author: 2THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Terrence J. JONES.
    No. 02-KA-908.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   2THOMAS F. DALEY, Judge.

Defendant, Terrence J. Jones, appeals his conviction by a jury of second degree murder in violation of LSA-R.S. 14:30.1. On appeal, he makes the following Assignments of Error:

1. It was reversible error to permit the State to introduce to the jury the multiple out-of-court statements by James Artberry, the sole eye-witness to the shooting.
2. The trial court improperly restricted appellant’s cross-examination of a key State witness.

Following review of the law and evidence, we affirm the defendant’s conviction and sentence. Among defendant’s numerous pre-trial motions was a Motion in Li-mine, in which he moved the court to disallow the admission, at trial, of the motion hearing testimony of a deceased witness, James Artberry. The court heard and denied the motion on June 29, 2000, ruling that the testimony was admissible under the hearsay exception for unavailable witnesses. Defendant applied for writs to this Court from the trial court’s ruling. On July 14, 2000, this Court denied writs. State v. Jones, Writ No. 00-K-1286. Defendant subsequently [ 3applied for writs to the Louisiana Supreme Court. The Supreme Court denied writs. State v. Jones, 00-2155 (La.7/18/00), 766 So.2d 1261.

The State amended the Bill of Indictment on July 17, 2000, reducing the charge to second-degree murder, LSA-R.S. 14:30.1. On that day, defendant was arraigned as to the amended charge, and pled not guilty. Trial began before a twelve-member jury. On July 19, 2000, the second day of trial, defendant moved for a mistrial, arguing the State prejudiced his case by withholding transcriptions of statements made to the police by James Artberry. Defendant complained that this failure to comply with discovery interfered with his ability to fully cross-examine James Artberry at the hearing on the Motion to Suppress Identification, and with the trial court’s ability to make a determination regarding the reliability of the witness’s identification. After hearing arguments on the matter, the trial court granted a mistrial, and reversed its prior ruling allowing the admission of James Artberry’s motion hearing testimony finding that the recorded statements made to the police contained Brady material and since the defendant did not have the benefit of the recorded statements during the testimony of Artberry at the suppression hearing the defendant was denied the ability to effectively cross examine Mr. Art-berry.

The State applied for writs to this Court from the trial court’s ruling. State v. Jones, Writ No. 00-K-1432. This Court denied writs on September 13, 2000. The State then applied for writs to the Supreme Court. State v. Jones, Writ No. 00-KK-2837. The Supreme Court granted writs on February 9, 2001. It issued a per curiam on June 29, 2000, reversing this Court’s ruling, and holding that the State’s failure to provide the statements prior to the motion hearing did not deprive defendant of his ability to fully cross-examine Mr. Artberry. The Supreme Court Lfurther found that Artberry’s motion hearing testimony was admissible at trial. State v. Jones, 00-2837 (La.6/29/01), 791 So.2d 622.

On August 1, 2001, defendant filed a Motion to Quash Indictment. The motion was heard and denied on August 30, 2001. Although defendant orally noticed his intent to apply for writs from the trial court’s ruling, the record does not show that he actually made a Writ Application. A second trial was held on November 13 and 14, 2001. At the conclusion of trial, the jury returned a unanimous verdict of guilty as charged.

On November 29, 2001, the court sentenced defendant to a mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant made a timely oral Motion for Appeal. The trial court granted the motion.

FACTS

Deputy Rene Pinac of the Jefferson Parish Sheriffs Office testified that he was on patrol at about 1:00 a.m. on July 28, 1997, when he received a call regarding a shooting at 7423 Fourth Street in Marrero. The victim was reported to be lying inside of a car. When he arrived at the scene, Deputy Pinac saw a blue Oldsmobile automobile in the parking lot of the Westbank Boat Supply Company, a business adjacent to the residence. The victim, Marty Martin (Martin), was lying motionless inside the car, his left leg hanging out of the open driver’s side door. Deputy Pinac testified the victim appeared lifeless. Deputy Pinac called EMS. When EMS technicians arrived, they examined the victim, and found he had no vital signs.

Dr. Fraser Mackenzie was the forensic pathologist who performed the autopsy on the victim’s body. He determined the cause of death was a gunshot wound that perforated the heart, lungs, and aorta. In his opinion, the victim would |Bhave bled to death within three to five minutes. The doctor testified that toxicology screenings revealed the victim had cocaine, amphetamines, and alcohol in his system. Sandra Barrette, Martin’s mother, testified that her son had struggled with a cocaine addiction for several years.

James Artberry (Artberry), who lived at 7423 Fourth Street, approached Deputy Pinac and said he had witnessed the shooting. He gave the deputy a description of the perpetrator and his car. Deputy Pinac broadcast the information over the police radio. He then placed Artberry in the back of his police vehicle. Artberry was transported to the criminal investigations bureau of the sheriffs office, where homicide Detective Mike Tucker and Lieutenant Ralph Sacks questioned him.

Detective Tucker testified that he obtained a total of four statements from Art-berry. Three of them were tape-recorded, and were admitted at trial. Those recordings were transcribed. The tapes were played for the jury at trial. The first interview was conducted at 3:18 a.m. on July 28, 1997. Artberry stated he had witnessed a shooting that night. He said he knew the victim casually for more than two years, and that he knew the man was a crack cocaine user.

Artberry in his statement said he encountered Martin on the night of July 27, 1997 at The Happy Hour Lounge, located at Fourth and Jung Streets. Artberry entered the bar at about 10:15 p.m. Martin arrived at about 10:35 p.m., and shortly thereafter, he asked Artberry to help him find a prostitute. Artberry agreed, and went to Martin’s ear with him. The car was a light blue Oldsmobile or Buick. They were unsuccessful in locating a prostitute, and Martin drove Artberry back to the Happy Hour. Artberry walked home from there.

Artberry in his statement said he saw two unknown African-American men in a blue Pontiac Grand Prix park in front of his house. The car had tinted windows, and a yellow sticker on the back window, indicating a lack of insurance |r,coverage. Artberry went inside his house, and watched the men through a window. The victim drove up the street at a high rate of speed, and parked in front of the house. Artberry opened his door, and saw that the victim was standing next to the Grand Prix, talking to its occupants through the open passenger side window. The driver of the Grand Prix exited the vehicle. Martin walked back to his own car, opened the door and reached inside. He then stood up and put his hand into his pocket as if he were searching for something. Artberry believed the men were engaging in a drug deal.

The driver of the Grand Prix fired two shots, striking Martin. The shooter was two to three feet away from the victim. The victim got into his car and lay down. The shooter fled the scene in his own car. Artberry said his brother came outside after the shots were fired, and Artberry instructed him to call police. Artberry told Tucker he did not get a good look at the shooter’s face due to poor lighting in the area, and that he did not recognize the passenger in the shooter’s car.

Artberry gave a second recorded statement at the Criminal Investigations Bureau at 4:08 a.m. on July 28,1997. Artber-ry confessed that he had failed to disclose some pertinent information during the first interview because he was frightened of recrimination by the perpetrator. He had actually been involved as an intermediary in a drug deal gone wrong. He told the officers that the victim stopped him and said he was looking for some dope. Art-berry thought he knew where the victim could purchase drugs, and he took him to Jung Street, near Fourth Street. They met with a woman whose name Artberry did not know. Artberry told the woman what Martin wanted. She in turn flagged down the blue Grand Prix. She told the car’s occupants that Martin wanted drugs, and Martin followed the men in his car. Martin and the two African-American men met outside of Artberry’s house.

[7Artberry in his statement stated that he saw the victim approach the passenger window of the Grand Prix. The passenger gave Martin a rock of crack cocaine, and Martin gave him money. Artberry heard the passenger say that Martin had only given him one dollar, and that Martin owed him twenty dollars. Martin searched his pockets, then went to his car and rummaged inside. The passenger told the driver to take his f — ing head off. The driver approached Martin with a gun. The driver told Artberry he faulted him for the deal’s unsatisfactory outcome, and then he shot Martin twice. Martin turned and sat in his car. Artberry, fearing he would also be shot, went into his house.

During the second interview, Artberry identified the shooter as an African-American male name Terrence. He told the officers that Terrence lived on Poe Street in Westwego. Artberry said he had known Terrence for a couple of years, and that he was certain he was the perpetrator.

Based on the information he gathered, Detective Tucker composed a photographic lineup. He presented the lineup to Art-berry, who was unable to identify any of the subjects. Detective Tucker then compiled a second photographic lineup. He presented the lineup to Artberry, and Art-berry identified photograph number four, Terrence Jones, as the man who shot Marty Martin.

After Artberry’s identification of defendant from the second lineup, Detectives Tucker and Sacks interviewed Artberry a third time. The interview took place at Artberry’s home, 7409 Fourth Street, on July 29, 1997, at 9:03 p.m. Artberry again stated that he saw Terrence fire shots at Martin. He said he witnessed the incident from a distance of 20 to 25 feet. He said he knew Terrence as a drug dealer. He again stated that Terrence fired two shots at the victim. Terrence then ran to his car, turned to point at Artberry in a threatening manner, and fled the scene.

