claims the references to defendant’s use of gang hand signals in certain pictures was irrelevant to the specific act of the shooting.

Prior to trial, defendant filed a motion in limine to prevent evidence of gang activity as impermissible evidence of other crimes or bad acts. In a hearing on March 26, 1999, the trial court denied the motion in part. At a later hearing on August 16, 1999, defendant re-urged his motion in li-mine. The trial court deferred its ruling to the trial.

LSA-C.E. art. 404B(1) provides:

[EJvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The admissibility of such evidence is dependent on three things: 1) the factors listed in Article 404B must be at issue and have some independent relevance, 2) the State must prove defendant committed the other acts by |1ficlear and convincing evidence, and 3) the requirements of Prieur must be met. State v. Miller, 98-301 (La.9/9/98), 718 So.2d 960, 962. Even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay or waste of time. LSA-C.E. 403.

Clearly, evidence of other crimes or bad acts will no doubt be prejudicial since all evidence which tends to make it more probable than not that an individual committed a criminal offense is necessarily prejudicial. State v. Dickerson, 00 951 (La.App. 5 Cir. 11/2/00), 772 So.2d 845, 852, writ denied, State ex rel. Dickerson v. State, 00-3515 (La.8/31/01), 795 So.2d 1209. However, as the Louisiana Supreme Court explained in State v. Humphrey, 412 So.2d 507, 520 (La.1981), the underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime.

A trial court’s ruling on the admissibility of evidence pursuant to LSA-C.E. art. 404B(1) will not be disturbed absent an abuse of discretion. State v. Richard, 01-952 (La.App. 5 Cir. 1/29/02), 807 So.2d 1129, 1136.

Throughout the trial, various references were made to the defendant’s and the victims’ involvement in gangs. A gang expert testified about gang culture and their signs and language. Defendant objected at every junction on the basis it was irrelevant evidence of other crimes or bad acts. The trial court overruled the majority of defendant’s objections and allowed testimony and evidence pertaining to the parties’ involvement in gangs. A photo album containing pictures of defendant and others was allowed into evidence. On appeal, defendant complains |17of the testimony of the gang expert that the people in the picture, including defendant, are flashing Crip gang signs and disrespecting Blood signs.

The Second Circuit has noted that

[i]n today’s society, members of gangs are not regarded as model citizens. There is an inherent connotation that a gang member is involved in criminal activity. The fact that [a] defendant was a gang member could ... create an image of a bad person in the eyes of the jury.

State v. Barnes, 28,835 (La.App. 2 Cir. 12/11/96), 685 So.2d 1148, 1155. In Barnes, the court determined that evidence of the defendant’s gang affiliation was prejudicial because the evidence was not relevant to any of the essential elements of the armed robbery. However, the court concluded the error was harmless.

Unlike armed robbery, second degree murder is a specific intent crime. In the present case, defendant’s gang affiliation had independent relevance in establishing defendant’s motive and intent.

In State v. Gibson, 99-2827 (La.App. 4 Cir. 4/11/01), 785 So.2d 213, 221, writ denied, 01-1458 (La.4/19/02), 813 So.2d 418, the Fourth Circuit found that evidence of a prior shooting was admissible to show defendant’s motive in a subsequent drive-by shooting. The court noted the apparent motive for the subsequent drive-by shooting was an earlier altercation between the parties.

In the present case, the evidence showed the shooting was gang-related. There was evidence of a territorial conflict between the Crips and Bloods. The evidence showed gangs members would “throw up signs” some of which were disrespectful to the opposing gang. Defendant’s affiliation with the Crip gang and his use of gang hand signs was relevant to show his motive to specifically injure the victims, who were affiliated with a rival gang, the Bloods.

1S Moreover, even assuming that the evidence of gang culture was improperly admitted, reference to evidence of other bad acts is subject to the harmless error rule. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. State v. Richard, 807 So.2d at 1137. The State presented evidence that identified defendant as one of the perpetrators of the crime. Considering this evidence, the testimony that defendant was a gang member would not have contributed to his guilty verdict.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matter was discovered:

While the minute entry shows that defendant was advised of the prescriptive period for post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8, the transcript does not. Where there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, the trial court is hereby instructed to inform defendant of the two-year prescriptive period by sending written notice to defendant within ten days after the rendition of the appellate opinion and to file written proof in the record that defendant received such notice. State v. Cordero, 99-44 (La.App. 5 Cir. 6/1/99), 738 So.2d 84, 93, writs denied, 99-1877 and 99-1878 (La.11/24/99), 750 So.2d 981.

| ^DECREE

Accordingly, for the reasons assigned herein, the conviction and sentence of defendant, Mervyn Williams, is affirmed. The case is remanded to the trial court with instructions for the trial court to inform the defendant of the prescriptive provisions for seeking post-conviction relief pursuant to La. C.C.P. art. 930.8.

AFFIRMED; CASE REMANDED WITH INSTRUCTIONS.

      . Of some note, the charges against co-defendant Steven Bailey were dismissed on September 21, 1999.

      . The record uses different spellings of Brian Payne: “Brian” and "Bryan” and "Payne” and “Pane”.

      . As discussed infra in detail, Peter Rodrigue did not testify in person at the second trial. His tape-recorded testimony from the first trial was played into evidence at the second trial. The trial court followed along with a transcript of the recorded testimony. Although the trial court asked that a copy of the transcript be marked and made a part of the record, it was not. However, a transcript of Rodrigue's trial testimony was used as an exhibit during a hearing on the State's motion to use prior testimony and is included in the record.

      . Since defendant has only alleged the State failed to prove he was the perpetrator of the crime, we need not address the sufficiency-of the evidence with respect to the statutory elements of second degree murder.

      . Writs in the Cowart case were filed with the Louisiana Supreme Court on May 24, 2002, No.2002-K0-1457, but no ruling had been rendered as of the date of this opinion.
      In Cowart, only one witness identified the defendant as the perpetrator of the shooting and there was no physical evidence linking defendant to the crime. The defendant attacked the reliability of the witness' identification arguing the witness was a convicted felon, had received psychiatric care, had initially lied to the police about witnessing the murder, perjured herself during motion hearings and changed her story about the location and lighting of the crime scene and the number of shots she heard. Additionally, the defendant argued the physical descriptions of the suspects seen fleeing the scene varied from his physical description.
      This Court determined the witness had not perjured herself and that she rationally explained why she initially lied to the police. This Court further concluded the various discrepancies among testimony and changes in the key witness’ story were inconsequential. This Court also explained that it was within the jury’s discretion to believe the witness' testimony despite her prior conviction and psychiatric treatment.

      . All three defendants were tried together in the first trial and each was represented by separate counsel, all who conducted their own cross-examinations of Rodrigue.

