author: I «WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Prince FRANKLIN.
    No. 03-KA-287.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Margaret E. Hay, Kenneth Bordelon, Ralph C. Cox, Assistant District Attorneys, Gretna, LA, for State of Louisiana, Plaintiff/Appellee.
    Jane L. Beebe, Gretna, LA, for Prince Franklin, Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD and EMILE R. ST. PIERRE, Pro Tempore.
   I «WALTER J. ROTHSCHILD, Judge.

Defendant, Prince Franklin, was indicted by a grand jury on June 14, 2001 and charged with second degree murder in violation of LSA-R.S. 14:30.1. He pled not guilty and filed motions to suppress his statements, identification and evidence. The motions were denied after a hearing on December 13, 2001. Defendant proceeded to trial on June 18, 2002. After a three-day trial, the jury found defendant guilty as charged. Defendant was sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence.

FACTS

At approximately 8:20 p.m. on May 6, 2001, Officer Oliver Silvey was dispatched to the Villa D’Ames apartment complex in Marrero. When he arrived, he saw a white female, later identified as Deena Willy, lying face up in the parking lot with a pool of blood around her. He called for an ambulance and secured the scene. The victim was transported to West Jefferson Medical Center where she was pronounced dead. An autopsy revealed she died of a single gunshot wound to the head, or specifically the right cheek.

During the investigation, the police discovered an eyewitness to the shooting, La-kayana Dennis. Ms. Dennis, who lived in an apartment in the Villa | ¡¡D’Ames complex, stated she was standing on her porch when she saw the victim get out of a burgundy-colored mini-van taxi cab. The victim was immediately approached by three black males selling drugs. Seconds later, Ms. Dennis saw defendant, whom she identified as “Pedie,” run up to the victim and shoot her in the head. Ms. Dennis called 911.

Based on the information obtained from Ms. Dennis later that night, the police prepared a photographic lineup. Ms. Dennis was shown the lineup and identified defendant as the person who shot the victim. The photographic lineup was also shown to another eyewitness, Lynn Nelson, who identified defendant as the person she saw running away from the scene. Ms. Nelson, who also lived at the Villa D’Ames apartment complex, testified that she heard a gunshot and saw defendant running away from the scene.

Defendant was arrested on the night of the murder at 1:00 a.m. He was advised of his rights, and he subsequently gave three separate statements. He initially denied any involvement or knowledge of the shooting but later admitted he shot the victim. Defendant explained that he shot the victim because she had robbed him of approximately $1,000-$1,400 one to two months earlier. Defendant then assisted the police in locating the gun used in the murder. The gun, a Taurus .357 magnum, was found and seized. Ballistic tests confirmed the gun matched the fragments removed from the victim.

DISCUSSION

Defendant argues the trial court erred in denying his motion to suppress his three statements because they were not knowingly, intelligently and voluntarily made. Defendant alleges he was coerced into making the statements because of the tactics used by the police. He contends he was deprived of food, cigarettes and sleep during the seven-hour period that he gave the three statements. He also points out that the police refused to let him leave after he gave his first statement | ¿denying any involvement or knowledge in the murder. Defendant maintains the continued interrogation that ultimately led to his confession was threatening and coercive in nature and, thus, he did not voluntarily waive his rights. He further suggests he was threatened with the charge of first-degree murder if he did not confess.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. LSA-R.S. 15:451; State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, 29, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998); State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866; State v. Smith, 95-734 (La.App. 5 Cir. 1/20/96), 668 So.2d 1260, 1267. A determination of voluntariness is made on a case-by-case basis, depending on the totality of the facts and circumstances of each situation. State v. Quest, supra at 780.

The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id. In reviewing the trial court’s ruling, the evidence presented at trial may be considered in addition to the evidence presented at the hearing on the motion to suppress. State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, 1182.

At the hearing on the motion to suppress the statements, Detective Donald Meunier testified that defendant gave three statements. According to Detective | ¡Meunier, defendant was first advised of his Miranda rights when he was arrested at his residence at approximately 1:00 a.m. on the night of the murder. He was again advised of his rights at 1:25 a.m. through a rights of arrestee form after he was transported to the Detective Bureau and before he gave any statement. Defendant initialed each right on the form and signed the bottom of the form twice indicating he had been read his rights and that he wished to waive his rights. At trial, Detective Meunier testified that defendant had completed tenth grade and understood his rights.

Defendant gave his first statement at 2:00 a.m. At the beginning of the statement, Detective Meunier reviewed each of defendant’s rights. Defendant indicated he understood his rights. Defendant also acknowledged that no promises or threats had been made to him and no pressure or coercion had been used against him. In his first statement, defendant admitted being at the Villa D’Ames apartments earlier that night between 8:00-8:30 p.m. but denied any involvement in the murder. He stated he and three friends were going to the movies for an 8:30 p.m. show when he heard a gunshot and saw a white lady lying in the parking lot. He explained he ran away from the area, got into his friend’s car and went to the movies. The statement ended at 2:14 a.m.

Defendant gave a second statement at 5:29 a.m. In the three hours between the first and second statement, Detective Meu-nier stated he continued to talk to defendant in the interview room. Detective Meunier confronted defendant with facts and evidence, including the eyewitness, that suggested defendant committed the murder. At the beginning of the second statement, Detective Meunier reminded defendant of his rights and that he retained his rights which defendant indicated he understood. Defendant then proceeded to give a statement wherein he admitted shooting the victim and explained why he did it. He also described | fithe murder weapon and indicated he gave it to a friend to hold after the shooting. The second statement lasted 11 minutes.

Two and a half hours later, at 7:56 a.m., defendant gave a third statement. The time between the second and third statement was spent trying to locate the murder weapon. At the beginning of the third statement, Detective Meunier again reminded defendant of his rights and that he retained his rights. Defendant’s third statement revolved around the murder weapon and outlined the search for the murder weapon and its ultimate location.

Defendant does not argue that he was not properly advised of his rights but rather alleges the seven-hour duration of the interrogation and the police tactics of depriving him of sleep, food and cigarettes throughout the interrogation were coercive. Thus, defendant maintains he did not give the statements voluntarily.

Detective Meunier testified that he made no promises to defendant and used no threats, force or coercion in obtaining any of the three statements. He explained defendant was given something to drink between his first and second statement but was not given anything to eat. Detective Meunier could not recall if defendant used the bathroom between the first and second statement but stated defendant would have been allowed to use the bathroom if he had asked.

Notably, defendant did not testify at the motion to suppress hearing. There is nothing in the record that indicates defendant ever requested sleep or food during the entire interrogation process and there is no evidence that defendant was sleepy at the time he gave his statements. Additionally, nothing in the statements by defendant suggests that he was in any way mistreated during the entire interrogation period. Defendant never asked for a lawyer and never indicated that he wanted to stop the interview.

In State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 923, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000), the Louisiana IvSupreme Court found no merit in defendant’s claim that his statements were involuntary. In Thibodeaux, defendant arrived at the detective bureau at 7:45 p.m. He was advised of his rights and executed a rights form at 8:10 p.m. He gave his first statement at 10:20 p.m. in which he denied any involvement in the victim’s death. Defendant gave a second statement at 2:45 a.m. after giving a polygraph in the interim which indicated he was being deceptive. He then gave a third statement at 4:21 a.m. in which he fully confessed to the murder. In the interim, additional interviews between the defendant and the detective took place. Defendant claimed he was psychologically coerced into making a full confession because the detectives supplied details of the crime in between statements and through the power of suggestion he “parroted” the details in his confession. The Louisiana Supreme Court noted there was nothing in the record that showed defendant’s will was overborne by the detectives.

The defendant in Thibodeaux was questioned over an eight-hour period and gave three statements. It was not until the last statement that defendant confessed to the crime. The Louisiana Supreme Court found nothing involuntary about defendant’s statements despite continued interviewing of defendant by detectives between the recorded statements.