1RJames Artberry was deceased at the time of trial. The trial judge admitted the sworn testimony Artberry gave at an April 9, 1998 motion hearing under the “unavailable witness” exception to the hearsay rule. Artberry’s prior testimony revealed that he witnessed a homicide next to his home at 1:17 a.m. on July 28, 1997. He further testified that he was able to identify the perpetrator in a photographic lineup, and that the perpetrator’s name was Terrence. Artberry identified defendant in court as the same person he identified in the photographic lineup. He said he knew defendant for four or five years prior to the murder.

Gelandra Brue testified at trial that, during 1997, she lived on Jung Street in Marrero, about two blocks from Fourth Street. At one time, she worked as a prostitute. She also testified that she sometimes gives away drugs, but does not sell them. She sometimes gave drugs to James Artberry.

During the night and early morning of July 27-28, 1997, Brue was at her home. A white man came to her house and said he wanted to buy a “twenty,” a twenty-dollar piece of crack cocaine. Brue did not know the man, although she had seen him earlier that evening. She told him she was not selling drugs, and he left. Ms. Brue surmised that someone had told the man she knew where to get crack. She did not want to deal with the man, however, as she suspected he was an undercover police officer. Some time between 1:00 and 2:00 a.m., a man whom she knew as James arrived at her house accompanied by the white man. James asked whether she knew where to get a “twenty.” She told him, “around the corner.” Ms. Brue walked around the corner, and James and his companion followed in a car driven by the white man. She went to a house a block away to find an individual whom she knew would have narcotics. This person was not at home, so she returned to her house. Defendant, whom Ms. Brue had known for a year, arrived in a blue Grand Prix. Another man was in the car with defendant.

|9Ms. Brue stood in her doorway, and defendant and James talked for 10 minutes. The men then left her house. The white man drove away in his car, followed by defendant and his companion. They headed toward Fourth Street, in the direction of James’ house.

On the night of July 29, 1997, Detective Tucker showed Ms. Brue the two photographic lineups. She was unable to identify anyone from the first lineup, but identified defendant from the second lineup as one of the men she had seen that night. Upon completing the identification procedure, Detective Tucker interviewed Ms. Brue. The interview was tape-recorded and played at trial. She told Detective Tucker she knew the man in the photograph as Terrence, a drug dealer who lived in her neighborhood. Terrence sold drugs in her driveway on a daily basis. She told the detective that Terrence had been at her house the night before, in his blue Grand Prix. Ms. Brue described how James and his white companion had come to her house in search of crack cocaine. She told the detective that when Terrence arrived at her house, James and his companion left with him. She had not seen Terrence since then.

Mary Gums testified that, at the time of the murder, defendant was living with her on Poe Street. She heard that a man was killed on Fourth Street, just two or three blocks away from her home. She later learned that defendant was wanted for the murder. Police searched her house pursuant to a warrant. Defendant telephoned her and asked her to give his lawyer’s telephone number to a “witness” who lived next door to the murder scene. Defendant wanted this witness to call the lawyer. Ms. Gums complied with defendant’s request. Ms. Gums pled guilty to accessory after the fact to second-degree murder.

Defendant gave a recorded statement to police at the time of his arrest on October 26, 1997. The tape recording was played for the jury. Defendant told Detective Tucker that, on July 28, 1997, he was in Amite, Louisiana, visiting |1(1relatives. He returned home between 5:00 and 6:00 p.m. on July 28,1997. He left his car, a Pontiac Grand Prix, at home, because it was not running well. He told the detective that the car had tinted windows and a yellow insurance citation sticker. When asked where he had been living until the time of his arrest, he responded, “No permanent place.”

ASSIGNMENT OF ERROR NUMBER ONE

Appellant alleges that it was reversible error to permit the State to introduce to the jury the multiple out-of-court statements by James Artberry, the sole eyewitness to the shooting, made during police interrogation, as they constituted inadmissible hearsay.

James Artberry, the only eyewitness to Marty Martin’s murder, died prior to defendant’s first trial. In response to a Motion in Limine filed by defendant’s counsel, the trial court ruled that Artberry’s testimony at a pre-trial suppression hearing would be admissible at trial under the hearsay exception for prior recorded testimony of an unavailable declarant. LSA-C.E. art. 804 B(l). Defendant unsuccessfully sought review of the trial court’s ruling on the Motion in Limine in this Court, and in the Louisiana Supreme Court.

At the first trial, during redirect examination of Deputy Michael Tucker, the State showed defense counsel two statements Artberry made to police on the morning of the victim’s death. Defense counsel moved for a mistrial, on grounds that the State had not disclosed either statement before the hearing on defendant’s Motion to Suppress Artberry’s identification. The trial court conducted a hearing out of the jury’s presence, and determined that the State had not, in fact, disclosed the statements before the suppression hearing, despite defendant’s discovery request. The court reversed its earlier ruling on the admissibility of Art-berry’s prior sworn testimony on grounds that the State’s withholding of the statements In had deprived the court, and would deprive the jury, of the opportunity to determine the reliability of Artberry’s identification in light of his prior conflicting police statements. In his reasons for granting the mistrial, the court further noted that the jurors had learned of Art-berry’s identification in the State’s opening remarks.

The State sought review of the trial court’s ruling. This Court upheld the ruling on grounds that “the defense did not have an opportunity to fully and effectively cross-examine the now unavailable witness, a necessary condition for admissibility of the former testimony.” State v. Jones, Writ No. 00-1432. The Louisiana Supreme Court reversed this Court’s ruling, and remanded the case to the trial court. State v. Jones, 00-2837 (La.6/29/01), 791 So.2d 622. The Supreme Court reasoned that the State did not necessarily breach any statutory or constitutional duty owed to the defense to disclose the witness’s statements well in advance of trial. The Supreme Court also found that, notwithstanding the missed opportunity to confront Artberry directly in court regarding the police statements, pursuant to LSA-C.E. art. 806, the defense would have the opportunity to place the prior statements before the jury to challenge Artberry’s credibility and to argue what those statements might reveal about the accuracy of Artberry’s identification. State v. Jones, 00-2837 at p. 12, 791 So.2d at 628.

At defendant’s second trial, Artberry’s motion hearing testimony taken in court under oath was admitted without objection. However, when the State attempted to question Detective Tucker regarding Artberry’s recorded police statements, defendant objected on grounds that the statements constituted inadmissible hearsay. The State responded that the statements were not hearsay, as they were not being introduced for the truth of the matter asserted, but only to present a complete picture of how the officers conducted their investigation. The h ¿trial court ruled that it would “allow it for purposes of him relating as to how he conducted his investigation.” Defense counsel moved for a mistrial, and the court denied the motion.

The State introduced the recordings and corresponding transcripts of Artberry’s statements during Detective Tucker’s testimony. Defense counsel again objected on grounds of hearsay, arguing that the admission of the tapes would violate defendant’s Sixth Amendment right of confrontation. The prosecutor argued that the Louisiana Supreme Court, in its per cu-riam, had ruled that the tapes were admissible. He also pointed out that defense counsel had raised the issue of Artberry’s truthfulness in his opening statement, thereby opening the door to admission of the tapes. Last, the prosecutor argued that the tapes were admissible under LSA-C.E. art. 801 D(l)(b), which provides:

D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by a witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(b) Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

Defense counsel argued that LSA-C.E. art. 801 D(l)(b) did not apply under these circumstances, although he admitted to having called Artberry’s credibility into question in his opening statement. The trial court overruled defense counsel’s objections, without giving reasons. The tapes and transcripts of Artberry’s state-merits were subsequently admitted into evidence in the State’s case.

Defendant argues that the State did not offer any valid basis for the admission of Artberry’s statements, and that they should have been excluded under the hearsay rule. Hearsay is defined as “a statement, other than one made by the | ^declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” LSA-C.E. art. 801 C. Hearsay evidence is not admissible except as otherwise provided by the Code of Evidence or other legislation. LSA-C.E. art. 802; State v. Cowart, 01-1178, p. 19 (La.App. 5 Cir. 3/26/02), 815 So.2d 275, 288.

The State’s argument below, that Art-berry’s statements were admissible to explain Detective Tucker’s actions, lacks merit. In State v. Dyer, 00-1866, p. 14 (La.App. 5 Cir. 4/25/01), 794 So.2d 1, 12, this Court stated, “A police officer, in explaining his own actions, may refer to statements made to him by other persons involved in the case.” Although the investigative officer was permitted to refer to a statement made by a co-defendant in Dyer the statement in its entirety was not admissible.