      . A transcript of the hearing on the motion in limine is missing from the appellate record. However, the minute entry shows the trial court denied the motion in limine on March 26, 1999.

      . State v. Prieur, 277 So.2d 126 (La.1973).


source: Caselaw Access Project

author: I,STEVEN R. PLOTKIN, Judge. J^STEVEN R. PLOTKIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Sherwin JOHNSON and James C. Madina.
    No. 2001-KA-2334.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.
    Order Granting Rehearing Jan. 7, 2003.

      Harry F. Connick, District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Michael H. Idoyaga, Yates & Idoyaga, LLC, New Orleans, LA, for Defendant/Appellant, James C. Madina.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Sherwin Johnson.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY).
   I,STEVEN R. PLOTKIN, Judge.

The issue in this appeal is whether the trial court erred in failing to sanction the violation of its sequestration order. For the reasons below, we affirm the decision of the trial court.

PROCEDURAL HISTORY

James C. Madina and Sherwin Johnson were charged with attempted armed robbery, a violation of La. R.S. 14:27(64). The defendants pled not guilty at their arraignment. The trial court found probable cause and denied motions to suppress the identification. On August 29, 2001, Madina and Johnson withdrew their not guilty pleas and pled guilty as charged, reserving their rights under Alford and Crosby That same day, the trial court sentenced James C. Madina to three years without benefit of parole, probation or suspension of sentence, with credit for time served, and Sherwin Johnson to time served, sentence to run concurrently with any parole time being served from June 21, 2001, the date the defendant were charged.

| ¡.STATEMENT OF FACTS

Detective Edward Deiringer investigated the June 21, 2001, attempted armed robbery of the Phuc Loc grocery store. At the scene he met with the victims Ms. Ngoc Trinh, the store cashier, and her fifteen-year-old daughter, Thuy Trinh. The victims told Detective Deiringer that three armed black males entered the store, pointed their guns at Ms. Ngoc Trinh, and demanded that she open the cash register. When she refused, the armed assailants attempted to open the register but were thwarted in their efforts, and ran away empty handed when the register emitted a loud noise. Both victims identified James Madina, a regular patron from the neighborhood, as one of their assailants. Ms. Ngoc Trinh provided the detective with a photograph of Madina posing with her daughter, Thuy Trinh, directed the detective to Madina’s apartment in the nearby Gulfway Terrace apartment complex, advised him that the perpetrators left the store in a white Mustang, and supplied physical descriptions of the perpetrators. The officers located the white Mustang in the apartment complex, and observed three men, who fit the descriptions supplied by the victims, exiting the apartment parking lot driving a black car. The officers stopped the suspects, and returned them the store where the victims positively identified Madina and Johnson as two of their assailants.

ERRORS PATENT

Counsel for James C. Madina filed a brief requesting a review for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel moved to withdraw because he believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed available transcripts and found no trial court ruling, which arguably supports the appeal. A copy of the brief was forwarded to defendant, and this Court informed him that he had the right to file a brief in his own behalf. The defendant did not file a brief.

As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appeal record. Defendant was properly charged by bill of information with a violation of La. R.S. 14:27(64), and the bill was signed by an assistant district attorney. Defendant was present and represented by counsel at arraignment, guilty plea and sentencing. The record reveals that the defendant was properly informed of his rights and an effective waiver of those rights was obtained before the guilty plea was accepted by the court in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The sentence is legal in all respects. An independent review of the record reveals no non-frivolous issue and no trial court ruling, which arguably support the appeal. Thus, there are no errors patent on the face of the record as to defendant Sherwin Johnson.

ASSIGNMENT OF ERROR

In a sole assignment of error, Johnson argues that the trial court erred when it permitted the testimony of State’s witness, Thuy Trinh, after she allegedly violated a sequestration order imposed on the witnesses by the trial judge.

14Both victims testified during the August 9, 2001, motion hearing. Prior to Ngoc Trinh’s testimony, counsel for James Madina requested a sequestration order, which the trial court imposed. During part of Ngoc Trinh’s testimony defense counsel observed Thuy Trinh in the courtroom. Defense counsel informed the judge of Thuy’s presence, and objected to the trial court’s permitting Thuy Trinh to testify. La.C.E. art. 615 governs the exclusion or sequestration of -witnesses, and it provides in pertinent part:

A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the -witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the following:
(1) A party who is a natural person.
(2) A single officer or single employee of a party which is not a natural person designated as its representative or case agent by its attorney.
(3) A person whose presence is shown by a party to be essential to the presentation of his cause such as an expert.
(4) The victim of the offense or the family of the victim.

In the instant case the judge ordered, “the other witnesses be sequestered.” Thuy Trinh’s presence in the courtroom during her mother’s testimony was not a violation of the sequestration order because Thuy Trinh was a victim, as well as the daughter of Ngoc Trinh, the second victim in this case. Therefore, she had a right to be in the courtroom and was not subject to the sequestration order.

| ¡¡Further, the purpose of a sequestration order is to prevent a witness from hearing or learning of the testimony of the other witnesses before he takes the stand, preventing the witness from deliberately tailoring his testimony to that of other witnesses. A sequestration order is also intended to exclude conscious and subconscious influence by one witness upon another. An order sequestering the witnesses is designed to do two things: (1) insure that a witness will testify from to his own knowledge of the case without being influenced by the testimony of another witness and (2) strengthen the role of cross-examination in developing facts. State v. Kimble, 407 So.2d 693 (La.1981).

In this case, the record shows that Thuy Trinh’s testimony was not influenced by her mother’s testimony, and that the defendant’s ability to cross-examine Thuy Trinh was not undermined. Thuy Trinh’s testimony at the motion hearing was identical to the information she provided Detective Deiringer on the day of the offense. Thuy Trinh told the detective that she knew one of the perpetrators as “James” and that he lived in the Gulfway Terrace apartment complex, near the store. Thuy Trinh provided the detective with a picture of herself posing with James Madina. She gave Detective Deiringer a physical description of the perpetrators, and identified the defendants in a lineup in the store parking lot. On cross-examination Thuy Trinh admitted that she heard part of her mother’s testimony. However, the record reflects that Thuy Trinh’s testimony was not influenced by her mother’s testimony as she testified to exactly the same information she provided Detective Deiringer on the night of the offense. The 1 ^defendant has not shown that Thuy Trinh’s testimony undermined his ability to cross-examine her. See State v. Lewis, 367 So.2d 1155 (La.1979). Defense counsel’s thorough cross-examination of Thuy Trinh failed to reveal any discrepancies between her testimony at the motions hearings and the information she supplied to the police the night of the offense. Thus, even if Thuy was not exempt from the sequestration order, her presence in the courtroom did not affect her testimony.

CONCLUSION

For the foregoing reasons, we find that the trial court did not err in admitting the testimony of Thuy Trinh into evidence. Defense counsel’s motion to withdraw is granted.