Also, in State v. Blank, 01-564 (La.App. 5 Cir. 10/10/01), 804 So.2d 132, 136-138, this Court determined defendant’s confession were free and voluntary despite defendant’s claim that he was deprived of food, cigarettes and sleep during a lengthy 12]é-hour interrogation. This Court noted that defendant did not ask for any food during the entire interview and that he never indicated he was hungry. This Court further stated that the detectives did not promise to give defendant food if he confessed. It was noted that defendant did receive something to drink on several occasions.

| ^Regarding the issue of sleep deprivation in Blank, defendant indicated he was sleepy within the first three hours of the interview. At one point, defendant put his head on the table when the officers were out of the room. This Court found defendant did not request sleep but only stated he was tired from not doing anything and from working late. This Court further noted the detectives did not promise defendant they would allow him to sleep if he confessed. This Court concluded that the detectives did not deprive defendant of sleep. This Court reasoned defendant was advised of his rights but he did not invoke his right to remain silent and at no point did he state he wanted to stop the interview because he wanted sleep.

Likewise, in the present case, defendant never requested food or sleep. He was never promised food or sleep in exchange for his confession. Defendant was advised of his rights twice and was reminded of his rights before each statement. He did not invoke his right to remain silent or state, at any time, that he wished to stop the interview. Based on the totality of the circumstances, we fail to find that defendant’s confession was induced or coerced from lack of food or sleep.

In his appellate brief, defendant also claims he was deprived of cigarettes. There is nothing in the record to suggest defendant was a smoker or that he requested a smoking break and was denied same.

Defendant further maintains he was threatened with being charged with first-degree murder if he did not confess. The rights of arrestee form that defendant executed acknowledging he had been advised of his rights and that he wished to waive his rights indicated defendant was being charged with “murder” in violation of LSA-R.S. 14:30, which is the first degree statute. At the motion to suppress hearing, Detective Meunier was asked if defendant was told he might be charged with first degree murder. Detective Meunier explained that defendant was advised he was being charged with “murder.” He did not know if defendant was | ^specifically told he might be charged with first degree murder. Detective Meunier recalled some discussion about charging defendant with first degree murder but believed the discussion was between the detectives. Detective Meunier stated defendant was not told his penalties would be lighter if he gave a statement.

In State v. Hopkins, 35146 (La.App. 2 Cir. 11/2/01), 799 So.2d 1234, 1237 the Second Circuit found defendant’s statement to be free and voluntary despite possible discussions with defendant of the penalties for the different grades of homicide. Defendant claimed his confession was induced because he was told if he gave a statement manslaughter could be an option and that the death penalty was the consequence of a first degree murder conviction. The court noted the officers did not make any promises of a light or special sentence to induce defendant to give a statement. The record showed defendant was aware of the charges against him at the time of the statement. The court explained that “any discussion of the penalties for the different grades of homicide was superficial and was not done in a threatening manner. There were no promises that things would go better or that the charge would be reduced in exchange for a confession.” State v. Hopkins, 799 So.2d at 1237.

Likewise, defendant was aware he was being charged with murder. The gradation of murder does not appear to have been discussed. Detective Meunier testified that he never told defendant that his penalty would be lighter if he confessed. At the beginning of defendant’s first and second statements, he was specifically advised he was being charged with “murder.” Nothing in the record indicates defendant was induced to confess by a promise of a lighter charge or penalty.

Based on the totality of the circumstances, we find defendant’s statements were free and voluntary.

This assignment of error is without merit.

|inThe record was also 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 errors were discovered which require corrective action by this Court.

DECREE

Accordingly, for the reasons assigned herein, the conviction and sentence of defendant, Prince J. Franklin, are hereby affirmed.

AFFIRMED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: LWALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Glenn BROOKS.
    No. 03-KA-391.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.

      Harry J. Morel, District Attorney, Kim McElwee, Assistant District Attorney, Hahnville, LA, Counsel for the State of Louisiana, Plaintiff/Appellee.
    Jane L. Beebe, Gretna, LA, Counsel for Glenn Brooks, Defendant/Appellant.
    Glenn Brooks, Concordia Correctional Facility, Ferriday, LA, In Proper Person, Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD and EMILE R. ST. PIERRE, Pro Tempore.
   LWALTER J. ROTHSCHILD, Judge.

On February 9, 2001, the St. Charles Parish District Attorney filed a bill of information charging the defendant, Glenn Brooks, with one count of aggravated battery, in violation of LSA-R.S. 14:34, and one count of possession of a firearm by a convicted felon, in violation of LSA-R.S. 14:95.1. The defendant was arraigned on February 12, 2001, and pled not guilty to both charges.

On May 16, 2001, the two charges against the defendant were severed for trial, and a jury trial was held that day only as to Count 2, the firearm charge. At the conclusion of the trial, the 12-person jury returned a verdict of guilty as charged. On May 25, 2001, the defendant filed a Motion for Post Verdict Judgment of Acquittal and a Motion for New Trial. The trial court denied both motions on June 19, 2001.

On July 17, 2001, the court sentenced the defendant to 15 years at hard labor without benefit of parole, probation or suspension of sentence. The defendant filed a Motion to Reconsider Sentence, which was denied by the trial judge on August 14, 2001. Thereafter, he filed a Motion for Appeal, which was granted on September 18, 2001.

13This Court dismissed the defendant’s appeal as untimely filed, and remanded the case to the district court to allow the defendant to seek reinstatement of his appeal rights by way of an application for post-conviction relief. State v. Brooks, 01-1316 (La.App. 5 Cir. 4/10/02), 817 So.2d 222. On May 3, 2002, the defendant filed a Uniform Application for Post-Conviction Relief in the district court, seeking an out-of-time appeal. On August 8, 2002, the judge signed an Order reinstating the defendant’s appeal rights.

FACTS

Robert Beason testified that he has been acquainted with the defendant, Glenn Brooks, for a long time. On December 16, 2000, Beason and the defendant engaged in two separate verbal altercations. That night, Beason went to Royal’s Grocery and Bar in St. Rose. While he was playing video poker, someone told him that the defendant wanted to see him outside. Beason exited the establishment and saw the defendant with several other people. The defendant told Beason, “I heard you had got a gun.” Beason responded that he did not have a gun. The defendant, who was himself holding a gun, said, “Consider this a Christmas gift.” Beason turned to run and was shot from behind. He sustained an injury to his groin.

Although Beason did not see the shot fired, he believed the defendant was the person who wounded him. Beason did not see any other individual at the scene in possession of a gun, and he was the only person with whom Beason had quarreled. Beason described the weapon as a .45 caliber handgun.

Deputy Juan Pinillos of the St. Charles Parish Sheriffs Office testified that he was dispatched to Royal’s at 11:12 p.m. in response to a reported shooting. When Pi-nillos arrived at the scene two minutes later, Beason was lying on the floor inside the store. He was alert, but appeared to be in extreme pain. Beason told the officer, “Glenn shot me.” Beason was transported from the scene to Kenner Regional Medical Center.

| ¿Detective Walter Joseph Fonseca reported to the hospital, where he found Beason lying on a gurney in the emergency room. Fonseca questioned him about the shooting incident, and Beason answered coherently. Beason said that he had an argument with the defendant earlier, and that the defendant had shot him. Beason told him Andrew Armstrong and someone called “Little Smokey” were at the scene, but the officer could not locate either of those individuals. Based on the information Beason gave him, Fonseca obtained a warrant for the defendant’s arrest for second degree battery.

At trial, the parties stipulated that the defendant had a prior felony conviction for unauthorized entry of an inhabited dwelling. The court admitted documentation of the defendant’s May 5, 2000 guilty plea in that case, which fell within the ten-year cleansing period prescribed by LSA-R.S. 14:95.1.

DISCUSSION

In his first assignment of error, the defendant argues that his 15-year sentence, the maximum punishment allowed under LSA-R.S. 14:95.1, is unconstitutionally excessive, considering that he was offered a six-year sentence prior to trial as part of a plea agreement, and that he is not the worst type of offender, for whom maximum sentences are generally reserved. The defendant preserved these arguments for appeal by raising them in his Motion to Reconsider Sentence in the district court. LSA-C.Cr.P. art. 881.1.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 789, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), 5writ denied, 577 So.2d 1009 (La.1991). Even a sentence which falls within statutory limits may be excessive under certain circumstances. State v. Short, 00-866 (La.App. 5 Cir. 10/18/00), 769 So.2d 823, 831, writ denied, 00-3271 (La.8/24/01), 795 So.2d 336.