In State v. Broadway, 96-2659, pp. 8-9 (La.10/19/99), 753 So.2d 801, 809, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000), the Louisiana Supreme Court discussed the limitations on the admission of such testimony:

Information about the course of a police investigation is not relevant to any essential elements of the charged crime, but such information may be useful to the prosecutor in “drawing the full picture” for the jury. However, the fact that an officer acted on information obtained during the investigation may not be used as an indirect method of bringing before the jury the substance of the out-of-court assertions of the defendant’s guilt that would otherwise be barred by the hearsay rule. State v. Wille, 559 So.2d 1321, 1331 (La.1990); State v. Hearold, 603 So.2d 731, 737 (La.1992). As this Court emphasized in Hearold, 603 So.2d at 737.
Absent some unique circumstances in which the explanation of purpose is probative evidence of a contested fact, such hearsay evidence should not be admitted under an “explanation” exception. The probative value of the mere fact that an out-of-court declaration was made is generally outweighed greatly by the likelihood that the jury will consider the statement for the truth of the matter asserted. ■

See also, State v. Wille, 559 So.2d 1321, 1331 (La.1990), in which the Supreme Court commented:

114Admission of information received by a police officer in the investigation of a crime, on the basis that such information explains the officer’s presence and conduct and therefore does not constitute hearsay evidence, is an area of widespread abuse. McCormick on Evidence § 249 (E. Cleary 3d ed.1984). Such information frequently has an impermissible hearsay aspect as well as a permissible nonhearsay aspect, and the court in determining admissibility should balance the need of the evidence for the proper purpose against the danger of improper use of the evidence by the jury. Id. The fact that an officer acted on information received in an out-of-court assertion may be relevant to explain his conduct, but this fact should not become a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule. G. Pugh, Louisiana Evidence Law 429-431 (1974).

It appears the State primarily used the recorded statements to bolster its case against defendant. Artberry’s motion hearing testimony primarily concerned identification procedures, and did not contain a great many details regarding the events leading up to the murder. Artber-ry’s second statement gave a more detailed description of the murder, and specifically named defendant as the perpetrator.

The prosecutor argued below that the Supreme Court, in its per curiam, held that the State might use Artberry’s statements as evidence at trial. A reading of the Supreme Court’s opinion shows that such is not the case. The Supreme Court addressed the admissibility of Artberry’s motion hearing testimony, and whether defendant’s confrontation rights were violated. The court did suggest that defendant might introduce the statements “to acquaint jurors with all of the circumstances surrounding the witness’s identification of respondent and thereby allow them to reach a reliable determination as to the accuracy of the identification.” See, State v. Jones, 00-2837 at p. 12, 791 So.2d at 628. However, there is nothing in the opinion that can be reasonably interpreted as sanctioning the use of the recorded statements by the State as direct evidence.

The admission of the recorded statements at trial is, however, supported by LSA-C.E. art. 801(D)(1)(b). The statements could be offered as consistent 1^statements intended to “rebut an express or implied charge against [Artberry] of recent fabrication or improper influence or motive.”

Pugh, Force, Rault & Triche, Handbook on Louisiana Evidence Law (2000) 485-486 interprets the LSA-C.E. art. 801(D)(1)(b) as follows:

For a statement to qualify as an exemption from the hearsay rule under Article 801(D)(1)(b), it is necessary for the witness’s statement to have been attacked as a recent fabrication or claimed to have been prompted by an improper influence or motive. The Sub-paragraph speaks of response to an express or implied “charge’1’ rather than to the introduction of “evidence.” State v. Domino, 708 So.2d 1143 (La.App. 1 Cir. 1998) seems correct, therefore, in concluding that the required charge may come by way of opposing counsel’s voir dire and opening statement suggestions that the witness-declarants may be biased or may have colluded against his client. The Article specifies that the testimony is admissible for purposes of rebuttal. The mere fact of a prior inconsistent statement is insufficient to ground the admissibility of the antecedent consistent statement under this provision; there must have been an express or implied suggestion that the witness changed his story because of some purported motive to falsify.

Defense counsel throughout the trial attacked Mr. Artberry’s credibility, alleges that he made false statements to the police, and that Mr. Artberry was in fact the perpetrator of the murder. Beginning in opening arguments defense counsel makes reference to Mr. Artberry’s first statement in which Mr. Artberry claims he didn’t know who committed the murder. Defense counsel continues in his opening statement to say that sometimes later while Mr. Artberry is still in police custody and a possible suspect, Mr. Artberry’s story got spun into identifying the defendant, Terrence Jones. Defense counsel continues to attack Mr. Artberry’s identification of the defendant as the perpetrator throughout the trial by suggesting that the shot that killed the victim could have come from inside Mr. Artberry’s fence. Defense counsel suggested that Ms. Brue was a principal to murder and that Mr. Artberry was the killer. During the trial defense counsel repeatedly indicated he wished to impeach Mr. James Artberry’s credibility. Defense counsel later argues that the testimony of the investigating officers corroborated his opening statement in which he indicated that Artberry lied to the | ^police. The attack on Artberry’s motive for identifying defendant allowed the State to use Artberry’s prior recorded statements as a rehabilitative measure.

In State v. Easter, 32,940 (La.App. 2 Cir. 4/07/00), 756 So.2d 703, writs denied, 00-1321 (La.2/9/01), 785 So.2d 28, 00-2529 (La.6/29/01), 794 So.2d 823, the court found that, under LSA-C.E. art. 801 D(l)(b), a witness’s prior police statement was not inadmissible hearsay. In that case, the defense counsel cross-examined the witness concerning a police statement, alleging that the witness’s trial testimony differed from that statement. The State was later allowed to call the officer who took the witness’s statement, and elicit testimony that showed the substance of the police statement was largely consistent with the witness’s trial testimony.

See also, State v. Ball, 32,498 (La.App. 2 Cir. 12/15/99), 748 So.2d 1249. The court in that case found that, under LSA-C.E. art. 801 D(l)(b), police officers’ testimony repeating witnesses’ recorded statements was not hearsay. The defense, in cross-examining the witnesses, implied they had fabricated information, so the State was allowed to buttress their testimony.

Based on the foregoing, the trial court did not err in allowing the State to admit James Artberry’s recorded statements made to the police.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant complains that the trial court violated his Sixth Amendment right to confront and cross-examine witnesses by barring him from cross-examining State witness, Mary Gums, regarding any deal she might have struck with the State. A defendant’s right to demonstrate facts and circumstance, which might influence a witness’s perceptions or color his testimony (thereby lessening the weight the fact-finder might accord the testimony), is an important function of the right to confront and cross-examine embodied in the Sixth Amendment to the United States Constitution, and La. Const. Art. I, § 16. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Bowie, 00-3344, p. 10 (La.4/30/02), 813 So.2d 377, 385, cert. denied, — U.S. —, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002). See also, LSA-C.E. art. 607 C, D. The right to cross-examine includes the right to question the witness concerning any bias or self-interest attached to the witness’s testimony. However, the right to confrontation is not so unlimited as to require that a defendant be allowed, on cross-examination of a State witness, to make any and all inquiries of whatever character. The inquiry must be relevant. State v. Howard, 01-5, p. 9 (La.App. 5 Cir. 4/24/01), 786 So.2d 174, 180-181, writ denied, 01-1467 (La.4/26/02), 816 So.2d 846.

The possibility that the State may have some “leverage over a witness due to that witness’s pending criminal charges is recognized as a valid area of cross-examination.” State v. Rankin, 465 So.2d 679, 681 (La.1985). A witness’s hope or knowledge that he will receive leniency from the State in exchange for his testimony is highly relevant to establish bias or interest. State v. Bowie, supra. A witness’s bias or interest may arise from arrests, pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the State regarding the conduct. State v. Vale, 95-1230 (La.1/26/96), 666 So.2d 1070, 1072; State v. Schexnayder, 96-98 (La.App. 5 Cir. 11/26/96), 685 So.2d 357, writs denied, 97-0067 (La.5/16/97), 693 So.2d 796, cert. denied, 522 U.S. 839, 118 S.Ct. 115, 139 L.Ed.2d 67 (1997). If the State entered into a deal with a witness, anjl if the revelation would have lessened the witness’s credibility, thereby influencing the jury’s judgment, the defendant is entitled to reversal and a new trial. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

Ms. Gums, defendant’s former girlfriend, testified that she acted as a go-between for defendant and a “witness” (presumably, James Artberry). On direct | ^examination, she was questioned as follows regarding the consequences of her involvement with defendant:

Q. [prosecutor] Let me ask you this, Ms. Gums. Have you ever been convicted of any crimes?
A. Yes, sir.
Q. What have you been convicted of?
A. Accessory After the Fact.
Q. To Second Degree Murder?
A. Yes, sir.
Q. That stems out of this case.
A. Out of this case.
Q. You pled guilty in Jefferson Parish?
A. Yes, sir.
Q. What were you sentenced to?
A. Two years probation.
Q. Okay. Why did you plead guilty?
A. Because of this crime.
Q. The question I have for you is that; you were able to work out a probation? Did you get a probation?
A. Yes, sir.
Q. Alright. You had to stay with your children at that point?
A. Yes, sir.
* * * *
Q. As a result of your getting a two-year probation, you have to testify the way you’re testifying right now for the Jury, to work out that deal?
A. Yes, sir.

It does not appear that defendant was deprived of his right of confrontation. The judge did not bar counsel from questioning Ms. Gums about a deal she might |19have had with the State. The court simply instructed counsel to re-phrase his question. Counsel was, ultimately, able to draw from Ms. Gums an apparent admission that her two-year probation was based on a “deal.” Counsel might have attempted to elicit further details regarding this “deal,” but chose not to do so. The testimony adduced from Ms. Gums was sufficient to expose her bias or interest. Based on the foregoing, this Assignment of Error is without merit.