Therefore, the defendants’ conviction and sentence are affirmed.

AFFIRMED.

ON APPLICATION FOR REHEARING

J^STEVEN R. PLOTKIN, Judge.

Due to an administrative error defendant’s pro se brief was not considered in this Court’s original opinion. Thus, defendant’s claim of ineffective assistance of counsel is preserved for post conviction relief.

Defendant’s other claim was that the trial judge erred in not granting the motion to suppress the identification. The defendant alleges that the identification was tainted. There is nothing in the record to indicate that the district attorney improperly pointed to the defendant during the motion to suppress hearing. The transcript shows that Ngoc Trinh pointed to one of the men wearing a brown shirt and the district attorney was attempting to distinguish to whom Trinh was referring. Trinh testified that the police produced three men for her to view and she identified two of them. During the motion hearing she got off the witness stand, went to the defense table and identified the defendants as the two men who she had previously identified as the ones who attempted to rob her. Thus, this claim is without merit.

REHEARING GRANTED; RELIEF DENIED.

      . North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970) (permits a person accused of a crime to voluntarily and knowingly consent to the imposition of a prison sentence without admitting guilt). State v. Crosby, 338 So.2d 584 (La.1976) (preserves for appellate review alleged pre-plea errors).

      . The detective’s name is spelled interchangeably throughout the record as either “Deiringer” or "Dieringer”.

      . Thuy Trinh was in the store with her mother, Ngoc Trinh, the cashier in the store, when the three perpetrators attempted to rob the store. Thuy Trinh testified that during the attempted robbery, James Madina pointed a gun at her.

      . Overruled in part on other grounds, State v. Holden, 375 So.2d 1372 (La.1979).


author: JJDENNIS R. BAGNERIS, SR., Judge.

text:
    Marilyn SPITZFADEN, et al. v. DOW CORNING CORPORATION, Dow Corning Wright, et al.
    No. 98-CA-1612.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.
    Rehearing Denied Jan. 15, 2003.

      Richard L. Root, Betsy J. Barnes, Barnes & Root, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Charles M. Steen, Stephanie G. McShane, Steen, McShane & Williamson, L.L.C., New Orleans, LA, and John W. Donley, Kirkland & Ellis, Chicago, IL, and H. Alston Johnson, III, Phelps Dunbar, L.L.P., Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., and Judge MICHAEL E. KIRBY.).
   JJDENNIS R. BAGNERIS, SR., Judge.

Defendant Dow Chemical appeals the trial court’s judgment, which found that, notwithstanding the decertification of the class, the Phase I verdict was binding on all absent former class members and the eight individual plaintiffs.

FACTS AND PROCEDURAL HISTORY

On February 12, 1992, Mary Spitzfaden filed suit individually and as the putative representative of a class of claimants comprised of Louisiana residents who received silicone gel breast implants and of nonresidents whose breast implant surgeries were performed in Louisiana. The petition named as defendants Dow Corning Corporation, Dow Corning Wright Corporation, and Southern Baptist Hospital. Orí February 20, 1992, plaintiffs added as defendants McGhan Medical Corporation, Mentor Corporation, Bristol Myers Squibb Company, Surgitek, Inc., Baxter Health Care Corporation, Natural Surgical Specialties, Inc., Bioplasty Corporation, and Heyer-Schulte Corporation.

On March 3, 1992, plaintiffs filed a Second Supplemental and Amending Petition naming nine new plaintiffs and one Jane Doe as class representative. On |gMarch 4, 1992, the trial court certified a class action, a decision that this Court affirmed in May 1998.

On March 3, 1994, the plaintiffs filed a Third Supplemental and Amending Petition adding forty-eight defendants, including Dow Chemical, to this matter. The Third Supplemental and Amending Petition also expanded the class by adding recipients of saline and polyurethane implants, and dropping any requirement of injury or future injury as a condition of membership in the class. After filing this Third Supplemental and Amending Petition, plaintiffs’ counsel neither requested certification of their expanded class nor certification of the claims against any of the forty-eight new defendants. On March 10, 1995, plaintiffs filed a Fourth Amended Petition, which added new parties and brought the total number of defendants to more than a hundred.

In May 1996, the trial court entered a Case Management Order scheduling a trial against defendant Dow Chemical for March 1997. On March 13, 1997, two weeks before trial, the trial court issued another Case Management Order, which divided the trial into four phases. The jury was to be dismissed after the trial of Phase II. The order called for common issues to be tried in Phase I, listing the following nine issues as to be tried in Phase I:

(1) Whether defendant, Dow Chemical, was negligent in its researching and testing of silicones.
(2) Whether defendant, Dow Chemical, was negligent in failing to adequate-' ly disclose the risks and dangers of using silicones in the human body.
|ji(3) Whether defendant, Dow Chemical knowingly or intentionally kept silent about, concealed or suppressed information about the risks and dangers of using silicones in the human body.
(4) Whether the information was material.
(5) Whether defendant, Dow Chemical knowingly or intentionally made any false or misleading statements about the safety or quality of using silicone in the human body.
(6) Were the above statements material.
(7) Whether defendant, Dow Chemical intentionally or willfully conspired or acted in concert with Dow Corning in doing any wrongful act or omission in connection with using sil-icones in the human body.
(8) Whether defendant, Dow Chemical aid and abet any wrongful acts or omissions of Dow Corning in connection with using silicones in the human body.
(9) Whether defendant Dow Chemical’s conduct kept breast implant recipients from being able to make informed decisions about or giving their informed consent to the insertion of Dow Corning silicone breast implants into their bodies.

The order reserved causation and damage issues for Phase II, listing the following four issues as to be tried in Phase II:

(1) Did silicones cause the injuries complained of in these plaintiffs [the class representatives]?
(2) Were the plaintiffs aware of the risks and danger of silicone in the body?
(3) If plaintiffs had known of risks would they have had the implants?
(4) Whether individual class reps had damages?

The order then called for Class Notice in Phase III, and the adjudication of damages for class members in Phase IV.

|40n March 28, 1997, the trial commenced and was tried intermittently until August 14, 1997. On August 18, 1997, a jury verdict was returned, which consisted of affirmative answers to seven interrogatories:

1. Do you find that Dow Chemical did research and/or testing of silicone for human implantation for Dow Corning?
2. Was Dow Chemical negligent in the above referenced testing and/or research of silicone?
3. Did Dow Chemical knowingly or intentionally remain silent, conceal or suppress information about the harms and dangers of using silicone in the human body?
4. Was the probability of that type of harm a risk which reasonable women would consider in deciding to be implanted?
5. Did Dow Chemical knowingly or intentionally make any false or misleading statements about the safety or quality of using silicone in the human body?
6. Was/Were the statement(s) of the nature that a reasonable woman would consider in deciding to be implanted?
7. Did Dow Chemical intentionally or willfully conspire or act in concert with Dow Corning in doing any wrongful act or omission in connection with using silicone in the human body?