In reviewing a sentence for ex-eessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the broad discretion afforded the trial judge in determining and imposing sentence. State v. Puckett, 02-997 (La.App. 5 Cir. 1/28/03), 839 So.2d 226, 234. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id.

The defendant complains that the trial court failed to provide any explanation as to why it imposed the maximum sentence allowed by law. However, the record reveals that the trial judge did, in fact, give an explanation for his decision. In his reasons for sentencing, the trial judge noted that the defendant was on probation for another offense at the time of the instant offense. Among the aggravating factors the judge noted during sentencing were the defendant’s deliberate cruelty toward Mr. Beason, the significant injuries he inflicted, and the fact that he put the safety of many people in jeopardy by firing a weapon in front of a store/bar. The judge did not find any mitigating circumstances, and he felt that a lesser sentence would deprecate the seriousness of the offense. When the judge asked the defense whether it wished to submit mitigating factors for his consideration, defense counsel simply responded, “We’re ready for sentencing, Judge.”

The defendant argues that Mr. Beason was not a reliable witness, and that the court should have taken that into account in arriving at a sentence. However, there is no authority for the defendant’s assertion that the credibility of witnesses is La factor the court must consider in imposing a sentence. Moreover, the court was not, as the defendant claims, required to consider the State’s pre-trial offer of a plea bargain, which included a six-year sentence. In State v. Smith, 407 So.2d 652, 657 (La.1981), the Louisiana Supreme Court stated, “the fact that defendant did not accept a plea bargain is not a factor listed in La.C.Cr.P. art. 894.1, nor is the judge’s opinion of the witness’ credibility. These are not facts that can form part of the basis for a sentence under the statute.”

Considering the record before us, the jurisprudence, the serious and violent nature of the offense for which the defendant was convicted, and the aggravating factors articulated by the trial judge during the sentencing hearing, we find that the 15-year sentence imposed by the trial judge is not excessive. Accordingly, the trial court did not abuse its discretion in imposing the maximum sentence, and this assignment of error is without merit.

In his second assignment of error, the defendant asserts that “[t]he evidence of appellant[sic] predicate conviction was legally insufficient.” By this assignment, the defendant contends that the state failed to present sufficient evidence to meet its burden of proving the elements of the charged offense. The constitutional standard of review for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The defendant was convicted of violating LSA-R.S. 14:95.1, which makes it unlawful for any person who has been convicted of certain felonies, such as unauthorized entry of an inhabited dwelling, to possess a firearm. The elements necessary to sustain a conviction under LSA-R.S. 14:95.1 are (1) the status of defendant as a convicted felon; (2) possession by the defendant; and (3) the ^instrumentality possessed was a firearm. State v. Mose, 412 So.2d 584, 585 (La.1982); State v. Knight, 99-138 (La.App. 5 Cir. 6/30/99), 738 So.2d 1179, 1181. General intent is required to commit the crime. State v. Wilder, 02-229 (La.App. 5 Cir. 6/26/02), 822 So.2d 844, 848. The State must also prove that ten years has not elapsed since the date of completion of the punishment for the prior felony conviction. State v. Knight, supra at 1181. It is not necessary to prove that a defendant fired a weapon in order to obtain a conviction for this crime. State v. Washington, 30,108 (La.App. 2 Cir. 12/10/97), 705 So.2d 254, 259, writ denied, 98-0148 (La.5/8/98), 718 So.2d 430.

The first element of the crime was met when the parties stipulated that the defendant had a prior enumerated felony conviction for unauthorized entry of an inhabited dwelling, and this conviction fell within the ten-year statutory limitation. The second and third elements were satisfied through the testimony of Robert Beason, who was the sole witness to testify that he saw the defendant with a gun. The thrust of the defendant’s argument is that, the jury should not have believed Beason.

The defendant asserts that the evidence against him was insufficient because Bea-son’s testimony was not credible or corroborated by other witnesses and no gun was recovered at the scene. He notes that the defendant stated after the shooting and at the preliminary hearing that the defendant shot him, but at trial he said he did not know who shot him because he was shot from behind.

Beason admitted he told the police the night of the shooting that the defendant shot him; however, at trial, he stated that he was hysterical and did not know who shot him. He testified that he named the defendant because he and the defendant had a verbal altercation and the defendant was the only person he saw with a gun. After testifying at the preliminary hearing, he began to question whether he could actually tell that the defendant shot him when his back was | «turned away at the time. He denied lying at the preliminary hearing and explained it was “a misinterpretation.”

The defendant further argues that Bea-son did not testify that the defendant fired a gun. However, as stated above, it is not necessary for the defendant to fire a weapon in order to be convicted of the crime of possession of a firearm by a convicted felon. Detective Fonseca testified that the night of the incident, Mr. Beason was coherent and he told the officers that he saw the defendant with a gun that evening. Mr. Beason was positive that the defendant had a gun.

The defendant also argues that the jury should have questioned Mr. Beason’s credibility since he had prior convictions and the state had to issue a warrant for his arrest in order to secure his participation at trial. Mr. Beason testified that he was arrested in order to secure his appearance at trial, but he would have appeared anyway.

In reaching the guilty verdict, the jury obviously credited Mr. Beason’s testimony. In State v. Deruise, 98-0541 (La.4/8/01), 802 So.2d 1224, 1243, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), the Louisiana Supreme Court reiterated that “[t]he trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness.” 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.

It was for the jury to weigh the evidence and determine whether the state met its burden of proving that the defendant possessed a firearm. In returning its verdict, the jury was free to believe Mr. Beason’s eyewitness testimony that the defendant pulled out a gun. Shortly thereafter, when Mr. Beason’s back was turned, he was shot by a firearm. The medical records support his testimony that |9he sustained a gunshot wound to the buttocks. Although there were inconsistencies in Mr. Beason’s testimony regarding certain details, he consistently stated that the defendant had a gun. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual findings. State v. Parent, 01-50 (La.App. 5 Cir. 5/30/01), 788 So.2d 685, 689.

Based on the foregoing, and viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant committed the charged offense. Accordingly, this assignment of error is without merit.

In his third assignment of error, the defendant contends that he did not receive effective assistance of counsel because his trial counsel failed to subpoena witnesses, including two material witnesses: Andrew Armstrong and “Little Smoky” who were present at the time of the offense. He contends these two witnesses could have contradicted Beason’s testimony, and that defense counsel proceeded without a plausible defense.

During cross-examination, Beason testified that he told Officer Walter Joseph Fonseca, Jr. that “Smoky” and “Andrew5’ were at the scene of the shooting. Defense counsel referred to “Andrew” as “Andrew Armstrong.” Afterwards, defense counsel asked Officer Fonseca about his attempts to locate these two individuals. He testified that he tried several times to locate Armstrong but was unable to do so. He was unable to identify or locate “Little Smoky.” No one he spoke to would or could give him information.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 18 of the Louisiana Constitution of 1974. When a defendant raises a claim of ineffective assistance of counsel, that claim is evaluated under the two-prong test established | inby Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show (1) that defense counsel’s performance was deficient, and (2) that the deficiency prejudiced the defendant. To show prejudice under this test, the defendant must demonstrate that the outcome of the trial would have been different, but for counsel’s unprofessional conduct. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct at 2064.

A claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to afford the parties an adequate record for review. State v. Truitt, 500 So.2d 355, 359 (La.1987); State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, unit denied, 98-1032 (La.9/18/98), 724 So.2d 753. Only when the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal, may it be addressed in the interest of judicial economy. McIntyre, 708 So.2d at 1075. In the present case, the record is inadequate to fully address defendant’s claim in this regard. There is no indication whether these two witnesses could be located and identified by defense counsel and if they would have testified favorably for defendant. Therefore, this matter should be relegated to an application for post-conviction relief.

The record was reviewed for errors patent, pursuant to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). This review revealed no errors that require corrective action by this Court.

Although the defendant specifically complains that the trial court failed to properly notify him of the prescriptive period for filing an application for post-conviction relief as required by LSA-C.Cr.P. art. 930.8, the transcript shows that the trial court did properly inform the defendant of said prescriptive period. Since there is no error, no corrective action is necessary.

\UDECREE

For the reasons set forth above, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . The State later dismissed Count 1, the aggravated battery charge.