ERRORS 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). No patent errors were found.

AFFIRMED.

      . The minute entry for July 18, 2000 provides that the bill was amended and defendant was arraigned on that day. However, based on the handwritten amendment on the bill itself, and the transcript of July 17, 2000, indicate that July 17 is the correct date.

      . The Supreme Court stated that, “the state generally has no statutory discovery duty to disclose the pre-trial statements of its witness unless they are co-defendants in the case. La.C.Cr.P. art. 722. The state’s duty under the Due Process Clause to disclose material exculpatoiy evidence protects the defendant's right to a fundamentally fair trial, United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985).” State v. Jones, 00-2837 at pp. 7-8, 791 So.2d at 626.


source: Caselaw Access Project

author: 2SOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joseph J. SANDOVAL.
    No. 02-KA-230.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Parish of Jefferson, State of Louisiana, Gretna, LA, for PlaintiffAppellee.
    Dwight Doskey, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and WALTER J. ROTHSCHILD.
   2SOL GOTHARD, Judge.

The defendant, Joseph Sandoval, was convicted of one count of distributing heroin and one count of possession with intent to distribute heroin, violations of LSA-R.S. 40:966(A), and he was sentenced to the statutorily mandated sentence of life imprisonment without benefit of probation or suspension of sentence on each count, to be served concurrently. The defendant now appeals. For the following reasons, we affirmed the defendant’s convictions and sentences.

At trial, the State presented testimony that defendant engaged in a hand-to-hand transaction with Terry Russell at approximately 4:45 p.m. on April 5, 2000. Earlier that day, officers from the Jefferson Parish Sheriffs Office, along with the Drug Enforcement Administration (DEA) were surveilling a residence located at 554 Sizeler Avenue in Jefferson Parish. According to Sergeant Jason Renton, the Sheriffs Office had learned that Terry Russell and another man, Kevin Bordelon, were going to obtain a quantity of heroin. Albert Baudier, who was a narcotics detective with the Jefferson Parish Sheriffs Office at the time, explained that he was positioned near the house watching for a silver Mitsubishi pickup truck with a white camper. A truck matching that description arrived at the house and later departed the residence. Detective Baudier notified the other officers of the truck’s ^departure, and these officers followed the truck. The truck first went to a gas station where one of the occupants pumped gas, and then to the Blockbuster Video store at the intersection of Cleary Avenue and Veterans Memorial Boulevard.

Agent George Carcabasis testified that he was employed by the Jefferson Parish Sheriffs Office at the time of the incident, but was employed by the DEA at the time of trial. Agent Carcabasis testified that he was positioned approximately 20 to 25 yards from the Blockbuster parking lot. When the silver Mitsubishi truck arrived at the Blockbuster, Terry Russell, who was the passenger, and the driver, Kevin Bor-delon, exited the truck. A woman, later identified as Mary Bocz, arrived. Agent Carcabasis observed all three people walking around the parking lot as if waiting for someone. Mary Bocz used the pay phone in the parking lot, and then all three individuals returned to their vehicles. Shortly thereafter, a man, later identified as the defendant, pulled into the parking lot. The defendant was accompanied by a passenger, Erin Woods.

Agent Carcabasis testified that he observed Terry Russell exit the Mitsubishi and walk to the driver’s side of the defendant’s vehicle. After Russell and the defendant held a brief conversation, Russell reached into his pocket and handed what appeared to Agent Carcabasis was money to the defendant through the driver’s side window. According to Agent Carcabasis, the defendant handed Russell “something,” which Russell immediately placed in his pocket. After they talked for a few minutes, Russell walked away. Mary Bocz then approached the driver’s side window and began talking to the defendant. Agent Carcabasis radioed the other sur-veilling officers of the transaction between Russell and defendant and told them that it appeared a second transaction was taking place. Thereafter, Agent Carcabasis told the officers to “move in and effect the stop of all of the individuals involved.”

^Lieutenant Emile Larson of the Jefferson Parish Sheriffs Office arrested Terry Russell. According to Lieutenant Larson, Russell held one foil packet in his hand. Lieutenant Larson testified that he searched Russell incident to his arrest and found a prescription bottle in the name of Kevin Bordelon in Russell’s pocket. The prescription bottle contained 17 foil packets. According to Charles Krone, the State’s forensic expert, all of these foil packets contained heroin.

Sergeant Warren Bujol, a Jefferson Parish Narcotics Officer, testified that he participated in the defendant’s arrest. According to Sergeant Bujol, the defendant was holding a Crown Royal bag, which defendant threw to the ground, when the officers removed him from the car. Sergeant Bujol testified that the Crown Royal bag contained a plastic bag containing rice and 12 foil packets, which Mr. Krone testified tested positive for the presence of heroin. The officers also found a loaded .40 caliber pistol underneath the center console of the defendant’s car. Lieutenant Larson testified that he seized $486.00 in cash from Erin Woods’ purse. Agent Car-cabasis testified that he seized $480.00 in cash, all in denominations of $20.00, from the defendant’s pocket.

Although defendant presented no evidence at trial, the theory of the defendant’s case presented to the jury in closing argument was that the defendant attempted to purchase drugs from Russell. At most, the defense urged that the defendant was guilty of attempted simple possession of heroin.

In his third assignment of error, the defendant contests the sufficiency of the evidence presented at trial. When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, we first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Alexis, 98-1145 (La.App. 5 Cir. 6/1/99), 738 So.2d 57, 64, writ denied, 99-1937 (La.10/13/00), 770 So.2d 339.

|sThe defendant contends that the State’s evidence presented at trial is legally insufficient to support his convictions for possession with intent to distribute heroin and distribution of heroin. The State responds that it proved beyond a reasonable doubt that the defendant committed these offenses.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See also, State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1292-1293; State v. Holmes, 98-490 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690.

When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that “assuming every fact to be proved that the [circumstantial] evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Captville, 448 So.2d 676, 678 (La.1984); State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, supra.

Defendant was convicted of possession with intent to distribute heroin and distribution of heroin, violations of LSA-R.S. 40:966(A). The defendant claims the evidence was insufficient to support his distribution conviction because Agent UCarcabasis could not see what was exchanged between Russell and the defendant. The defendant does not claim that Agent Carcabasis’ testimony was unbelievable; rather, defendant urges that the officer’s testimony failed to establish that defendant distributed heroin to Russell. We find that the State’s witnesses’ testimony and the circumstances in this case established that the defendant distributed heroin beyond a reasonable doubt.

The physical evidence at trial linked the defendant to Russell. Incident to arrest, Lieutenant Larson seized an address book from Terry Russell According to Agent Robert Norton of the DEA, the defendant’s cellular phone number was 259-5462. That phone number is in Terry Russell’s address book under the “J” entries. ■

Further, it appears that Agent Carcaba-sis’ testimony about the hand-to-hand transaction between Russell and defendant established that defendant distributed the heroin to Russell. According to Agent Carcabasis, Bordelon and Russell were walking around the parking lot as if “looking for somebody or waiting for something to show up.” Shortly thereafter, defendant showed up and Russell approached the defendant’s car. Agent Carcabasis consistently testified that he believed Russell exchanged money for an object with the defendant. Agent Carcabasis said that Russell reached into his pocket and gave “what appeared to be money” to the defendant, and defendant handed “something” to Russell. On cross-examination, Agent Carcabasis testified that Russell “definitely went into his pocket and retrieved money.” Thereafter, the defendant and Russell “both met hand to hand and did the exchange for money.” Mary Bocz then approached the defendant’s window, but the officers descended upon the parking lot before anything took place between the defendant and Bocz.

Agent Carcabasis freely acknowledged that he did not see exactly what the defendant had passed to Russell. However, the defendant was found to be in possession of $480.00 in cash and twelve packets of heroin, which Agent Baudier | described to be “dosage units.” Although Russell was found to be in possession of seventeen “dosage units” of heroin, and one “dosage unit” of heroin in his hand, there was no evidence that Russell had any money on his person. These circumstances support an inference that the defendant was the distributor, not Russell.

“The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness.” State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, 1243, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Hotoph, 99-243 (La.App. 5 Cir.11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066. Under the circumstances presented in this case, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant distributed heroin to Russell.

The defendant also contends that the State failed to prove that he possessed heroin with the intent to distribute. The essential elements of the crime are 1) possession and 2) specific intent to distribute. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 786, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. The defendant does not dispute that he possessed heroin, only that the State failed to prove he had the specific intent to distribute it. The defendant points out in his brief that the State did not present case any expert testimony regarding the amount of heroin that might be possessed by an individual user. Further, although the defendant was in possession of $480.00 in denominations of $20.00, there was no evidence regarding the cost of an individual packet of heroin.

Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal Inconsequences to follow his act or failure to act.” L8A-R.S. 14:10(1). The determination of specific criminal intent is a question of fact and may be inferred from the circumstances and from the actions of the defendant. State v. Lewis, 97-160 (La.App. 5 Cir. 7/29/97), 698 So.2d 456, writ denied, 97-2381 (La.3/27/98), 716 So.2d 881.