On September 25, 1997, less than a month after the jury verdict was returned, Dow Chemical filed a motion in the trial court for decertification of the class. On December 1, 1997, the trial judge signed a judgment, which granted Dow Chemical’s motion for decertification. In the trial judge’s reasons for decertifying the class action, she stated, in pertinent part:

There are simply too many individual issues due to the fact that members of the class were implanted with various types of breast implants, at different times in varying degrees and the implants have caused different diseases. Additionally, there are individual questions regarding each class members [sic] lifestyle and medical condition which are paramount to causation. The time period whereby the | ¡^alleged torts were committed spans a thirty year period thus, requiring a different legal standard to be used for each plaintiff....
This case is complicated more so by the fact that there are over 40 defendants and individual questions of liability would have to be tried for each defendant or subclass. Each subclass would encompass still further individual questions of liability with that subclass....
Thus, this Court finds that the circumstances to maintain the class action in this instant case does not exist.

On December 8, 1997, plaintiffs filed two motions: the first was a Motion to Clarify, Reform, Amend, Rectify, or Modify Judgment of Decertification and/or Motion for New Trial and/or Reconsideration, and the second was a Motion for Recognition of Binding Effect of Phase I Verdict on all Dow Chemical Subdivision Class Members. Thereafter, Dow Chemical filed a motion to vacate the Phase I verdict as well as exceptions of improper venue and improper cumulation of actions relative to the eight individual plaintiffs.

On January 5, 1998, the trial judge denied plaintiffs’ motion for a new trial or reconsideration of the decertification ruling. Plaintiffs sought supervisory relief from this Court, as well as the Supreme Court, with respect to the denial of plaintiffs’ motion for a new trial or reconsideration of the decertification ruling, but the writs were denied. Thereafter, plaintiffs appealed the December 1, 1997 judgment, which decertified the class action. They later dismissed the appeal. Accordingly, the December 1, 1997 judgment, which decertified the class, is final and thus is not before this Court today.

On January 12, 1998, the trial judge denied the exception of improper venue, denied the motion to vacate the Phase I verdict, but granted the exception of improper cumulation of actions. On that same day, the trial judge ruled that, notwithstanding the decertification of the class, the Phase I verdict was binding on 1 fiall absent former class members, and issued a per curiam containing her reasons for that ruling. Specifically, the per cu-riam stated as follows:

Plaintiffs in this case have requested that this court issue a document addressing the binding effects of the order decertifying the class action made the subject of this suit.
On March 13, 1997, the Court issued a case management order dividing the Dow Chemical sub-class trial into four phases. Phase I of the trial was to deal with the conduct of Dow Chemical and the materiality of any alleged omission or alleged misrepresentation; Phase II was then to address the individual eight plaintiffs that the steering committee determined would be class representatives; Phase III then envisioned a Class Notice, and the adjudication of damages for class members as Phase IV.
The Case Management Order held, at the conclusion of the list of issues common to Dow Chemical Sub-Class, “These findings will be binding on all members of the Dow Chemical Subclass.” At the time that the CMO was signed, there was a viable class action. The ruling of this Court at that time was good and lawful. It affected the substantive rights of the women who made up the Dow Chemical subclass and Dow Chemical. It is the opinion of this Court that when the jury returned a verdict in favor of the plaintiffs that the jury verdict was binding on all women of the subclass and on Dow Chemical. It is the opinion of this Court that while the jury verdict in Phase I did not create an obligation owed to the plaintiffs, in and of itself, it certainly decided issues of materiality and culpable conduct that were common among all of the women of the Dow Chemical subclass, and vested those women with certain rights.
On August 18, 1997 the jury returned with a verdict in favor of plaintiffs and against defendant, Dow Chemical. That jury verdict determined that Dow Chemical had engaged in conduct which involved negligent testing, intentional concealment, suppression of information, and misrepresentation of material risk in using silicone in the human body, and that Dow Chemical acted in concert with Dow Corning in connection to wrongful acts of commission and omission. It was not a judgment on the merits.
The jury returned a special verdict in which it determined certain facts. La.Code of Civil Procedure 1812(D) provides “... the Court shall enter a judgment in conformity with the jury’s answers to ... special questions and according to applicable law.” The law recognizes that the jury returns a verdict and that the court enters the judgment even in instances where there is a general verdict accompanied by a[sic] interrogatories.
l7Code of Civil Procedure Article 593.1(B) makes reference to a decision on the merits. While Blacks Law Dictionary Fifth Edition defines the word decision as a popular rather than technical or legal word, and a comprehensive term having no fixed, legal meaning, it does go on to define [djecision on the merits as “A decision ... passing on a controversy with respect to the interpretation thereof which bars subsequent suit on the same cause of action.” As of December 1, 1997 there was no judgment so there was no decision on the merits only a special jury verdict. The verdict had not been made the judgment of the Court.
On December 1, 1997, this court entered an order decertifying the Spitzfa-den class action. It is the opinion of this Court that the decertification of the class was a procedural measure. It was not the intent of this Court to ex post facts disallow the validity of the Phase I verdict.
La.Code of Civil Procedure Article 5051 provides that “The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” La. C.C.P. Art. 593.1 is an article of procedure and cannot be used as a mechanism to defeat or deny a party of a right that it may have. [Arguable the right attached at the signing of the Case Management Order.] It is the opinion of this Court that any affect upon the substantive rights of the parties to this litigation as a result of decertification can only be prospective.
La.Code of Civil Procedure 593.1(B) [p]rovides that at any time after the process of certification “... before decision on the merits, the Court may ... restrict or otherwise redefine ... the issues to be maintained in the class action.” In [decertifying the class, this Court did not dismiss the action. It is the Opinion of this Court that the effect of its December 1,1997 order decertified the Spitzfaden class prospectively, and restricted the issues to be maintained in the class (more particularly the subclass) to those already determined by the trier of fact.
The order of decertification did not dismiss the action. The Court’s order of December 1, 1997 did not have retroactive or ex post facto effect on substantive rights acquired by the parties pursuant to the Phase I jury verdict. Therefore because the action was not dismissed the Court is of the opinion that it has the authority to reduce to judgment the Phase I verdict at this time pursuant to La. C.C.P. 593.1(D) allows [sic] the court to sign a judgment after trial of any issue.
The Court does not view the Phase I jury determination to be a judgment on the merits. It is a finding of fact by the fact finder.
[sIt is the opinion of this Court that the plaintiffs must proceed with their individual causes of action where they need only to prove reliance, causation, and damages, (citation omitted). It does not appear that the concept of fraudulent activity or materiality being proven on a class wide basis and reliance and causation proven on an individual basis is novel to the class action.
While Collateral Estoppel may not be recognized under Louisiana law[,][t]he doctrine of issue preclusion is recognized. The issues of Dow Chemical’s alleged wrongdoing and materiality were decided on August 18, 1997 by the jury and according to the law of the case the jury verdict is binding on all parties to the Dow Chemical Sub-class. The matter of reducing the verdict to judgment at this time is pro forma, or house cleaning.
It would appear to me that the Plaintiffs steering Committee must notify the members of the Dow Chemical subclass of the existence of then." rights and of the decertification to afford them an opportunity to pursue their cases individually.