      . See State v. Badeaux, 01-406 (La.App. 5 Cir. 9/25/01), 798 So.2d 234, 239, writ denied, 01-2965 (La.10/14/02), 827 So.2d 414, in which this Court held that maximum sentences are generally reserved for cases involving the most serious violations of the offense charged, and the worst type of offender.


author: 1,EMILE R. ST. PIERRE, Judge Pro Tem.

text:
    STATE of Louisiana v. Earl BRADLEY.
    No. 03-KA-384.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 16, 2003.

      Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, Counsel for Defendant-Appellant.
    Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudeaux, Assistant District Attorneys, Gretna, LA, Counsel for Plaintiff-Appellee.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD, and EMILE R. ST. PIERRE, Pro Tempore.
   1,EMILE R. ST. PIERRE, Judge Pro Tem.

On October 28, 1999, a Jefferson Parish Grand Jury returned an indictment charging defendant, Earl Bradley, along with co-defendant, Albert T. Russell, with the second degree murder of Barton Sanford in violation of LSA-R.S. 14:30.1. Bradley pled not guilty and subsequently filed a motion to suppress evidence, which was heard and denied by the trial judge. On August 21, 2000, Bradley proceeded to trial which resulted in a mistrial. On June 11, 2002, a second jury trial was held and a twelve-person jury found Bradley guilty as charged. On July 18, 2002, Bradley was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Bradley now appeals.

FACTS

On August 1, 1999, the body of Barton Sanford was found beneath a trailer located at 7501/é Fourth Street near the Happy Hour Saloon in Marrerro. The cause of death was a bullet wound to the chest. Detective Donald Meunier of the Jefferson Parish Sheriffs Office investigated and eventually developed Bradley as a possible suspect. On August 7, 1999, Detective Meunier interviewed Bradley and obtained several statements.

|3In the statements, Bradley indicated that he had attended a party at the Happy Hour Saloon on Friday, July 80, 1999 but denied knowing the victim. However, when confronted with a surveillance video tape taken outside of the Happy Hour Saloon on July 30, 1999 showing him with the victim, Bradley recanted his prior statements. Bradley told Detective Meu-nier that the victim wanted to purchase crack cocaine and that he had arranged for the victim to make the purchase from an individual named Jason Rivet. However, before the drug deal was completed, Bradley stopped the drug transaction and pulled the victim away because “something looked like it was going down.” Bradley subsequently returned to the bar where he remained for approximately one hour before going to the Budget Motel where he remained for the night.

Detective Meunier also interviewed an eyewitness, Amy Larck, who identified Bradley as the shooter. At trial, Lark testified that at the time of the shooting she was a drug addict who supported her habit by prostitution. Larck knew both Bradley and Russell and had been at Russell’s house on the evening of July 30, 1999. While there, she overheard Bradley ask Russell if he had a gun to which Russell responded, “I got that for you.”

Later that evening, Larck was outside the Happy Hour Saloon where she smoked crack for most of the night. Later that night, while inside the Happy Hour Saloon, Bradley informed Larck that he had a “trick” for her, whom Larck identified as the victim. Larck and Bradley left the bar and walked around the block to give the victim time to come outside. Larck then walked into an alley behind the Happy Hour Saloon where she met the victim. Larck agreed to perform oral sex upon the victim and the victim displayed approximately sixty dollars. At that moment, Bradley and Russell walked around the corner. Bradley had a gun and was screaming at the victim. Larck began backing out of the alley and heard a gunshot. She then ran from the scene and ended up at the Budget Motel with LBradley. After five to ten minutes, Larck left the motel and received a ride to the levee from a stranger who later raped her. She later reported the rape to police but did not mention the murder at that time. Not until police picked her up in connection with the homicide investigation did she mention anything to police about the murder.

After Larck’s testimony, the State rested and the defense called its first witness, Karen Breaux. Breaux testified that on July 30, 1999 she was at Russell’s house until midnight and did not recall either Larck or Bradley being at the home that day or evening. At around midnight that evening, she went to the Happy Hour Saloon where she observed the victim and Bradley engaged in an argument outside. The victim was accusing Bradley of having ripped him off which Bradley denied. After a brief moment, Breaux left the area fearing police would arrive shortly.

The defense also called Tammy Disher who testified that, on the evening of July 30, 1999, she saw the victim fighting with an individual named Jason Rivet, who was carrying a gun. She did not see an argument between Bradley and the victim. However, Disher testified that while she was incarcerated with Larck prior to trial, Lark had told her that she was involved in the killing of the victim. Larck told her that she was supposed to “trick” the victim and that Bradley was supposed to rob him but that something went wrong and Bradley ended up shooting the victim.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the evidence was insufficient to support his conviction.

| fiThe standard for appellate review of the sufficiency of evidence is “whether, after viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. State v. Joseph, 01-1211 (La.App. 5 Cir. 4/10/02), 817 So.2d 174. In applying this standard, the reviewing court will not assess the credibility of witnesses, nor re-weigh evidence. State v. Rosiere, 488 So.2d 965, 968 (La.1986); State v. Ellwood, 00-1232 (La.App. 5 Cir. 2/28/01), 783 So.2d 423, 427. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Rivers, 01-1251 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, 219, writ denied, 02-1156 (La.11/22/02), 829 So.2d 1035. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual finding. Id.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). When circumstantial evidence is used to prove a case, the trial judge must instruct the jury that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438.

|6To prove second degree murder, the state must show the killing of a human being and that the defendant had the specific intent to kill or inflict great bodily harm. LSA-R.S. 14:30.1(A). Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the identity of the perpetrator. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69. Where the key issue is identification the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

Bradley claims Larck’s testimony was not credible due to inducements made for it by the State and several discrepancies in her testimony. First, defendant points to Detective Meunier’s interview with Larck. At trial, Larck testified that, during her interview, she was on crack cocaine and lied to investigators throughout her eleven-hour interview. It was not until Detective Thurman, one of the investigators in the ease, informed her that she could be charged with conspiracy to commit murder, did Larck implicate Bradley.

While the detective’s statement to Larck prompted her to implicate Bradley, it does not appear to have undermined her credibility. Larck testified that the reason she initially lied to investigators was because she was afraid of Bradley and Russell and did not want to get involved in the investigation but testified that her statement implicating Bradley was the truth. This was consistent with her statement to the defense’s witness, Tammy Disher. Disher testified that while she was incarcerated with Larck, Larck informed her that Bradley had shot the victim. |7The fact that Larck told both Detective Thurman and Disher that Bradley shot the victim alleviates concerns that Detective Thurman’s statement pressured Larck into lying about the perpetrators of the murder.

Additionally, Bradley contends Larck’s testimony was further discredited by the deal she received in exchange for her testimony. Bradley notes that Larck had previously pled guilty to several felonies for which she received concurrent five-year sentences on each of the charges and was not billed as a habitual offender. However, Larck denied the existence of any plea agreement and further testified that she had been sentenced prior to testifying.

Even if a deal had been made, a conviction may be based on testimony of someone making a plea bargain with the government, provided that the testimony is not incredible or otherwise insubstantial on its face. United States v. Osum, 943 F.2d 1394, 1405 (5th Cir.1991); State v. Neal, 00-674 (La.6/29/01), 796 So.2d 649, 659, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed. 231 (2002). In the instant case, Larck’s testimony was not incredible or insubstantial and, therefore, the existence of a deal or a lighter sentence than she would have received had she been billed as multiple offender did not undermine the reliability of her testimony.

Bradley also cites numerous handwritten letters sent by Larck to various prosecutors that had worked on the case at one time or another. In some of the letters, Larck claimed that her memory of events surrounding the murder was getting “fuzzy” and that unless she was released from prison she would not testify at trial. Those letters were followed by letters apologizing for previous letters and indicating her willingness to testify, as well as additional requests that she be released from prison. Bradley contends that the letters show that Larck would have said or done anything to get out of prison thereby lessening the credibility of her testimony.

IsHowever, as referenced above, Larck had been sentenced and had begun serving her sentence prior to trial. There was no evidence that the State promised Larck anything for her testimony. Therefore, we find that the content of the letters did not lessen Larck’s credibility.

