author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana Through the DEPARTMENT OF SOCIAL SERVICES, OFFICE OF FAMILY SUPPORT in the Interest of Anthony CHESSER, Minor Child of Donna L. Chesser v. Kelly BRUNETTE.
    No. 2003-CA-1965.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 2004.
    Rehearing Denied July 15, 2004.

      George J. Higgins, Jr., State of Louisiana, DSS, SES, New Orleans, LA, for Plaintiff/Appellant.
    Joseph Neves Marcal, III, New Orleans, LA, for Defendant/Appellee.

      (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

This is an appeal by the State of Louisiana, Through the Department of Social Services, Office of Family Support (appellant) from the granting of a preliminary injunction in favor of Kelly Brunette (ap-pellee). For the reasons assigned, we reverse and remand.

Statement of Facts and Procedural History

On October 10, 2002, appellant filed a petition to establish paternity and child support on behalf of the minor child, Anthony Chesser, who was domiciled in the State of Oklahoma. The action was brought pursuant to the Uniform Interstate Family Support Act, La. Ch.Code art. 1301.1, et seq. The return of service indicates that appellee was personally served with the petition on October 30, 2002. No answer was filed; and a default judgment was ultimately obtained on March 19, 2003, adjudicating appellee as the father of the child and establishing child support. An Income Assignment Order for child support was also issued at that time. No appeal was taken from that judgment.

On June 17, 2003, appellee appeared in proper person and filed a Rule to Suspend the Support. Before that matter could be heard, appellee retained counsel and filed a Petition for Nullity. In connection with the Petition for Nullity, an ex parte Temporary Restraining Order was granted, restraining and enjoining the collection of the previously ordered child support pending a hearing on the preliminary injunction.

The hearing on the request for injunc-tive relief was set for July 30, 2003. The temporary restraining order and hearing date was extended twice pursuant to motions filed by appellee. The trial court heard the matter on August 7, 2003. Ap-pellee argued before the trial court that he was never served with the original petition to establish paternity and to set child support. Specifically, the sheriffs return indicated personal service on appellee at 4015 Iroquois Street in New Orleans on October 30, 2002, but evidence was presented to show that appellee was evicted from that address in June of 2002. Further, Jim Lynn testified that he resided at 4015 Iroquois Street on the date service was made. At the conclusion of the hearing, the trial court granted the preliminary injunction, enjoining the State of Louisiana and the State of Oklahoma from collecting the court ordered child support and from defaming appellee by suggesting that he is the father of the minor child. The trial court further ordered that a hearing be conducted on the petition for permanent injunction. On August 13, 2003, this devol-utive appeal was timely filed.

Discussion

Appellant raises the following assignments of error: 1) the trial court erred in enjoining the collection of child support where the judgment of child support remains a valid and final judgment; 2) the trial court erred in granting injunctive relief where there was no evidence of irreparable injury presented during the course of the injunction hearing; and 3) the trial court erred in finding that there was irreparable injury to the child, who was neither a party to the proceedings nor the applicant for relief, and that the support payable to benefit the child should, therefore, be enjoined.

Article 3601 of the Louisiana Code of Civil Procedure provides, in pertinent part, that “[a]n injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” The writ of injunction, a harsh, drastic, and extraordinary remedy, should only issue in those instances where the moving party is threatened with irreparable loss or injury, and is without an adequate remedy at law. Greenberg v. De Salvo, 254 La. 1019, 229 So.2d 83 (1969), cert denied, sub nom. Greenberg v. Dunker, 397 U.S. 1075, 90 S.Ct. 1521, 25 L.Ed.2d 809 (1970); Oestreicher v. Hackett, 94-2573, (La.App. 4 Cir. 5/16/95), 660 So.2d 29, 31.

Irreparable injury has been defined as “a loss sustained by an injured party which cannot be adequately compensated in money damages or for which such damages cannot be measured by a pecuniary standard.” Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 319 (La.1981), cert denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). In addition to proving irreparable damage, an applicant for injunctive relief must make a pri-ma facie showing that he will prevail on the merits of the case. Shaw v. Hingle, 94-1579, (La.1/17/95), 648 So.2d 903, 905.

In the present case, the trial court based its ruling on a finding of irreparable injury. Specifically, the trial court stated that the prior judgment, declaring appellee to be the father of the minor child, if in error, may cause long term psychological detriment to the child. The child, however, is not the applicant for the injunctive relief; and the trial court made no determination that appellee sustained irreparable injury.

After a thorough review of the record, we find no evidence offered to show that appellee suffered any irreparable injury by the judgment adjudicating him as the father of the minor child. The enforcement of the child support order is clearly measurable by pecuniary standards and, accordingly, is insufficient to support the granting of a preliminary injunction. Because appellee failed to show that he would suffer irreparable injury, we find that it was manifest error for the trial court to grant the preliminary injunction.