On January 13, 1998, the trial judge signed a judgment reciting the jury conclusions and ordered, “that the above and foregoing judgment is binding on Dow Chemical Corporation and the woman of the Dow Chemical sub-class.” Thereafter, Dow Chemical sought orders of suspensive appeal of the venue ruling, the denial of the motion to vacate the Phase I verdict, and the judgment making the Phase I verdict binding on all absent former class members. On January 14, 1998, the trial judge denied the first two requests, but granted Dow Chemical’s suspensive appeal as to her judgment, which made the Phase I verdict binding on all absent former class members.

On appeal, Dow Chemical briefed three assignments of error, with subparts, as follows:

1. The trial judge erred in making the jury verdict binding, after decertify-ing the class, on all of the absent former class ^members, or even on the eight individual plaintiffs, in light of the following procedural defects:
(a) The trial of liability and damages was bifurcated without the appellant’s consent, in violation of Article 1562 of the Code of Civil Procedure;
(b) Evidence was admitted before the jury which would not have been admissible in an individual action rather than a class action;
(c) The alleged fault of the other (Corning, Inc.) of the manufacturer was not before the jury because it had been dismissed before trial by a summary judgment that was subsequently reversed after the trial was completed;
(d) Arguments by plaintiffs’ counsel and comments by both plaintiffs’ counsel and the trial judge, alluding to class action status at the time of the trial, were inappropriate for an individual action;
(e) The trial was conducted and interrogatories were posed to the jury under a Case Management Order designed for a class action and not for an individual action;
(f) The decertification ruling should have had its effect at the time of the entry of the judgment and not at the time of the jury verdict; and
(g) The trial court lacked jurisdiction to apply the jury verdict to non-parties who were former members of a decertified class.
2. The trial judge erred in failing to conduct proceedings in which a fair and reasonable deliberation of the issues by the jury could occur. Specifically, the trial judge erred by:
(a) Permitting plaintiffs’ counsel to present a “stealth” case against The Dow Chemical Company by continued blurring of any distinctions between Dow Corning Corporation and The Dow Chemical Company, and by admission of evidence about the conduct of Dow Corning as manufacturer of the breast implants in question, despite her own pre-trial ruling that The Dow Chemical Company was not a manufacturer;
(b) Permitting plaintiffs’ counsel to bring before the jury inadmissible evidence by the use of bad faith questions, by improper use of inadmissible documents and by the |inuse of improper remarks during opening and closing arguments, and then in denying a post-trial motion for a new trial raining these issues;
(c) Using jury instructions which compounded the error in (a) above; and
(d)Reversing her mid-trial granting of a mistrial motion, which followed a long pattern of inappropriate conduct by plaintiffs’ trial counsel and which was preceded by a very unusual secret polling of the jury by the trial judge, and when no proper motion to reverse her ruling was ever filed.
3. The trial judge erred by concluding that the Dow Chemical Company owed a duty to the plaintiffs even i though it never manufactured breast implants; or alternatively, erred in entering a judgment on the jury verdict against the Dow Chemical Company when there was no evidence upon which reasonable jurors could conclude that a duty to the plaintiffs had been breached.

DISCUSSION

Issue One: Whether the trial of liability and damages was properly bifurcated, and whether the trial judge erred when she polyfurcated liability into issues of conduct and causation.

We will first address Dow Chemical’s argument that the trial of liability and damages was bifurcated without its consent, and thus is in violation of La. C.C.P. article 1562. Additionally, Dow Chemical argues that the trial judge was in clear violation of article 1562(A) when she bifurcated the issue of liability by dividing the issues of conduct and causation.

La. C.C.P. article 1562, applicable in ordinary cases, provides that, “with the consent of all parties, separate trials on the issues of liability and damages” may be conducted if all parties consent prior to the trial. However, La. C.C.P. article 593Hj(C)ii (repealed 1997) made class actions an exception to the ordinary rules and granted a class action trial court the ability to bifurcate without consent of all parties. Specifically, La. C.C.P. art. 593.1(C) provides:

C. After determining that the pending action is appropriate for litigation as a class action, the court may, on its own motion or on the motion or recommendation of any party, adopt a plan for the management of the class action litigation, which may include provisions for subdivision of the action or separation of the issues therein raised, to which these rules of procedure shall be applicable as though each were a separate action. The management plan may provide for separate trials of separate issues and, if jury trial has been requested and is otherwise permissible, each separate trial may be heard before the same or another jury as the court may direct in the interest of justice. The management plan may provide for separate trials of the following issues in the order herein set forth:
(1) Liability for all damages.
(2) Determination of any item of damage common to the class and the basis for assessment thereof.
(3) Assessment of common damages on the basis determined in (2) above or on such basis as may be appropriate in the absence of any prior determination of the basis thereof.
(4) Determination and assessment of individual damages not common to the class, either in one trial or in a series of trials involving one or more members of the class.

Thus, La. C.C.P. art. 593.1(C) permits a court, without consent, to bifurcate liability and damages for trial of a class action. Accordingly, we find no merit to Dow Chemical’s argument that its consent was needed to bifurcate the class action into issues of liability and damages.

However, we find that La. C.C.P. art. 593.1(C) does not authorize a court to polyfurcate liability into conduct (fault) and causation. This Court, in Brown v. New Orleans Public Service, Inc., held that La. C.C.P. art. 593.1(C) does not authorize a trial court to polyfurcate a cause of action into its various elements for separate trial of each element. 506 So.2d 621, 624 (La.App. 4 Cir. 4/9/87). Specifically, this Court stated, in pertinent part:

We recognize that, in order to facilitate management of class litigation, Article 593.1 provides for a plan of management which may include separate trials of distinct issues. Nevertheless, even were a class action otherwise appropriate in this case, Article 593.1 would not ease the problems of management which are presented by the individual questions of causation. The Article expressly authorizes trial of the issues of determination and assessment of damages after the issue of liability has been established in a separate trial. Tort liability, however, encompasses both fault and causation, and Article 593.1 does not allow trial on fault alone, separate from the question of causation. We do not believe the issues which may be tried separately under Article 593.1 should be further broken down to accommodate the management problems which would be encountered in litigating this suit as a class action. Fault and causation as elements of liability are too closely interrelated to be tried separately, and sound policy reasons dictate that a defendant should not be subjected to a determination of his fault before the court even considers whether that fault caused the plaintiffs’ damages. (Emphasis Added)
In sum, it is apparent that this litigation, if it were to proceed as a class action, would quickly disintegrate into an unmanageable multitude of small suits with individual issues and evidence, violating the policy of judicial efficiency which the class action is designed to serve.