The Louisiana Supreme Court has recognized a series of factors that may give rise to a reasonable inference that a defendant had the specific intent to distribute a controlled dangerous substance in State v. Hearold, supra; State v. House, 325 So.2d 222 (La.1975).

These factors include:

(1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

State v. Hearold, 603 So.2d at 735.

However, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible. State v. Hearold; State v. Lassere, 95-1009 (La.App. 5 Cir. 10/1/96), 683 So.2d 812, writ denied, 96-2655 (La.4/18/97), 692 So.2d 445.

In this case, Agent Carcabasis observed Terry Russell exchange what the officer believed was money for an object with the defendant, a packet of heroin was found in Russell’s hand, and seventeen more packets were found in his pocket. Further, a handgun was found in the console of the automobile that defendant was driving. The Louisiana Supreme Court has recognized that there is a close association between narcotics traffickers and weapons. See, State v. Wilson, 00-178 (La.12/8/00), 775 So.2d 1051, 1053 per curiam, and the cases cited therein.

|9We find that the evidence was sufficient under the Jackson standard to support defendant’s conviction for possession with intent to distribute heroin.

In his first allegation of error, the defendant contends that Judge Boden-heimer should have recused himself from the defendant’s narcotics distribution case because he was apparently involved as a confidential informant with the Jefferson Parish District Attorney’s Office and Sheriffs Office. The State responds that, although it is “aware of the judge’s situation,” the record does not contain any evidence supporting the defendant’s claims in this assignment of error.

In this case, the record reflects that the defendant did not move to recuse the trial judge. While La.C.Cr.P. art. 672 provides that a judge may recuse himself, there is nothing in the record before us to indicate that the trial judge should have recused himself.

Both the Louisiana Supreme Court and this Court have recognized that courts of appeal have no authority to receive or review evidence not contained in the district court record. State v. Oubichon, 422 So.2d 1140, 1141 (La.1982); State v. Bibb, 626 So.2d 913, 924 (La.App. 5 Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188. The district court record does not contain any evidence supporting the defendant’s claims in this assignment of error. Accordingly, this assignment of error presents nothing for this Court to review on appeal.

We note that defendant is not without a remedy, however. The defendant’s claim would be more properly raised in an application for Post-Conviction Relief. See, La.C.Cr.P. art. 924 et seq; State v. Harris, 02-873 (La.App. 5 Cir. 1/28/03), 839 So.2d 291.

In his second allegation of error, the defendant alleges that the trial judge improperly permitted Agent Carca-basis to give what amounted to expert testimony on the issue of hand-to-hand narcotics transactions. Specifically, the defendant contends that Agent Carcabasis’ testimony on redirect examination regarding |inhis past experiences regarding hand-to-hand narcotics transactions constituted improper expert opinion as to the ultimate issue of defendant’s guilt. The State responds that the trial judge properly overruled the defendant’s objection because the officer did not express an opinion as to the defendant’s guilt.

At trial, defendant objected to Agent Carcabasis’ redirect testimony on the basis that it was beyond the scope of cross-examination and that the testimony was irrelevant. Not once during the testimony referred to in defendant’s brief, did the defendant challenge Agent Carcabasis’ testimony on the basis that the officer gave expert testimony. Although the defendant objected to Agent Carcabasis’ rebuttal testimony on the basis that he had not been qualified as an expert, the defendant does not challenge that testimony oh appeal.

Since the defendant raises a new basis for the objection for the first time on appeal, the trial court was not afforded the opportunity to rule on it. Both this Court and the Louisiana Supreme Court have recognized that a new basis for an objection may not be raised for the first time on appeal. State v. Cooks, 97-0999 (La.9/9/98), 720 So.2d 637, 644; cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999); State v. Burdgess, 434 So.2d 1062, 1067 (La.1983); State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 77, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481. In Winfrey, this Court addressed the defendant’s argument only on the basis of the objection raised at trial, not the new basis urged for the first time on appeal. Accord, State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 950. Accordingly, we limit our review the basis of the objection urged at trial, which was that the testimony was irrelevant and beyond the scope of cross-examination.

According to LSA-C.E. art. 611(D), “[a] witness who has been cross-examined is subject to redirect examination as to matters covered on cross-examination and, in the discretion of the court, as to other matters in the case.” In The trial court is vested with much discretion in controlling the scope and extent of cross-examination, as well as redirect examination, and those rulings are not to be disturbed on appeal absent an abuse of that discretion. State v. Brooks, 94-1031 (La.App. 5 Cir. 5/30/95), 656 So.2d 772, 775.

Except as limited by the Code of Evidence and other laws, all relevant evidence is admissible and all irrelevant evidence is inadmissible. LSA-C.E. art. 402. Relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than without the evidence. LSA-C.E. art. 401. Although relevant, evidence may nonetheless be excluded, if the probative value is substantially outweighed by its prejudicial effect. See, LSA-C.E. art. 403. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Francis, 98-811 (La.App. 5 Cir. 1/26/99), 727 So.2d 1235, 1237, writ denied, 99-0671 (La.6/25/99), 746 So.2d 597.

During redirect examination, the defendant objected when Agent Carcabasis testified about his past experiences in observing hand-to-hand transactions. Agent Carcabasis stated that he had seen “probably well over 100” such transactions, and that he was not always able to see the contraband or the money. According to Agent Carcabasis, investigations following the transactions, however, revealed that a drug deal had occurred in each of the transactions. The trial judge overruled the defendant’s objections to this testimony.

On cross-examination, the defense had questioned Agent Carcabasis intensely on what he had seen when Russell’s and defendant’s hands met. Agent Carcabasis testified that he believed Russell had handed money and in return, defendant gave Russell an object. Agent Carcabasis acknowledged that he could l^not determine the nature of the object. Further, Agent Carcabasis admitted that the object defendant handed to Russell “could have been anything.”

Agent Carcabasis’ redirect testimony regarding his past experiences with observing hand-to-hand transactions was in response to the matters covered by the defendant on cross-examination. Further, the defendant was afforded the opportunity to re-cross Agent Carcabasis, and in fact, elicited the same testimony. On recross, the defense asked Agent Carcabasis how many “surveillance[s]” he had observed, and Agent Carcabasis replied “100’s.” When the defense attorney asked Agent Carcabasis if he had ever determined that no contraband was involved in these surveillances, Agent Carcabasis replied negatively. Because Agent Carcaba-sis’ testimony on re-direct was relevant to the matters defendant covered on cross-examination, we find that the trial judge did not err in overruling the defendant’s objections.

Finally, we have reviewed the record 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 review reveals no errors patent in this case.

For the above-discussed reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . It is noted that at the time of the instant offenses and at sentencing, distribution and possession with intent to distribute heroin were punishable by a mandatory life sentence. However, effective June 15, 2001, the term of imprisonment for these offenses was reduced to not less than five nor more than fifty years at hard labor, at least five years of which shall be served without benefit of probation or suspension of sentence. See 2001 La.Acts 403 § 4.

      . La. R.S. 40:966(A) provides:
      A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I.


author: 2CLARENCE E. McMANUS, Judge.

text:
    Byron T. DASPIT v. Larry A. TALBERT d/b/a Progix or Progix, Inc.
    No. 02-CA-1129.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.
    Raymond A. Milly, Metairie, LA, for plaintiff-appellant.
    William T. Finn, Robert Stassi, Carver, Darden, Koretzky, Tessier, Finn, Bloss-man & Areaux, New Orleans, LA, for defendant-appellee.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2CLARENCE E. McMANUS, Judge.

Appellant appeals the granting of Appel-lee’s Peremptory Exception of No Cause of Action. For the reasons which follow, we affirm the trial court’s judgment.

On July 26, 2000, Byron T. Daspit (“Daspit”) executed a written lease for commercial property located at 2240 Piedmont St., Suite A, Kenner, Louisiana. The lease lists Daspit as lessor and PROGIX as lessee. The lease was signed by Daspit as lessor and Larry A. Talbert (“Talbert”) as lessee. The lease expired on July 25, 2001. After the expiration of the lease, the business remained in the premises and paid rent on a month to month basis until December 26, 2001. The business continued to occupy the premises but did not pay rent for December 2001 through May 2002. Daspit sent written notices to Tal-bert regarding the violations of the lease agreement. On April 3, 2002, Daspit sent a notice of past due rent to PROGIX, Inc. A certified mail receipt shows that the letter was delivered on April 4, 2002. Notices to Vacate were sent to Larry A. Talbert, d/b/a PROGIX, Inc. on May 3, 2002 and May 21, 2002.