Lastly, Bradley alleges numerous inconsistencies in Larck’s testimony, further raising the issue of her credibility. While there were numerous inconsistencies in Larck’s testimony, the inconsistencies concerned Larck’s activities prior to and after the shooting. These were not determinative of any element of the offense. Larck’s testimony was not internally inconsistent with any other evidence. Although she gave conflicting statements at times, she consistently testified as to the location of the murder and that Bradley shot the victim. The jury in the instant case heard Larck’s testimony and her reasons for initially lying to investigating officers. The jury chose to accept her testimony in light of circumstantial evidence that Bradley initially lied to police about knowing the victim and that he had been engaged in an argument with the victim on the night of the murder.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Kinsel, 00-1610 (La.App. 5 Cir. 3/28/01), 783 So.2d 532, 537, writ denied, 01-1230 (La.3/28/02), 812 So.2d 641. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Marcantel, 00-1629 (La.4/30/02), 815 So.2d 50, 56; State ex. rel Graffagnino v. King, 436 So.2d 559, 563 (La.1983).

Considering the above and viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that the defendant committed second degree murder.

This assignment of error is without merit.

loASSIGNMENT OF ERROR NUMBER TWO

Bradley contends that his statements should have been suppressed because they were not legally obtained. Bradley argues that the length of the interview, the failure of detectives to advise him of his constitutional rights prior to each of his statements, and the fact that he was confronted with the results of a polygraph examination contributed to a coercive atmosphere, thereby rendering his statements involuntary.

At the hearing on the motion to suppress, Detective Meunier testified that Bradley, who was in jail on unrelated charges, was brought to the Detective Bureau for questioning in reference to the murder. The detective informed Bradley of the nature of the investigation and asked if he would talk to him concerning some aspects of the case. Detective Meu-nier subsequently advised Bradley of his constitutional rights and also presented him with a “RIGHTS OF ARRESTEE OR SUSPECTS” and “WAIVER OF RIGHTS” form, which Bradley signed and initialed in the detective’s presence.

According to Detective Meunier and the waiver of rights form, Bradley was advised of his rights at 12:45 p.m. on August 2, 1999. Bradley gave his first statement to Detective Meunier at 1:21 p.m., a second statement was given at 2:05 p.m., a third statement was given at 5:32 p.m., a fourth statement was given at 6:45 p.m., and a final statement was given at 7:37 p.m. Detective Meunier testified that he did not advise Bradley of his constitutional rights prior to each of those statements but did reiterate to Bradley that he had previously been advised of his rights.

The testimony also established that in the time between Bradley’s second and third statements, Detective Meunier showed Bradley a surveillance videotape taken outside the Happy Hour Saloon which dearly showed Bradley with the victim outside of the bar, contradicting Bradley’s previous statements that he did Imnot know the victim. Additionally, it was revealed that, at some point during the interrogation, Bradley was subjected to a polygraph examination. Lieutenant Stacy Phillips, a polygraph examiner with the Jefferson Parish Sheriffs Office, testified that he performed the polygraph examination. Lieutenant Phillips did not advise Bradley of his constitutional rights prior to the examination but he did have him sign a waiver indicating that he was taking the polygraph examination voluntarily. Phillips testified that, after the test, he informed Bradley that the examination results showed extreme deception. He then informed Bradley the he may want to consider telling the investigators the truth concerning what occurred.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. LSA-R.S. 15:451; State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, 29, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998).

A determination of voluntariness is made on a case-by-case basis, depending on the facts and circumstances of each situation. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless supported by the evidence. Id.

In the instant case, the testimony and evidence reflect beyond a reasonable doubt that Bradley was advised of his constitutional rights before the first of the five statements was taken. The “RIGHTS OF ARRESTEE OR SUSPECTS” form indicated Bradley had attended one year of college and that Bradley was advised of 1 nhis right to remain silent, that anything he said could and would be used against him, that he had the right to an attorney and if he could not afford an attorney that one would be appointed for him, and that he could stop answering questions at any time. Bradley initialed next to each of those rights and signed the form indicating that he had been advised of those rights. Bradley additionally signed a “WAIVER OF RIGHTS,” which was included at the bottom of the “RIGHTS OF ARRESTEE OR SUSPECTS” form.

Although Bradley was advised of his Miranda/constitutional rights, he contends that the length of the interview and the fact that he was not free to leave, because he was in jail on an unrelated charge, created a coercive atmosphere. The record reflects that Bradley was questioned over the course of seven hours. However, the fact that questioning extended for six or seven hours is not per se unconstitutionally coercive. Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.1993), cert. denied, 510 U.S. 822, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993). In the present case, the length of the interview was primarily attributable to the fact that Bradley initially denied knowing the victim when it was apparent from the surveillance video that he did. Here, the length of the interrogation was not attributable to coercion, but rather the length of the interview was precipitated by Bradley’s deception in his initial statements. See, State v. Thomas, 30,490 (La.App. 2 Cir. 4/8/98), 711 So.2d 808, 812, writ denied, 99-0381 (La.7/2/99), 747 So.2d 8 (a case in which the length of the interrogation was not attributable to coercion, but stemmed instead from defendant’s slowly increasing willingness to talk).

Bradley also argues that the investigating officers advised him of his rights only once during the entire seven-hour interrogation and failed to advise him of his rights prior to each statement. Jurisprudence, however, has not mandated such multiple warnings. State v. Brown, 445 So.2d 456, 462, (La.App. 5 Cir.1984). As noted by the Louisiana Supreme Court in State v. Harvill, 403 So.2d 706, 709 12(La.l981), “[a] requirement that the Miranda warnings be repeated before each separate interrogation period would quickly degenerate into a formalistic ritual.” State v. Brown, supra at 462. As such, the failure to reiterate defendant’s Miranda warnings did not create a coercive environment rendering defendant’s statements involuntary.

Additionally, Bradley argues that being confronted with the results of the polygraph examination and Lieutenant Phillip’s statement that he may want to tell the truth added to the coercive atmosphere. Suggestions that a defendant would be better off to cooperate are not “promises or inducements designed to extract a confession.” State v. Lavalais, 95-0320 (La.11/25/96), 685 So.2d 1048, 1053, cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997); State v. Watts, 98-1073 (La.App. 5 Cir. 5/19/99), 735 So.2d 866, 870. Additionally, a confession is not rendered inadmissible because officers “exhort or adjure” an accused to tell the truth, provided the exhortation is not accompanied by an inducement in the nature of a threat or which implies a promise of reward. State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8, 31, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155; State v. Watts, supra at 870.

There is no indication in the record that Lieutenant Phillips made any threats or promises to Bradley in order to obtain a statement. Furthermore, it does not appear that it was improper to inform Bradley that his polygraph test results indicated deception. See, Jenner v. Smith, supra at 334 (case in which the United States Eighth Circuit Court of Appeals held it was not improperly coercive to inform a defendant that her polygraph results indicated deception). Bradley had previously waived his constitutional right to remain silent and right to an attorney and signed a waiver indicating that he was voluntarily submitting to the polygraph examination. There was no evidence that Lieutenant Phillips misinformed Bradley |13of the examination results or misled him into believing the test results could be used in court.

Considering the above, the record establishes that Bradley knowingly and voluntarily waived his constitutional rights and at no point invoked his right to cease talking to investigators. Therefore, we find that the trial judge did not err in denying Bradley’s motion to suppress.

This assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

Accordingly, for the reasons herein, the conviction and sentence of defendant, Earl Bradley, are affirmed.

AFFIRMED.

      . In the present case, defendant failed to file a post-verdict judgment of acquittal or a written motion for new trial. However, the courts have long recognized a defendant's right to appellate review for sufficiency of the evidence, even in the absence of a written motion for new trial or for post-verdict judgment of acquittal. State v. Washington, 421 So.2d 887, 889 (La.1982); State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 760.


author:
|,TERRI F. LOVE, Judge.
      hBYRNES, C.J.,

text:
    Daniel CHEATHAM v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and Pamela J. Linders.
    No. 2002-CA-2420.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.
    Darla L. D’Amico and Frank J. D’Ami-co, Frank J. D’Amico, APLC, New Orleans, LA, for Plaintiff/Appellee.

      Glenn W. Culp, Frederick A. Miller & Associates, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   |,TERRI F. LOVE, Judge.