Brown, 506 So.2d at 624. Thus, this Court in Brown determined that La. C.C.P. art 593.1(C) restricts separation to a single trial on liability, followed by one or more trials on damages. Id. As such, we find that the trial judge was in clear violation of La. C.C.P. art. 593.1 when she polyfurcat-ed liability into the issues of conduct and causation. Nonetheless, we will now address the issue of whether the trial 11 ¿judge erred by making the jury verdict binding on all absent former class members, or even on the eight individual plaintiffs, after decertifying the class.

Issue Two: Whether the verdict of a jury in only one phase of a bifurcated pro-ceediny tried as a class action be made applicable to non-parties who are former class members when the class action is decertified after the verdict, or even to the eight individual plaintiffs who were the former class representatives.

Defendant Dow Chemical argues that the judgment applying the jury verdict in the first phase of four phases of a class action to former class members, rendered after a judgment of decertification, is erroneous and must be reversed on procedural grounds alone, as to the former class members. Moreover, Dow Chemical argues that the trial of the case as a class action makes it unjust and indeed impossible even to make the jury verdict binding as to the eight individual plaintiffs.

Plaintiffs contend that Phase I of the Dow Chemical sub-class was at all times a properly constituted class action and that it remains so now. Specifically, plaintiffs argue that Phase I of the Dow Chemical sub-class was proper when created by the trial court’s Case Management Order of March 13, 1997, that it was a proper class action during the entirety of the trial on Phase I, which resulted in a plaintiff verdict on August 18, 1997, and that it remained a properly constituted class action during and after the trial court prospectively decertified the entirety of the remaining action on December 1, 1997. For the reasons below, we find no merit to plaintiffs’ arguments that Phase I subclass was and is maintained and that the verdict of the fact finder on those issues was proper.

| uFa. C.C.P. art. 593.1(B) (repealed 1997) gives authority to a trial judge to recall a class certification after a trial on the merits, but before a ruling on the merits of the class claims. Specifically, La. C.C.P. art. 593.1(B) provides:

B. In the process of class certification or at any time thereafter before decision on the merits, the court may alter, amend or recall its certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.

In this case, the trial judge recalled the class certification after trial on the merits, after the jury verdict, but before a ruling on the merits of the class claims. The trial court’s Judgment states:

After considering the pleadings, mem-oranda and evidence submitted, this Court rules in favor of the defendants and against the plaintiff and hereby recalls the class action.
IT IS ORDERED, ADJUDGED, AND DECREED that the Motion to Decertify Class Action is hereby granted.

The trial judge gave extensive reasons for finding that this class action must be de-certified. In pertinent part, the trial judge stated:

This Court has found in light of the recent Louisiana Supreme Court decision in Ford v. Murphy Oil USA, Inc., No. 96-C 2913 slip op[., 703 So.2d 542] (La. Sept. 9, 1997) that this class action must be decertified.
The discussion in Ford regarding numerous defendants directly impacts the case at bar. The Ford case stipulates that [sic]that only mass torts “arising from a common cause or disaster” may be appropriate for class certification, depending on the circumstances. Complicating the issue in this instance is the existence of different categories of defendants. Some defendants are manufacturers and some are not. Plaintiffs’ tort claims arise from the alleged individual tracts of defendants and the defendants’ acts are not common to all plaintiffs nor is each defendant’s act common to other defendants.
Turning to, the plaintiffs contention that maintaining the class certification in place while expressly acknowledging each subdivision as a separate class action is an error. This very contention defeats the purpose of a class action. This case is complicated more so by the fact that there are over 40 defendants and individual questions of liability would have to be tried for each defendant or subclass. Each subclass would encompass still farther individual questions of liability with that subclass.... Therefore, the many individual issues of liability will still be duplicated under a subclass condition.
Thus, individual questions continue to increase on both plaintiff and defendant sides, outnumbering the common questions.
Thus, this Court finds that the circumstances to maintain the class action in this instant case does [sic] not exist.
IT IS ORDERED, ADJUDGED, AND DECREED that the Spitzfaden class action is hereby decertified.

After reading the judgment with the incorporated reasons, we find that the trial judge decertified the entire Spitzfa-den class action. Thus, we find no merit to plaintiffs’ argument that part of the case is decertified, and part is not. Accordingly, as of December 1,1997, this class action was decertified.

We next address the issue of whether the trial judge erred by making the jury verdict binding on all absent former class members, or even on the eight individual plaintiffs, after decertifying the class.

La. C.C.P. art. 593.1(A) provides:

A. After commencement of an action by or on behalf of parties alleged to be members of a class, the court, on its own motion, or on the motion of any party or on trial of any exception directed to such issue, shall determine whether the action may be properly maintained as a class action as a prerequisite to any further proceedings therein. If the court finds that the action should be maintained as a class action, it shall certify the action accordingly; otherwise the action shall be dismissed. The court may permit amendment of the pleadings in the action to permit maintenance thereof as an ordinary proceeding on behalf of parties expressly named therein. (Emphasis added)

On application for rehearing in Ford v. Murphy Oil, U.S.A., Inc., 96-2913 (La.10/10/97), 710 So.2d 235, Chief Justice Calogero commented on La. C.C.P. art. 593.1(A):

In their application for rehearing, plaintiffs seek “clarification” of this Court’s dismissal of the class action petition. Specifically, plaintiffs’ inquiry concerns whether, notwithstanding the dismissal of the class action, the individual claims of the named petitioners can proceed as an ordinary action. I agree with the majority that this matter should be remanded to the district court judge for consideration.
Louisiana Code of Civil Procedure article 593.1 expressly provides that “the action shall be dismissed” if the court finds that the action should not be maintained as a class action. However, article 593.1 further provides that “[t]he court may permit amendment of the pleadings in the action to permit maintenance thereof as an ordinary proceeding on behalf of parties expressly named therein.” Thus, even though article 593.1 mandates the dismissal of “the action” where maintenance as a class action is inappropriate for whatever reason, the article contemplates some character of preservation of the individual claims of the named plaintiffs, at least in some cases, even after the dismissal. This presents an unusual circumstance, as generally when an action has been dismissed, there are no surviving pleadings to amend.
I write separately to emphasize that article 593.1 expressly sanctions this unusual circumstance by giving the district court judge the discretion to allow the pleadings to be amended even after dismissal of the action to permit the individual claims of the named plaintiffs to proceed as an ordinary action. Because these amended pleadings will relate back to the originally filed petition, prescription of the individual claims will not be an issue provided that the original petition was timely filed.