[3On May 24, 2002, Daspit filed a Petition to Recover Past Due Rent, Damages and Rule to Evict naming Larry A. Tal-bert, d/b/a PROGIX or PROGIX, Inc. as defendants. After the requisite notices to vacate were sent to Larry A. Talbert, d/b/a PROGIX, Inc. and attached to the door of the premises, a Rule for Eviction was set and Talbert, d/b/a PROGIX, Inc. was served. On June 28, 2002, the trial court entered judgment ordering Talbert, or PROGIX, to vacate the premises. Talbert then filed various Exceptions, including a peremptory exception of no cause of action. Talbert argued that the lease listed PROGIX as the lessee, therefore, Daspit had no cause of action against Talbert personally. After a hearing on the matter, the trial judge granted the exception and dismissed Daspit’s claim for unpaid rent against Talbert. Daspit appeals this judgment.

DISCUSSION

The lease executed between the parties clearly names PROGIX as the lessee. The first paragraph of the lease states:

This lease is made between Byron Daspit herein called Lessor, and PRO-GIX 120 Mallard Street, St. Rose, LA 70047, herein called Lessee.

Larry Talbert, individually, is not listed as a lessee. The demands and notices sent by Daspit after failure to pay the rent were addressed to either Larry A. Talbert d/b/a PROGIX, Inc. or PROGIX, Inc. In addition, the Petition filed by Daspit names Larry A. Talbert d/b/a PROGIX or PROGIX, Inc. as defendant. Therefore, Daspit knew that PROGIX was a corporation and that PROGIX was the proper lessee. Daspit’s claim that he thought PROGIX was only a trade name of Talbert is completely unsupported by the record.

In F & G Investments, L.L.C. v. ISIS Hickory, Ltd., 01-989 (La.App. 5 Cir. 1/15/02) 807 So.2d 1004, this Court held that the individual who signed the lease as a representative of a company was not personally liable under that lease. The lease named the lessee as F & G Investments, a limited liability company, and the | individual, who was the company’s president, signed the lease. This Court found that the individual signed the lease as a representative of the company and was not personally liable.

We find that Talbert’s signature at the end of the lease, that names PROGIX as the lessee, does not create individual liability for Talbert. Talbert signed the lease as an agent for PROGIX. Daspit’s only claim for the unpaid rent pursuant to the lease is against the corporation of PRO-GIX. Therefore, Daspit has no cause of action against Talbert individually and the trial court correctly granted Talbert’s exception of no cause of action.

Accordingly, we affirm the trial court’s granting of Talbert’s exception of no cause of action.

AFFIRMED.


author: 2JAMES L. CANNELLA, Judge.

text:
    Roger NICKS, v. AX REINFORCEMENT COMPANY and Louisiana Workers’ Compensation Corporation.
    No. 02-CA-1116.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Lloyd N. Frischhertz, Jr., William J. Levenson, New Orleans, LA, for Appellant.
    David K. Johnson, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Appellees.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   2JAMES L. CANNELLA, Judge.

In this intentional tort suit, Plaintiff, Roger Nicks, appeals from a summary judgment granted in favor of Defendants, his employer, AX Reinforcement Company (AX), and its insurer, Louisiana Workers’ Compensation Corporation. For the reasons which follow, we affirm.

On April 24,1998, while working for AX, installing rebar for a cement canal wall, the Plaintiff fell from a height of about ten to twelve feet when the wall hook on his safety belt slipped off of the bar to which it was attached. AX was building a canal that was to have a cement bottom and walls. On the day of the injury, a four man crew was installing steel rebar along the walls of the canal. The walls of the canal were about ten feet high and almost vertical. The job required the workers to place 60 foot sections of steel rebar against the wall of the canal and to tie the rebar in place. In order to tie the rebar, the workers needed to climb the wall with the use of wall hooks which prevent the worker from falling. Plaintiff’s foreman, Jerry Alley (Alley), provided him with the safety belt which he was using at the time of the accident. The safety belt’s hook had been altered by wiring open the safety clasp. The hook dislodged from the bar and Plaintiff fell to the ground, sustaining injuries.

LThe Plaintiff filed suit on April 26, 1999, alleging that AX was liable to him for an intentional tort because he was made to work with a safety belt that had been intentionally altered to disengage the safety device on the wall hook. Plaintiff alleged in his petition that his foreman, Alley, had wired the safety clasp on the wall hook open so that the employees could work faster.

Following discovery, AX filed a Motion for Summary Judgment. As part of its motion, AX attached parts of the depositions of Plaintiff, Cleveland Mealey (Mea-ley), a co-worker, and Alley. Alley specifically denied wiring open the safety clasp on the safety belt hook used by Plaintiff. Further, he stated that he told the workers about the safety clasp and told them to be careful with it. Although he owned his own safety belt and did not generally use the company belts, he stated that he would have switched belts with his employees had they requested it. Alley stated that the belt was not safe with the clasp wired open, but that they were used that way and he did not think that anyone would be injured. Plaintiff stated in his deposition that he had refused to use one particular altered belt in the past and that co-workers would switch with him. He further stated that he had a heated disagreement with Alley over the belts the day before. Nevertheless, on the day of the accident, he took the belt with the safety clasp wired open and put it on to do the job. He testified that he did not think that he would be injured as a result of using the belt with the safety clasp wired open. Mealey stated in his deposition that he did not hear Alley say anything about the safety belts being a problem. He also did not notice that the clasp was wired open on either safety belt. He simply picked up one and put it on. He stated that his safety belt was working normally that day. He also stated that he had seen safety belts with the clasp wired open. Sometimes it was done because they were broken and sometimes it was done so a worker could work faster by not having to disengage the safety clasp every time he moved.

|4Following argument on the Motion for Summary Judgment and submission of the exhibits, the trial court ruled in favor of AX finding:

I think that the employer knew that the safety belts were unsafe, they knew that whether they tied them back or whether they were just broken, they knew that they were requiring men to climb with safety belts that were not properly functioning, and they knew that the whole point of the safety belt is so that if you fall you might wrench your back but you certainly are not going to sustain horrible injuries, and knowing that they put the guys up on the wall.

The trial court granted the summary judgment, noting that although she did not favor the alteration or removal of safety devices on work equipment, the actions in this case did not rise to the level of an intentional tort as defined by the jurisprudence. It is from this summary judgment that Plaintiff appeals.

On appeal Plaintiff argues that the trial court erred in granting the summary judgment in favor of AX. Plaintiffs primary argument is that there are material issues of fact that preclude summary judgment. Plaintiff argues that there was disputed testimony as to whether Alley wired the clasp open. Further, the case turns on Alley’s knowledge and intent, which are not proper subjects for summary judgment.

AX argues, to the contrary, that there are no issues of fact that are material to the resolution of the legal question presented herein. Injuries to workers are covered by workers’ compensation except in extreme cases of intentional action by the employer or co-employees for which the employer is responsible. Neither of which is present here. Thus, the summary judgment, AX argues, was properly granted.

The appellate standard of review for summary judgments is well settled. Our Supreme Court has recently summarized the law on summary judgment as follows:

|ROur review of a grant or denial of a motion for summary judgment is de novo. A motion for summary judgment will be granted “if 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 the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows:
The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

. La. C.C.P. art. 966(C)(2).

“In effect, the amendment ‘levels the playing field’ between the parties in two ways: first, the supporting documentation submitted by the parties should be scrutinized equally, and second, the overriding presumption in favor of trial on the merits is removed.” Hardy v. Bowie, 98-2821, p. 6 (La.9/8/99), 744 So.2d 606 (citing Hayes v. Autin, 96-287 (La.App. 3rd Cir.12/26/96), 685 So.2d 691, 694, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41). “The amendment to Art. 966 brings Louisiana’s standard for summary judgment closely in line with the federal standard under Fed. Rule Civ. Proc. 56(c) ...” Id.

Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

It is also well settled that claims for injury or death resulting from a work-related accident are almost always recoverable only through workers’ compensation. La. R.S. 23:1032 provides, in part:

(l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages....
LB. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional tort.

Section B, the intentional act exclusion, has been judicially interpreted numerous times. Two recent Supreme Court cases, Carrier v. Grey Wolf Drilling Company, 00-1335 (La.1/17/01), 776 So.2d 439 and Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208, explain that the exclusion is narrow, and that the Louisiana legislature has rejected amendments to the section that would allow double compensation in cases where an employer violated a safety regulation, failed to provide a required safety device or, through a supervisor, acted with gross negligence.

In Reeves, the Supreme Court, citing language from Bazley v. Tortorich, 397 So.2d 475, 481 (La.1981), stated that “the words ‘intentional act’ mean the same as ‘intentional tort’ in reference to civil liability.” The Supreme Court went on to quote from Bazley, stating:

We held that the meaning of “intent” in this context “is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.”