Plaintiff/appellee, Daniel Cheatham (“Cheatham”), and defendant/appellant, Pamela Linders (“Linders”), were involved in a vehicular accident. After a judge trial on the merits, limited to a determination of liability, the trial court found Linders 100% at fault. Linders has appealed that judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Linders and Cheatham were the drivers of two automobiles that collided on May 27, 1995, at the intersection of Opelousas and Atlantic Streets in Orleans Parish. Cheatham was traveling west on Opelou-sas Street and Linders was traveling east on Opelousas Street. The collision occurred while Cheatham was turning left onto Atlantic Street.

Cheatham filed suit against Linders and her insurer, State Farm Mutual Automobile Association. A bifurcated bench trial on the issue of liability was held on August 20,2002. After hearing testimony from the parties and from two eyewitnesses, the trial court, for reasons stated on the record, found Linders 100% bat fault in the accident. A new trial was not requested, and this appeal timely followed.

DISCUSSION

Ms. Linders argues that the trial court erred in finding her at fault in the accident because the plaintiff, as a left-turning motorist, is presumed liable for the accident, and he failed to carry his burden of proof to show that he was not at fault.

Ms. Linders states that the two eyewitnesses called to testify on behalf of the plaintiff, as well as the plaintiff himself, contradicted their prior statements and contradicted each other on basic issues important to the determination of liability. Ms. Linders further contends that their testimony is also contradicted by the only objective evidence offered at trial, pictures presented by the plaintiff of the damage to the two vehicles. Thus the main thrust of Ms. Linders’ appeal is that this is one of those cases “[wjhere documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, [and] the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Rosell v. ESCO, 549 So.2d 840 (La.1989).

Subsidiary to this manifest error argument is Ms. Linders’ contention that the plaintiff failed to overcome the presumption that as the left turning motorist he was responsible for the accident. Gibson v. Fisher, 401 So.2d 565 (La.App. 3 Cir.1981). The burden rests heavily on the left-turning motorist to explain how the | ^accident occurred and to show that he is free of negligence. Hughes v. Scottsdale Ins. Co., 35,043 (La.App. 2 Cir. 8/22/01), 793 So.2d 537; Severson v. St. Catherine of Sienna Catholic Church, 97-1026 (La.App.5 Cir. 2/11/98, 707 So.2d 1026).

In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), our Supreme Court announced a two-part test for the reversal of a fact finder’s determination: 1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) The appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, supra. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Canter v. Koehring, 283 So.2d 716 (La.1973).

|4The plaintiff began the trial with the cross-examination of the defendant, Ms. Linders. She admitted to having no independent recollection of the route she was taking on the day of the accident. At the time of her deposition she had no independent recollection of how fast she was driving, but at the trial she testified that: “I believe it was around 25 to 30 miles [per hour].” Upon further questioning, she explained she usually drives at this pace, and she assumed that this was the approximate rate of speed that she was traveling at the time of the accident. She saw the plaintiffs vehicle for the first time only a few seconds prior to the impact.

She testified that she was not driving in the parking lane and that the front end of Mr. Cheatham’s car collided with the left front side of her car. The impact pushed her into a right turn and she did not see whether Mr. Cheatham’s was spun around or not. She explained that she neither blew her horn nor took any evasive action because there was no time to do so. She was not aware of Stanley Vincent’s presence. She was also unaware of anyone fitting Ms. Cosse’s description being present at the scene. She admitted to taking anti-depressant medications, which cause drowsiness and dizziness, but she attributed her momentary dizziness after the accident to hitting her head on the side window at the time of impact.

Ms. Linders testified that she only took her medication at night and that no restrictions were placed on her while taking the medication. She further testified that she continued to work as a registered nurse while on the medication.

|RThe first of two purported eyewitnesses called by the plaintiff was Mr. Stanley Vincent. He testified that he was coming from a “washerette” at the time of the accident with Ms. Angel Cosse as a passenger in his truck.

Mr. Stanley testified that Ms. Linders ran the stop sign, and was traveling in the parking lane/shoulder of the road at 45 to 50 miles an hour. He testified that the plaintiff had stopped and yielded first to oncoming traffic and when he had almost completed his turn, his vehicle was struck by Ms. Linders. When Ms. Linders vehicle was struck she veered to the right.

Mr. Stanley said that when the police officer arrived he told the officer he was a witness, but the police officer responded by telling him not to interfere with a police investigation, at which point Mr. Stanley walked off. He further testified to overhearing Ms. Linders admit to the plaintiff that she was at fault and that her insurance company would pay for the damage to plaintiffs automobile.

The plaintiffs second witness, Ms. Angel Cosse, testified on direct that she was coming from a washeteria at the time of the accident, and that most of the time she went to the washeteria she went with Mr. Stanley Vincent the plaintiffs first witness. She testified that Ms. Linders came from the passenger side of the vehicle in which Ms. Cosse was riding as a passenger in the front seat. She further testified that Ms. Linders was driving in the parking lane, “At least about 55, something like that,” on Opelousas Street, which she thought had a posted speed limit of 20 or 25 miles per hour.

The plaintiff, Daniel Cheatham, described the accident on direct examination as follows:

Once I got to Atlantic Street and Opelousas, I made a left, which I was going to go south. I got in the intersection. I stopped and then I yield. I looked to my right and I saw a truck, a blue truck, | (¡which was like two blocks down which gave me a lot of time. The truck was coming slowly. I was crossing over slowly. So, as I got over Atlantic side, that’s when I looked to my right and I was hit, severely hit and it sped my car.

The plaintiff explained that when he looked he saw Mr. Vincent’s truck at Elmi-ra Street but did not see the defendant’s car. He estimated Mr. Vincent’s speed to have been, “About 10 to 15 miles per hour.” He further testified that he was executing his left turn at, “About ten miles an hour, just going across.” He then estimated Ms. Linders speed to have been about 60 miles per hour.

The record does reveal inconsistencies and conflicts in the testimony of Cheatham and the two eyewitnesses. The trial court acknowledged the inconsistencies, but resolved all doubt in favor of Cheatham after reviewing the evidence presented. The trial judge stated on the record:

This is one of those cases where I can almost understand why it couldn’t settle. I have witnesses on both sides that can’t remember or don’t know what happened or changed their stories. After hearing the testimony in this case and reviewing the evidence in the difficult situation this is, the Court is going to find in favor of the plaintiff, Daniel Cheatham, and against the defendant, State Farm and Pamela Linders. The Court finds Ms. Linders 100% at fault in causing the accident.

Our jurisprudence is well established that a motorist attempting to make a left turn onto a favored thoroughfare is required to ascertain that the way is clear and that the turn can be made safely without endangering or being endangered by overcoming or oncoming traffic. McIntyre v. Government Emp. Ins. Co., 413 So.2d 174 (La.App. 4 Cir. 3/9/82).

We conclude that the trial judge did not err in finding that Cheatham yielded and proceeded to make the left turn after ascertaining that the way was clear and that the turn could be made safely. The testimony of Cheatham and the two 17eyewitnesses was consistent on that issue. The two eyewitnesses also consistently testified that Linders pulled out onto Opelousas Street, almost hitting their vehicle then proceeded at an excessive rate of speed, colliding with Cheatham. This court cannot say that the trial judge was unreasonable in accepting Cheatham’s version of the accident. After a thorough review of the record, we find that the ruling of the trial court was reasonable. Accordingly, we affirm.

AFFIRMED.

BYRNES, C.J., dissents with reasons.

hBYRNES, C.J.,

dissents with reasons.

This is one of those cases “[w]here documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, [and] the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Rosell v. ESCO, 549 So.2d 840 (La.1989).

Additionally, the trial court erred in assigning the entire fault to the defendant-appellant because the plaintiff, as a left-turning motorist, is presumed liable for the accident, and he failed to carry his burden of proof to show that he was not at fault.

Plaintiff failed to carry his burden his burden of proof because the two eyewitnesses called to testify on behalf of the plaintiff, as well as the plaintiff himself, contradicted their prior statements and contradicted each other on basic issues important to the determination of credibility and liability. Their testimony is also contradicted by the only objective evidence offered at trial, pictures presented by the plaintiff of the damage to the two vehicles.