Following our Supreme Court’s analysis of La. C.C.P. art. 593.1, we find that the trial judge could not rule on non-named plaintiff class members after decertification without amendment to pleading or a new suit being filed. Accordingly, the trial judge erred when she signed the January 13, 1998 judgment, which recited the jury conclusions and ordered that the judgment be binding on Dow Chemical Corporation and the woman of the Dow Chemical subclass.

17 Although no amendment was necessary for the trial judge to rule on the eight named plaintiffs, we nonetheless find that the status of the case as a class action allowed the admission of evidence that would otherwise have had marginal relevance to the case of the eight named plaintiffs. As stated above, the trial judge was in clear violation of La. C.C.P. art. 593.1 when she polyfurcated liability into the issues of conduct and causation, and we find that judgment on the conduct of Dow Chemical, without the issue of causation to these eight individuals, is highly prejudicial to Dow Chemical. Accordingly, we feel compelled to reverse the judgment making the jury verdict binding on Dow Chemical as to the eight individual plaintiffs and the absent former class members.

We find it unnecessary to rule on other issues raised on appeal by the defendant Dow Chemical, which are rendered moot by our action in reversing the judgment making the jury verdict binding on Dow Chemical as to the eight individual plaintiffs and the absent former class members.

In conclusion, we reverse the judgment of the trial court, which found the jury verdict (in favor of plaintiffs) binding on all absent former class members, and the eight individual plaintiffs, after decertify-ing the class. We remand the case to the trial court for further proceedings as an ordinary action.

REVERSED AND REMANDED.

      . Southern Baptist Hospital was later dismissed from the suit.

      . Dow Chemical applied for writs with respect to the two denials of its request for orders of suspensive appeal, but these applications were denied by this Court on March 12, 1998.

      . Phase II of this case against Dow Chemical never took place, and the jurors were discharged from their duties on November 13, 1998.

      . Although Article 593.1 was repealed as of July 1, 1997, the article remains effective for any class actions filed before that date. The issues formerly set forth in Art. 593.1 are now addressed in La. C.C.P. art. 592.

      . This conclusion is supported by the corresponding concept in La. C.C.P. art. 1562, for ordinary proceedings, which calls for one trial for overall liability and a separate trial for damages. See La. C.C.P. art. 1562(A).

      . La. C.C.P. art. 592A(3)(c), which sets forth the current procedure scheme for class action certification, maintains the old rule that "... before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.”


author: |, SULLIVAN, Judge.

text:
    John B. DINGLER, et ux. v. ZURICH COMMERCIAL INSURANCE COMPANY, et al.
    No. 02-674.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 15, 2003.

      W. Thomas Barrett, III, Attorney at Law, Lake Charles, LA, for Plaintiffs/Appellants, John B. Dingier, Lillie Dingier.
    Elizabeth R. Smyth, John G. Alsobrook, Chopin, Wagar, Cole, Richard, Ruboul & Kutcher, Mandeville, LA, for Defendants/Appellants, Zurich American Insurance Company, Acme Truck Line, Inc.
    Susan A. Daigle, Jason M. Welborn, Daigle, Scofield & Rivera, Lafayette, LA, for Defendant/Appellee, Assurance Company of America.
    James T. McManus, M. Katherine Paine, McManus & Paine, Lafayette, LA, for Defendant, State Farm Mutual Automobile Insurance Company.
    Preston D. Cloyd, Cloyd, Wimberly & Villemarette, Lafayette, LA, for Defendants, State Farm Mutual Automobile Insurance Company, Sidney J. Barras.
    Daniel A. Rees, Rees & Rees, Breaux Bridge, LA, for Defendants, John A. Bar-ras d/b/a Cajun Wood Products.
    Court composed of NED E. DOUCET, JR., MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   |, SULLIVAN, Judge.

John and Lillie Dingier, Acme Truck Lines, Inc. (Acme), and its workers’ compensation insurer, Zurich American Insurance Company (Zurich), appeal the grant of summary judgment in favor of Assurance Company of America (Assurance). For the following reasons, we reverse.

Facts

During the early morning hours of October 4, 1999, John Dingier was making a delivery for Acme, his employer, to Knight Oil Tools (Knight) in Lafayette, Louisiana. Mr. Dingier was driving on Industrial Parkway, attempting to locate his destination, when he noticed an occupied vehicle in the parking lot of Cajun Wood Products. He parked his truck, approached the parked vehicle on foot, and asked the occupant, Sidney Barras, for directions to Knight. Mr. Dingier could not understand Mr. Barras, whose speech had been affected by a stroke. Returning to his truck, Mr. Dingier walked in front of Mr. Barras’ vehicle. As he did so, Mr. Barras’ vehicle moved forward striking him and throwing him onto the hood of Mr. Barras’ vehicle. Mr. Barras’ vehicle moved again, and Mr. Dingier rolled from the hood of the car and was struck again. Mr. Barras was employed by John Barras d/b/a Cajun Wood Products. He routinely arrived at work in the early hours of the morning, two o’clock a.m. or so, parked his car in the parking lot, and waited for Cajun Wood Products to open to its employees.

Mr. Dingier and his wife, Lillie, sued Sidney Barras, John Barras d/b/a Cajun Wood Products, and their respective insurers, for damages they suffered as a result of this incident. Acme and Zurich intervened seeking reimbursement of all workers’ compensation benefits paid by them to or on behalf of Mr. Dingier.

| ¡.John Barras d/b/a Cajun Wood Products and his insurer, Assurance, filed a joint motion for summary judgment on the issue of whether Sidney Barras was in the course and scope of his employment with Cajun Wood Products at the time of the accident. Assurance also filed a separate motion for summary judgment, asserting that the commercial general liability policy it issued in favor of John Barras d/b/a Cajun Wood Products contained an “automobile use exclusion” which excluded the accident sued on herein from coverage.

After a hearing, the trial court denied summary judgment on the course and scope issue and took the motion for summary judgment on the issue of the automobile use exclusion under advisement. On August 13, 2001, the trial court issued written reasons, granting summary judgment in favor of Assurance under its automobile use exclusion. The Dinglers, Acme, and Zurich (Appellants) appeal the grant of summary judgment in favor of Assurance.

Standard of Review

Appellate courts review summary judgments de novo, under the same criteria which govern a district court’s consideration of the appropriateness of summary judgment. See Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318 (La.1993). The appellate court must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment may be granted only if the mover has proved that no genuine issues of material fact exist and that he is entitled to judgment as a matter of law. La.Code Civ.P. art. 966.