The Supreme Court then explained “substantially certain” as follows:

Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.
The “substantially certainty” element has been explained in this context as follows:
The traditional definition is simply a way of relieving the claimant of the difficulty of trying to establish subjective state of mind (desiring the consequences) if he can show substantial certainty that the consequences will follow the act. The latter stakes the case out of the realm of possibility or risk (which are negligence terms), and expresses the concept that an actor with such a certainty cannot be believed if he denies that he knew the consequences would follow. In human experience, we know that specific consequences are substantially certain to follow some acts. If the actor throws a bomb into an office occupied by two persons, but swears that he only “intended” to hurt one of them, we must conclude that he is nonetheless guilty of an intentional tort as to the other, since he knows to a virtual certainty that harmful consequences will follow his conduct, regardless of his subjective desire.
Malone & Johnson, Louisiana Civil Law Treatise, Volume 14, Workers’ Compensation Law & Practice, § 365, p. 208.
“Substantially certain to follow requires more than a reasonable probability that an injury will occur and ‘certain’ has been defined to mean ‘inevitable’ or ‘incapable of faffing.’ ” Jasmin v. HNV Cent. Riverfront Corp., 94-1497 (La.App. 4th Cir.8/30/94), 642 So.2d 311, writ denied, 94-2445 (La.12/9/94), 647 So.2d 1110 at 312. “[A]n employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the ‘substantial certainty’ requirement.” Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La.App. 4th Cir.1993), writ denied, 629 So.2d 347 (La.1993). “Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.” Id. (citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-808 (La.App. 4th Cir.1991)).

In the present case, viewing the facts most favorable to the Plaintiff, we find no factual issue material to the resolution of the legal issue here, that is, do the facts, as alleged and supported by the depositions, give rise to an action by Plaintiff, against his employer for intentional tort. We find, under the jurisprudence, that they do not.

As found by the trial judge, we accept that the employer supplied the safety belt to Plaintiff with the clasp on the wall hook wired open. We also accept Plaintiffs version that Alley did not warn him that the clasp was wired open. We |snote that Alley stated that disengagement of the clasp by wiring it open was unsafe. Also, we accept Plaintiffs version that there was no showing that he could have repaired the clasp. However, there was testimony that it was not an uncommon practice to use safety belts with the hooks wired open. Further, there was no evidence of prior accidents occurring from this practice. Alley stated that he did not think that the Plaintiff would be injured by using the belt to do the work that day. Plaintiff himself stated that he did not think that he would be injured if he used the safety belt with the clasp tied open. While we agree that the disregard of employee safety can reach a level of gross negligence, it does not, under the current state of our jurisprudence, meet the “substantial certainty” requirement of the intentional act exception to the Workers’ Compensation Act.

Accordingly, for the foregoing reasons, we affirm the ruling of the district court granting summary judgment in favor of AX and its insurer and dismissing Plaintiffs intentional tort suit against them, because Plaintiffs exclusive remedy against his employer is in workers’ compensation.

AFFIRMED.


author: 2EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Henrik A. LARSEN v. Anna Meria POLK.
    No. 02-CA-1104.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.
    Writ Denied April 25, 2003.

      Patricia M. Franz, Metairie, LA, for Plaintiff-Appellee.
    Dennis W. Moore and Juana Marine, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and SUSAN M. CHEHARDY.
   2EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Anna Meria Polk, the mother of a minor child, from a judgment 1) holding her in contempt for violating a previously issued judgment of child support and visitation, and 2) granting the petition of the Henrik Larson, the father, to grant him sole custody and relocate the child to Sugar Land, Texas, a suburb of Houston. For the following reasons, we affirm that judgment.

The child at issue here was about six years old on November 29, 2001, the date of the trial leading to this appeal. The issues of custody, visitation and child support have been the subject of extensive litigation between the parents, and the facts of these previous disputes were substantially presented at the present trial.

IsThe most significant of these prior proceedings was a joint rule for custody and contempt against the mother heard on April 19 and August 28, 2000, before Judge Ad Hoc M. Joseph Tiemann. The substantive facts developed at that hearing involved several expert reports rendered by Dr. William Janzen, a psychologist specializing in custody evaluations. His original opinion was that the father would be the better custodial parent because the mother was an airline stewardess who was frequently out of town. The mother thereupon made representations that she had stopped flying as a stewardess and would be doing administrative duties instead. Based on that information, Dr. Janzen concluded that she would be the better custodial parent. However, prior to trial the father presented evidence from the airline that indicated that the mother continued to work as a stewardess. At that point Dr. Janzen stated that he was unable to verify which version was correct and deferred to the court on that point. He did state that if the mother were still flying three or four days a week, then he would re-assert his original opinion that the father would be the better custodial parent.

On September 27, 2000, a judgment was signed ordering joint custody, and designating the father as the domiciliary parent. It further provided for alternating weekly visitation with a priviso that if either parent were to be out of town during their week, they would first offer the other parent visitation for that time before attempting to make other arrangements for the care of the child.

A second judgment was entered on October 30, 2000, 'holding the mother in contempt for “her deceit and abuse of the process and procedure of the court,” obviously in regard to her misrepresentations that she was no longer flying. She was sentenced to six-months in jail, suspended, and ordered to pay the father some $5,000 in attorney fees and back child Usupport. Future child support was ordered shared in a ratio of 72% to the father and 28% to the mother.

Eight months later, on June 11, 2001, the father filed two rules: one for contempt, alleging that the mother had violated the visitation provisions of the prior judgment; and the other to grant him sole custody of the child. While these matters were pending the father also notified the mother that he was seeking to relocate the child to Texas because of his job reassignment. The mother filed an opposition to this relocation on August 29, 2001.

All of the above matters were tried on November 29,2001. At trial the father asserted that the mother had on numerous occasions flown overnight without offering him the opportunity to keep the child. He also alleged that she had on other occasions either not returned the child for his visitation or had returned her late, and that she was often uncooperative about other visitation problems. He finally asserted that she had not paid her 28% share of the child’s private school tuition, in spite of repeated demands.

The mother testified that either these events never occurred or that there was an innocent explanation for them. When asked about the tuition, she at first said that it was not yet due, and when confronted with demand letters to the contrary, finally admitted that she did not then have the funds. She further stated that she was taking a leave of absence from her job and produced a letter from the airline so stating.

Two judgments issued. In the first the trial judge found her in contempt for reasons orally assigned. In those reasons he stated that he found her testimony unbelievable. He noted particularly that her contention that she would be taking a leave of absence was another ruse to maintain joint custody and that he was convinced she would begin flying again just as she had done before. He also found her failure to pay her share of the tuition | ^inexcusable and further noted her attempt to claim it was not yet due in the face of incontrovertible evidence to the contrary. He also observed that this was the second time she had been in contempt of a court order. He sentenced her to 90 days in jail, suspended, but with active probation, and ordered her to pay $5845.69 in arrearages and attorney fees, plus court costs.

In the second judgment he granted the father’s petition for sole custody as well as his request to relocate the child to Texas. In his reasons for judgment he noted particularly that the factor weighing most heavily in favor of relocation was the fact that the father could provide a more stable home for the child. He said that although the mother had indicated that she would stop flying, he simply did not believe her. In conjunction with this latter judgment, the judge also approved of a liberal visitation schedule for the mother, including six weeks in the summer and various other vacation times, which had been proposed to him by agreement of the parents.

The mother has now appealed both judgments. She urges as error that the trial judge erred in 1) approving of the relocation to Texas, 2) granting the father sole custody, and 3) holding her in contempt.

As in all child custody matters, district court determinations of relocation petitions are entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Curole v. Curole, 02-C-1891 (La.10/15/02), 828 So.2d 1094. Moreover, factual findings made in those courts cannot be disturbed absent manifest error. Id. Similarly, custody decrees will not be set aside absent a clear showing of an abuse of the trial court’s discretion. Saucier v. Saucier, 98-659 (La.App. 3rd Cir.10/7/98), 719 So.2d 702.

The specific law applicable to relocation of children is set forth at La. R.S. 9:355.1 et seq. Section 355.13 states that the parent seeking | ^relocation bears the burden of proving that the relocation is being made in good faith and that it is in the best interest of the child. Section 355.12 lists eight factors to be considered by the courts in deciding contested reloca-tions, but does not specify that greater weight be given to any of them. See Curole v. Curole, supra.

In the present case, the trial judge addressed the above factors as follows. As to the good faith of the relocating parent, he found that the father clearly me this criterion. This determination was based on the father’s testimony that his employer, Schlumberger Oilfield Services, was transferring him to the Houston area, and that if he did not accept that promotion he would probably be terminated. The father also testified that he had recently turned down another promotion opportunity with the company because it would have involved extensive travel and made any custody and visitation arrangements much more difficult.

As to the factors of La. R.S. 9:355.12, he made the following findings:

1) The nature, quality, extent of involvement, and duration of the child’s involvement with the parents and family he found to be about equal as to whether relocation was advisable or not. He noted that the child had had a lifelong and close relationship with both parents, as well as with her maternal grandmother and various cousins. The one caveat that he expressed, based on the reports of Dr. Janzen, was that the mother might well leave the child with the grandmother for excessive periods of time while she was flying.

2) Concerning the age and developmental stage of the chñd and her physical, educational and emotional development, the judge concluded that relocation would be in the child’s best interest. He based this on the|7need for stability in the child’s life which he deemed the father as more capable of providing. He again recited the previously noted problem of the mother often leaving the child with her grandmother when she was flying, and also apparently living in a number of different places since the child was born. Finally, he noted that the mother had been less than candid in several court appearances about her work and living arrangements with her daughter.