The plaintiff failed to overcome the presumption that as the left turning motorist he was responsible for the accident. Gibson v. Fisher, 401 So.2d 565 2(La.App. 3 Cir.1981). The burden rests heavily on the left-turning motorist to explain how the accident occurred and to show that he is free of negligence. Hughes v. Scottsdale Ins. Co., 35,043 (La.App. 2 Cir. 8/22/01), 793 So.2d 537; Severson v. St. Catherine of Sienna Catholic Church, 97-1026 (La.App. 5 Cir. 2/11/98, 707 So.2d 1026).

The defendant, Ms. Linders was a very poor witness who claimed to have virtually no recollection of what happened. However, as the burden of proof is on the plaintiff in general, in addition to which the plaintiff has the special burden in the instant case as an admittedly left turning motorist of overcoming the presumption that he is liable for the accident and explaining how the accident occurred, the plaintiff may not prevail merely on the weakness of Ms. Linders’ case.

The first of two purported eyewitnesses called by the plaintiff was Mr. Stanley Vincent. He testified that he was coming from a “washerette” at the time of the accident with Ms. Angel Cosse as a passenger in his truck:

Well, once I was traveling down there the car ran right in front of me and Pacific Street and I just said to myself, I said, “They must be going to put out a fire” because they would have hit me if I was — I was just pulling off from the dryer.

Mr. Stanley testified that Ms. Linders ran the stop sign, and was traveling in the parking lane/shoulder of the road at 45 to 50 miles an hour. He testified that the plaintiff had stopped and yielded first to oncoming traffic and when he had almost completed his turn, his vehicle was struck by Ms. Linders. When Ms. Linders vehicle was struck she veered to the right.

Mr. Stanley said that when the police officer arrived he told the officer he was a witness, but the police officer responded by telling him not to interfere with a police investigation, at which point Mr. Stanley walked off. He further testified to | soverhearing Ms. Linders admit to the plaintiff that she was at fault and that her insurance company would pay for the damage to plaintiffs automobile.

Mr. Stanley testified that Ms. Cosse remained in his truck. On cross-examination, Mr. Stanley said that he remained on the scene until the police arrived some 20 to 30 minutes after the accident until the police left. At some point Ms. Cosse got out of the truck, but she remained by it. She did not walk over to examine the accident. Mr. Stanley was cross-examined further:

Q. After you left the scene did you [and Ms. Cosse] talk about the accident?
A. No, I just told her I seen it. I know I seen it.
Q. Did she ever tell you whether she had seen it?
A. No.

Upon further cross examination, it came out that at the time he gave his statement to the plaintiffs insurance company, when asked which lane Ms. Linders was driving in he responded, “Well, this is one lane.” He never mentioned the fact that she might have been driving on the shoulder or parking lane. When asked why he had stated that there were no other witnesses that he knew of, he explained that Ms. Cosse had not wanted to become involved.

Mr. Stanley was questioned further about what he and Ms. Cosse may have discussed:

Q. In the two years between [the] time of the accident and May of 1997 when you gave this statement, did you ever become aware that Angie Cosse had witnessed this automobile accident?
A. No, no.
Q. During that entire two year time this, 25-year friend of yours, you never actually talked about whether she saw the accident?
A. No ...

Upon further cross examination, it was shown that at three different points during the statement he had denied that anyone else was with him in his truck. He explained this by saying that he didn’t want to get Ms. Cosse involved.

LPlaintiffs attorney attempted to rehabilitate Mr. Stanley on redirect examination with the following series of leading questions:

Q. Mr. Vincent, were you simply mistaken as to whether or not on that particular occasion that you went to the washeteria on that Saturday, whether you were by yourself or you had other people with you?
A. Right. I picked her up later. So— Two years from now, what do you want me to remember?
Q. So do — What day of the week — do you remember what day of the week this incident occurred on?
A. It should have been a week — I’m only off every weekend. It should have been a week [day].
Q. And you go to the washeteria to do your clothes during the weekend?
A. On Saturday, right.
Q. On Saturday?
A. Right. I’m not. [sic]
Q. So, on a routine basis, do you usually go by yourself to do your laundry?
A. Right.
Q. You don’t take somebody else with you?
A. No. I mostly drive by myself.
Q. Okay. So it’s an unusual event that you would have someone with you on this particular Saturday, May 22nd of 1995?
A. Right.
Q. Some seven years and three months ago?
A. Right.
Q. So you simply made a mistake as to whether you were alone or had somebody with you?
A. Right. All I did was picked her up and just she ran in there and see if they were ready, and that was it. And we came out.
Q. And your testimony is, you did know at the time of giving the statement whether or not she actually witnessed the incident. You told Mr. Cheatham to ask her himself?
A. Right.
Q. And you never discussed it up until the time of giving your statement?
A. No, I don’t — I mean, she lives a different way from me. I don’t have her number or nothing to call her.

Mr. Stanley further attempted to explain away the problems with his statement in response to further questioning by the plaintiffs attorney by saying that he was busy when he gave it and that it was not given under oath.

IsThe plaintiffs second witness, Ms. Angel Cosse, testified on direct that she was coming from a washeteria at the time of the accident, and that most of the time she went to the washeteria she went with Mr. Stanley Vincent the plaintiffs first witness. When asked what happened when she came into contact with Ms. Linders she responded:

She had ran a stop sign. She was going so fast she could have killed me. I was on that side.

She testified that Ms. Linders came from the passenger side of the vehicle in which Ms. Cosse was riding as a passenger in the front seat. She further testified that Ms. Linders was driving in the parking lane, “At least about 55, something like that,” on Opelousas Street which she thought had a posted speed limit of 20 or 25 miles per hour. When asked if she had seen Mr. Cheatham before Ms. Linders allegedly ran the stop sign, she responded:

No, I didn’t see him. I didn’t see him until after he had crossed over and she had hit him.

It was her opinion that had Ms. Linders not been going so fast she would not have struck the plaintiffs vehicle. After the accident she gave her name and phone number to the plaintiff but made no attempt to talk to the police officer in spite of the fact that she remained on the scene until he arrived. She said that she didn’t discuss the incident with Mr. Vincent because she didn’t know Mr. Cheatham and didn’t want to become involved. She said, when she was asked to become a witness some three years later she changed her mind.

Closer to the time of the incident she had apparently given a statement to Mr. Cheatham’s insurance company in which she expressed the opinion that the cause of the accident was the fact that Ms. Linders ran a stop sign and was speeding. On cross examination it came out that in that statement she said that Ms. Linders was driving in the middle, but at trial she said that what she probably meant was that Ms. Linders was in the traffic lane. But there is only one traffic |filane on Opelou-sas at that point. When asked why she had not told the claims adjuster that Ms. Linders was driving on the shoulder or the parking lane she replied:

Well ... it wasn’t important. None of it wasn’t [sic] important to me because it wasn’t me.

"When asked whether Ms. Linders vehicle had been struck in the front or the front side, she replied:

It looks like the front. I don’t remember.

However, she was cross-examined further on this issue:

Q. When they asked you where the damage on the Saturn [ (Ms. Lin-der’s vehicle)] was, what did you tell them [in your statement]?
A. On the front side.

When asked where the plaintiffs vehicle had been struck, at the time she gave the statement she had said, “That it was messed up in the front.” At the time she gave the statement she had indicated that the vehicles had collided in the center of the intersection, which was not consistent with her statement that the collision had occurred in the parking lane or on the shoulder.

Ms. Cosse attempted to explain away the inconsistencies by saying that at the time she gave her statement, “that wasn’t important to me” and that she was busy. As this was the statement she gave to the plaintiffs insurance company we may safely assume that the claims adjuster did not attempt to suggest answers to her that would have been adverse to the interests of the insured, the plaintiff, Mr. Cheatham.

When it was pointed out to her in her statement that she had indicated that Mr. Vincent was a passenger in her vehicle, she attempted to explain by saying that, “I probably got it screwed up when they asked me. I wasn’t driving.” However, in the same statement she was able to give Mr. Vincent’s phone number and the time he normally got home from work.

|7The plaintiff, Daniel Cheatham, described the accident on direct examination as follows:

Once I got to Atlantic Street and Opel-ousas, I made a left, which I was going to go south. I got in the intersection. I stopped and then I yield. I looked to my right and I saw a truck, a blue truck, which was like two blocks down which gave me a lot of time. The truck was coming slowly. I was crossing over slowly. So, as I got over Atlantic side, that’s when I looked to my right and I was hit, severely hit and it sped my car.