IsAppellants argue that summary judgment in favor of Assurance is precluded on the facts presented herein because: 1) independent acts of negligence committed by John Barras were not within the ambit of the automobile use exclusion; 2) there is an ambiguity within the automobile use exclusion; and 3) an issue of material fact exists as to whether Sidney Barras was an “insured” within the meaning of the automobile use exclusion.

Independent Negligence of John Barras

Assurance’s motion for summary judgment is based on the automobile use exclusion contained in its commercial general liability policy issued to John Barras. The exclusion applies to any:

“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading”.

(Emphasis added.)

Assurance argues that this exclusion is applicable because Mr. Dingler’s injuries arose out of Sidney Barras’ use of an automobile. It cites Picou v. Ferrara, 412 So.2d 1297 (La.1982) and Oaks v. Dupuy, 26,729 (La.App. 2 Cir. 4/5/95); 653 So.2d 165, writ denied, 95-1145 (La.6/16/95); 655 So.2d 335, in support of its position. In Picou, 412 So.2d at 1300, the supreme court rejected the plaintiffs argument that the employer’s negligence in hiring an incompetent driver and allowing him to make deliveries was independent of the employee’s negligence in causing the automobile accident sued upon, finding the use of an automobile to be “a common and essential element in each theory of liability.”

In Oaks, 653 So.2d at 167, the second circuit, finding “that no personal injuries could have resulted to these plaintiffs, absent actual use of the vehicle,” held that the | ¿insured’s negligent entrustment of his vehicle to his son, who was known to drive recklessly and while under the influence of alcohol, was not independent of his son’s use of the vehicle.

Citing LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978); Frazier v. State Farm Mutual Automobile Insurance Co., 347 So.2d 1275 (La.App. 1 Cir.1977), writ denied, 351 So.2d 165 (La.1977); Johns v. State Farm Fire & Casualty Co., 349 So.2d 481 (La.App. 3 Cir.1977), Appellants assert that John Barras was negligent with regard to the accident and that his negligence was independent of Sidney Barras’ use of an automobile; therefore, the automobile use exclusion does not apply. In the cases cited by Appellants, the courts recognized that if a plaintiff asserts two theories of liability, one which falls within the automobile use exclusion and one which does not, the exclusion defeats only the claim premised upon the use of the automobile.

Acme and Zurich alleged in their petition of intervention that John Barras was “independently negligent for allowing Sidney Barras to continue his employment with knowledge that he possessed significant physical impairment which created danger to the traveling public while operating a motor vehicle.” Thereafter, the Dinglers amended their petition, alleging:

Defendant, John A. Barras, was independently negligent for hiring Sidney J. Barras and permitting him to continue his employment with Cajun Wood Products and/or Cajun Woodworkers with the knowledge that Sidney J. Barras possessed a significant impairment which created a danger to the public, which negligence and impairment was a cause in fact of the accident in question and the injury sustained by [plaintiff], John B. Dingier.

In LeJeune, 365 So.2d 471, a sheriffs deputy failed to secure an intersection for the passage of a funeral cortege and an accident occurred. The supreme court held that the deputy’s negligence arose out of his failure to follow department orders, not 1 Kout of the use of his automobile; therefore, the automobile use exclusion did not apply.

In Johns, 349 So.2d 481, the plaintiff sued for injuries he sustained while assisting the defendant with the removal of a dead limb from a tree on the defendant’s property. A safety rope, attached to the plaintiffs waist and to the defendant’s truck, was kept taut by the defendant’s son moving the truck forward as instructed by his father. The plaintiff was injured when the rope broke and he fell to the ground. He sued, alleging negligence by the son in operating the truck and by the defendant for failing to observe, supervise, instruct, and exercise due care with regard to the tree climbing operation. This court found that the plaintiff had alleged negligence on the part of the defendant which was independent of the use of the truck and reversed summary judgment in favor of the defendant’s homeowners’ insurer.

In Frazier, 347 So.2d 1275, the plaintiff sued the defendants, their automobile insurer, and their homeowners’ insurer for injuries her daughter suffered when she was struck by a car driven by the defendants’ daughter. The accident occurred at the defendant’s home while they were babysitting the child. The first circuit reversed the trial court’s grant of summary judgment because the plaintiffs claims set forth two independent theories of the defendants’ liability: 1) their daughter’s negligent operation of the car and 2) their own negligence in failing to properly supervise the child while she was in their custody.

We note that neither Picou nor Oaks concerned accidents which occurred on an insured’s premises as in Johns and Frazier. Furthermore, in Picou, 412 So.2d at 1300, the supreme court distinguished the facts presented therein from those presented in Frazier, stating: “Use of the automobile was not essential to such a | ¿theory of liability for injury to a child on the premises. The automobile was an essential fact of the accident, but only incidental to the theory of liability under the homeowners policy.” Id. (Emphasis added.)

Appellants contend that John Barras knew Sidney Barras had a condition or impairment “which created a danger to the public,” but allowed him to continue driving to work, arriving before other employees, and parking his car on the Cajun Wood Products parking lot without supervision, and that this constituted a premises hazard.

John Barras owns a portion and leases a portion of the property where Cajun Wood Products is situated. An owner and occupier of land has a duty to discover any unreasonably dangerous conditions existing on his premises and to either correct those conditions or to warn of their existence. Silliker v. St. Landry Parish Police Jury, 520 So.2d 880 (La.App. 3 Cir.1987). Property owners are not insurers of the safety of visitors, but they have a duty to keep their premises in a safe condition for use in a manner consistent with the purposes for which they are intended. David v. Reon, 520 So.2d 820 (La.App. 3 Cir.1987), writ denied, 522 So.2d 564 (La.1988). Appellants have alleged two theories of liability regarding John Barras: 1) an employer’s liability for the negligent acts of his employee, and 2) an owner/occupier’s liability for his failure to keep his premises in a safe condition.

The distinction argued by Appellants is best understood when it is considered in conjunction with their third assignment of error, i.e., the trial court should not have granted summary judgment without a determination of whether Sidney Barras was in the course and scope of his employment at the time of the accident.

|7The automobile use exclusion in Assurance’s policy is applicable if two facts are established: 1) Mr. Dingler’s injuries arose from the use of an automobile and 2) the automobile was “owned or operated by ... any insured.” Section II of Assurance’s policy defines “an insured” to include “[y]our employees ... but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.” If Sidney Barras was not within the scope of his employment at the time of the accident, he was not an insured under the policy, and the automobile use exclusion does not apply. However, John Barras may be liable to the Dinglers for his failure to maintain his premises in a safe manner.

For these reasons, we find that there are two issues of material fact which preclude summary judgment herein: 1) whether Sidney Barras was in the course and scope of his employment at the time of the accident and 2) whether John Barras maintained the premises of Cajun Wood Products in a safe condition.

The judgment of the trial court is reversed. All costs of this appeal are assessed to Assurance.

REVERSED.