3) As to the feasibility of preserving the child’s relationships with her parents and family, the judge found that the father would facilitate visitation with the mother and had agreed to pay one-half of the child’s air-fare between Houston and New Orleans. He also pointed out the mother would get discounted air-fares as an airline stewardess thus reducing the financial burden of visitation travel.

4) The child’s preferences were not considered because she was only six years old at the time of the hearing.

5) Concerning the relocating parent’s pattern of fostering or impeding the child’s relationship with the other parent, the trial judge found that the father had been exemplary in his efforts to promote the child’s relationship with her mother. On the other hand, he found that the mother had hindered visitation.

6) The judge found that the quality of life of both the child and the father would be improved by the relocation. He noted that the housing and school situation in Sugar Land was good, and that the father was being promoted by his company.

7) The judge found that the father’s motives for seeking relocation were basically that he was being promoted and if he did not accept the new position h e would probably be discharged from the company. Further, he | ¿found well founded the father’s fears that if he moved to Texas without the child, he would have a much more difficult time of maintaining his relationship with her.

8) In considering any other factors which weighed toward approving of the relocation, the judge emphasized that his concern was that the child have a stable home, and that because of the mother’s frequent travel, the evidence weighed in favor of the father in that regard.

Our review of the record in this matter shows that the trial judge carefully considered the evidence and properly applied the criteria set forth in La. R.S. 9:355.12. While we may have made other factual findings, we cannot say that those made by the trial judge are manifestly erroneous, and must therefore affirm them. Further, his ultimate resolution that sole custody and relocation of the child, with liberal visitation on the part of the mother does not constitute an abuse of his much discretion in dealing with custody matters. We therefore must affirm those results as well.

We note here that the mother also asserts as error the failure of the trial judge to order another evaluation by Dr. Janzen in regard to the relocation petition. The record does not show that such a motion was made on the record. However, whatever that circumstance, the mother could have gotten such a report on her, own without a court order. We therefore find no error in the trial judge not himself ordering such a re-evaluation.

The mother’s next alleged error is the award of sole custody to the father. We reject this assignment as well. As noted above, custody decrees will not be overturned absent a clear showing of abuse of discretion. Saucier v. Saucier, supra. Also, a change in custody will not be ordered unless there has been some change in the circumstances warranting such a change. Benson v. Benson, 597 So.2d 601 (La.App. 5th Cir.1992). Also, | awhere animosity or other disagreements between the parents make joint custody difficult, sole custody may be warranted. Id.

Here, it is clear that a significant change in circumstances has come about, ie. the child’s relocation to Texas. Additionally, evidence at the hearing showed that there were problems with the joint custody arrangement especially regarding the choice of schools. Again, while this court might have taken a different view of the evidence, we are unable to say that there was a clear abuse of the trial court’s discretion in ordering the sole custody arrangement with liberal visitation. We therefore must affirm that order.

We finally point out in regard to the custody arrangement that the mother may always urge a rule for reinstatement of a joint custody regime if circumstances warrant such a change.

The final issue is the contempt ruling. This ruling was based on a n umber of credibility determinations made by the trial judge. It is apparent that he credited the father’s testimony about numerous problems with the visitation schedule, and did not believe the mother’s explanations. Similarly, he determined that she was simply lying to the court about when the tuition was due. He also noted the previous contempt ruling by Judge Tiemann (which was for “deceit and abuse of process,”), and found that she was similarly misleading the court about her proposed work plans. Because these are all factual determinations, we cannot set them aside except for manifest error. Since we find no such error here, we must affirm those findings,- as well as the contempt ruling based upon them.

For the foregoing reasons, the judgments appealed are hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Raymond BROOKS, Jr. (Sentenced as “Raymond J. Brooks”).
    No. 02-KA-1051.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, Parish of Jefferson, State of Louisiana, Gretna, LA, for Plaintiff/Appellant.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and SUSAN M. CHEHARDY.
   2SOL GOTHARD, Judge.

This is defendant’s second appeal in this Court. On January 29, 2002, this Court affirmed defendant’s conviction for possession of cocaine, but vacated his enhanced life sentence as a third felony offender and remanded for a rehearing of the multiple offender proceeding. State v. Brooks, 01-864 (La.App. 5 Cir. 1/29/02), 807 So.2d 1090.

On July 27, 2002, the State commenced a new multiple offender proceeding based on the multiple offender bill of information that alleged defendant to be a fourth felony offender as follows: (1) armed robbery (LSA-R.S.14:64(A)) in 1977; (2) illegal carrying of a weapon by a felon (LSA-R.S.14:95.1) in 1986; and (3) simple robbery (LSA-R.S.14:65) in 1994. Thereafter, the State withdrew the armed robbery charge. At the hearing, the defense argued that the State was precluded from using the firearm charge as a predicate because to do so would subject defendant to double enhancement. The trial judge agreed, found defendant to be second felony offender and imposed an enhanced sentence of seven (7) years of imprisonment at hard labor without benefit of probation or suspension of sentence. The State now appeals.

|sIn this appeal, the State contends that the trial judge should have found defendant to be a third felony offender rather than a second felony offender. The State argues that the trial judge erroneously concluded that a conviction for illegal carrying of a weapon by a felon could not be used to enhance a subsequent conviction. The defendant responds that the trial judge properl/discounted the firearm predicate because to do otherwise would result in double enhancement.

According to the multiple offender bill of information in this case, the State alleged defendant to be a fourth felony offender based on three predicate convictions: (1) armed robbery (LSA-R.S.14:64(A)) in 1977; (2) illegal carrying of a weapon by a felon (LSA-R.S.14:95.1) in 1986; and (3) simple robbery (LSA-R.S.14:65) in 1994. The defendant committed the underlying offense of possession of cocaine on March 17, 1999 and was convicted on November 16,1999.

This Court has held that when a felon in possession of a firearm conviction is used to enhance the sentence of a subsequent conviction, the underlying felony used as an element of the firearm conviction may not be used in the multiple bill, since this constitutes double enhancement. See, State v. Bailey, 97-493 (La.App. 5 Cir. 11/12/97), 703 So.2d 1325, 1331.

The bill of information in defendant’s firearm conviction, admitted as evidence in the multiple bill hearings, indicates that the armed robbery was used as the underlying felony to support the firearm charge. Thus, both the armed robbery and the firearm convictions could not be used to enhance defendant’s sentence for the instant offense. The issue in this appeal is whether the State could use the firearm conviction, once it withdrew the armed robbery conviction from the court’s consideration. We find that such a conviction may be used.

A predicate conviction of possession of firearm conviction by a felon may enhance the penalty for a subsequent conviction so long as the underlying felony |4used as element of the firearm conviction is not also included in the multiple bill. In State v. Fletcher, 01-809 (La.App. 5 Cir. 2/26/02), 811 So.2d 1010, this court held that the defendant’s prior convictions for simple burglary and possession of a firearm by a felon could not both be used to enhance the defendant’s sentence for second degree battery conviction, because the simple burglary conviction was used as the underlying felony in the firearm charge. But the Fletcher court recognized that the firearm charge alone could be used as a predicate conviction for enhancement. Id. at 1014. See also, State v. Moten, 619 So.2d 683, 685 (La.App. 4 Cir.1993), in which the court held that the defendant’s prior conviction for attempted possession of a firearm by felon could be used to enhance the defendant’s cocaine possession conviction, since the trial court did not rely upon the felony underlying the firearm conviction to find the defendant a multiple offender.

Since the State withdrew the armed robbery conviction from the trial judge’s consideration, the illegal carrying of a weapon by a felon could have been used as a predicate to enhance the defendant’s instant conviction for possession of cocaine.

At the multiple offender hearing, the State introduced evidence of the defendant’s prior convictions for simple robbery and the illegal carrying of a weapon by a felon predicate offenses. Sergeant Virgil McKenzie, a fingerprints expert, linked the fingerprints of those convictions to the ones taken of defendant in court that day. With the firearm predicate combined with the simple robbery predicate, defendant would have been subject to a life sentence as a third felony offender, since simple robbery is defined as a crime of violence and illegal carrying of a weapon is punishable by imprisonment for more than twelve years. See, LSA-R.S. 15:529.1(A)(l)(b)(ii) (West, 2001); LSA-R.S. 15:95.1(B); LSA-R.S. 14:2(13)(y).

|KIn State v. Coston, 800 So.2d at 914, the court vacated the defendant’s multiple offender sentences because the trial judge erroneously concluded the defendant was a second felony offender when the State presented sufficient evidence to find the defendant to be a third felony offender. See also, State v. Dean, 588 So.2d 708, 709 (La.App. 4 Cir. 1991), writ denied, 595 So.2d 652 (La.1992).

Double jeopardy principles do not apply to sentence enhancement proceedings. State v. Walker, 01-51 (La.App. 5 Cir. 5/30/01), 789 So.2d 86, 91, writ denied, 01-1922 (La.5/10/02), 815 So.2d 834. Accordingly, we vacate the trial judge’s finding of the defendant to be a second felony offender and the enhanced sentence and remand for further proceedings consistent with the panel’s opinion.

MULTIPLE OFFENDER FINDING AND SENTENCE VACATED; CASE REMANDED.