The plaintiff explained that when he looked he saw Mr. Vincent’s truck at Elmi-ra Street but did not see the defendant’s car:

When I saw her, that’s when she came up the parked lane. That’s when she hit me, spinned [sic] my car around, and I could have got killed myself.

He estimated Mr. Vincent’s speed to have been, “About 10 to 15 miles per hour,” while he testified that he was executing his left turn at, “About ten miles an hour, just going across.” He then estimated Ms. Linders speed to have been about 60 miles per hour. When asked what parts of the vehicles collided, he responded:

It was her driver’s fender and it struck my passenger side, the right of my car, and it shifted the whole front.

Mr. Cheatham went on to testify that when his car spun around, Ms. Linder’s car struck the rear of his vehicle. He explained that the reason Ms. Linders was able to travel the two blocks from where he first saw Mr. Vincent before he could complete his turn was because of her very high rate of speed and because, while one of the blocks was 172 feet long, the other was an unusually short block of only 140 feet.

He testified that after the accident he got out of his car and asked Ms. Linders how she was doing. According to the plaintiff, Ms. Linders apologized and admitted that she was at fault. He testified that she also told him “that she had problems and [that] her mind drifted] off.”

|8On cross-examination, Mr. Cheatham testified that he was mistaken in his original statement that there was another car behind the truck. At the time of his deposition, Mr. Cheatham testified that the witnesses left before the police officer arrived and returned after he left. In his deposition he testified that he first talked to the witnesses after the police officer left:

I talked to Stanley Vincent — I’m correcting that. I talked to Stanley to Stanley Vincent at the accident. I talked with an officer. That officer told me to shut up, like he told him, and go to my car. That officer talked to Ms. Pamela Linders and some people she was with. He talked to them. And he told me that he didn’t want to hear anything I had to say... .[Emphasis added.]

When Mr. Cheatham gave a statement to his insurance company it does not reflect that he mentioned the presence of Stanley Vincent, but the plaintiff insisted that the informed his insurance company of that fact. On redirect he explained that he was trying to furnish the names of witnesses but was cut off.

An analysis of the foregoing review of the testimony of the plaintiff and his witnesses reveals the following problems:

Mr. Stanley’s Testimony:

1. It is very difficult to believe Mr. Stanley’s testimony that he never discussed the accident with Ms. Cosse, the alleged passenger in his vehicle, in spite of the fact that they both testified that the vehicle they were riding in was almost struck by the defendant’s vehicle and that they remained at the scene while the investigating officer was present.
2. It is very difficult to believe that the investigating officer was not interested in the fact that Mr. Stanley was a witness.
3. It is troubling that Mr. Stanley told the plaintiffs insurance adjuster that there were no other witnesses to the accident, when he testified at the trial that Ms. Cosse was a passenger |9in his vehicle. At three different points in his statement he denied that anyone else was with him in his truck.
4. It is troubling that he never mentioned to the plaintiffs insurance adjuster that Ms. Linder might have been driving on the shoulder/parking lane.

Ms. Cosse’s Testimony:

5. Ms. Cosse’s testimony that she did not discuss the accident with Mr. Stanley is very difficult to believe when she was a passenger in his vehicle, she remained at the scene while the investigating officer was there and she testified that she was on the side of the vehicle that Ms. Linders almost struck and felt that she could have been killed.
6. In her statement to the insurance company she stated that Ms. Linders was driving in the middle or traffic lane, but at trial she testified that Ms. Linders was driving on the shoulder/parking lane.
7. At the time she gave her statement to the plaintiffs insurance company she said that the collision occurred in the center of the intersection, but at trial she stated that it occurred on the shoulder/parking lane.
8. At the time she gave her statement she said that Mr. Vincent was a passenger in her vehicle, whereas as at trial she and Mr. Vincent both testified that the opposite was true.

The Plaintiffs Testimony:

9. The plaintiff testified in his deposition that the witnesses left before the police officer arrived and returned only after he left.
|in10. Prior to trial the plaintiff stated that there was another car behind Mr. Vincent’s vehicle, but at trial he stated that there was no other car.
11. It is very difficult to believe that the investigating officer refused to speak to the plaintiff about the accident.

The physical damage to the vehicles contradicts the testimony of Cheatham and the eyewitnesses. Particularly, Cheatham testified that the Linders’ vehicle struck his passenger side, yet the photographs show damage to the entire front end of Cheatham’s vehicle. The photographs further show damage to only the driver’s side front fender on the Linders’ vehicle.

The trial judge stated on the record:

This is one of those cases where I can almost understand why it couldn’t settle. I have witnesses on both sides that can’t remember or don’t know what happened or changed their stories. After hearing the testimony in this case and reviewing the evidence in the difficult situation this is, the Court is going to find in favor of the plaintiff, Daniel Cheatham, and against the defendants, State Farm and Pamela Linders. The Court finds Ms. Linders 100 % at fault in causing the accident. [Emphasis added.]

While this Court should be slow to tamper with the findings of the trial court on factual issues, this is one of those cases where a review of the record as a whole reveals so many inconsistencies and contradictions, inconsistencies and contradictions acknowledged by the trial court as troubling and problematic, that the trial court finding that the defendant was solely at fault is not supported by a preponderance of the evidence. The plaintiff has further failed to show that he was free from fault in view of the presumption of fault as the left-turning motorist. In Accordingly, this Court should either reverse the trial court, or at the very least reallocate a significant percentage of the fault to the plaintiff.

If a reallocation of fault is determined upon rather than a complete reversal, then this Court should follow Riley v. Reliance Insurance Company, 97-0445, p. 6-7 (La.App. 4 Cir. 11/19/97), 708 So.2d 158, 163:

Thus Clement [v. Frey, 95-1119, 95-1163 (La. 1/16/96), p. 7-8, 666 So.2d 607], tells us that the allocation of fault is not an exact science, or the search for one precise ratio. Rather, it is an acceptable range and any allocation by the jury within that range cannot be “clearly wrong.” In Clement, the Supreme Court held that any allocation of fault falling between a ratio of 50/50 and 75/25 would be reasonable. This very broad range is illustrative of the analogy referred to in the passage quoted above from Clement, comparing fault and quantum determinations, Youn v. Maritime Overseas Corp., 623 so.2d 1257 (La.1993), cert. denied 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), affords the factfinder “great even vast” discretion, the Clement analogy mandates this Court to afford considerable latitude to the trial court in matters of fault allocation.

Id.; Courteaux v. State ex rel. Dept. of Transp. and Development, 99-0353 (La.App. 4 Cir. 9/22/99), 745 So.2d 91.

Once it has been determined that the fact finder has abused her broad discretion in the allocation of fault, as was done in this case, consistent with the analogy drawn by Clement between the discretion of the fact finder in the fixing of general damages to the fact finder’s broad discretion in the allocation of fault, this Court is limited to determining the highest or lowest point within that discretion. The least amount of fault attributable to the plaintiff is 50%. Correspondingly, the greatest amount of fault attributable to the defendant is 50%.

liP.For the foregoing reasons, the judgment of the trial court should be reversed, but if not reversed, then amended to reallocate 50% of the fault to the plaintiff, Daniel Cheatham, and 50% of the fault to the defendant, Pamela J. Linders, and as amended, affirmed.

      . Ambrose v. New Orleans Police Ambulance Serv., 93-3099 (La.7/5/94), 639 So.2d 216.

      . Some other cases in which the trial court’s factual calls were found to be manifestly erroneous were: Cole v. Department of Public Safety, 01-2123 (La.9/4/02), 825 So.2d 1134; Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606; Kelly v. Housing Authority of New Orleans, 02-0624 (La.App. 4 Cir. 8/14/02), 826 So.2d 571; Campora v. Falstaff, L.L.C., 01-2014 (La.App. 4 Cir. 6/12/02), 823 So.2d 389, writ denied, 2002-1918 (La. 10/25/02), 827 So.2d 1160; Royal v. Cottles, 97-1348 (La.App. 4 Cir. 1/7/98), 705 So.2d 1260.