Conclusion

Based on our determination that the trial court erred in granting injunctive relief in favor of appellee, we reverse the trial court’s judgment granting the preliminary injunction, vacate the preliminary injunction, and remand the matter for further proceedings on the merits of appel-lee’s nullity claim.

REVERSED; VACATED; REMANDED.


source: Caselaw Access Project

author: AMY, Judge. | THIBODEAUX, C.J.,

license: Public Domain

text:
    STATE of Louisiana v. Willie James MORRIS, Jr.
    No. 04-120.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.

      James C. Downs, District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Thomas R. Willson, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Willie James Morris, Jr.
    Willie James Morris, Jr., Dixon Correctional Institute, Jackson, LA, pro se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   AMY, Judge.

The defendant was convicted of second degree battery and was sentenced to a term of three years’ imprisonment at hard labor. The defendant appeals his conviction, asserting that certain remarks made by the State during its closing argument violated his Fifth and Fourteenth Amendment rights. For the following reasons, we affirm.

Factual and Procedural Background

The record reflects that at around 11:30 pm on November 22, 2002, members of the Alexandria Police Department responded to an emergency call from the Chevron truck stop at 1-49 and Airbase Road. Upon arriving at the scene, officers encountered Carmella Milam, a/k/a/ Kelly Mills (hereinafter “Ms. Mills”), who claimed that the driver of an eighteen-wheeler parked in the parking lot had beaten her. While investigating Ms. Mills’ claims, officers came into contact with Willie James Morris, Jr, a delivery driver and the defendant herein, whom they determined was the suspect in the matter.

On January 7, 2003, the defendant was charged by bill of information with attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1. The defendant subsequently waived formal arraignment and pled not guilty on January 17, 2003. On August 12, 2003, the bill of information was amended to charge the defendant with second degree battery, a violation of La.R.S. 14:34.1, and the matter proceeded to trial by jury.

At trial, Ms. Mills testified that she became acquainted with the defendant at a truck stop in Dallas, Texas, on or about November 21, 2002. She explained that the defendant shared some barbecue with her and that they talked for several hours before the defendant mentioned that he was going back to Rapides Parish, Louisiana, for a week off. Ms. Mills stated that she decided to accompany him. She testified that during the trip, she and the defendant drank alcoholic beverages and used crack cocaine.

Ms. Mills stated that when they arrived in Alexandria, the defendant got out of the truck, and it was her understanding that he was going to go reserve a room for them at a motel. However, she testified, when the defendant returned, they did not go to a motel; instead, they remained in the defendant’s truck. According to Ms. Mills’ testimony, at this time, the defendant began to give her orders. She indicated when she did not react well to these commands, the defendant began beating her. Ms. Mills stated that after the initial round of beatings, the defendant requested sex, which she refused. She recalled that the defendant continued to beat her for several hours, repeatedly telling her that he was going to throw her into a bayou, and she indicated that she eventually lost consciousness after being choked. She stated that she tried to leave at one point, but the defendant knocked her back down. Ms. Mills explained that she knew that the defendant had not had much rest during the trip and had been drinking steadily, and she decided to wait until he passed out to get help. Ms. Mills testified that when the defendant passed out at the Chevron truck stop, she went inside to ask for help, and a man called the police on his cell phone.

Ms. Mills indicated that as a result of being beaten, she sustained cuts all over her face, a collapsed lung, bruises on her neck, cracked ribs, and blurred vision. The record also indicates that she underwent surgery, wherein a tear duct was inserted into her right eye. Ms. Mills further testified that as of the time of trial, she was still being treated for post-traumatic stress disorder and major depression.

Detective Wesley Mathews of the Alexandria Police Department testified that when he arrived at the scene, Ms. Mills was already in an ambulance. Detective Mathews indicated that an officer informed him that the suspect in the matter, the defendant herein, was in his truck in the parking lot. According to Detective Mathews’ testimony, he and the officer eventually established contact with the defendant, who had apparently been sleeping. Detective Mathews testified that he advised the defendant of his Miranda rights and asked to look inside the truck. He stated that after the defendant gave permission, he recalled that he saw blood spattered on the walls of the truck’s sleeper area. Accordingly, he called the crime scene division. Detective Mathews indicated that there were no witnesses to the beatings and that the investigation was based on the victim’s account of what had happened.

The defendant testified on his own behalf at trial, explaining that he had, in fact, hit Ms. Mills, but he did so in self defense. The defendant indicated that it was his understanding that Ms. Mills was a prostitute, and he claimed that although he paid Ms. Mills $10 for oral sex once during the trip, she had performed oral sex on him a second time without charging an additional fee. The defendant stated that, while parked at the Chevron in Alexandria, he noticed that his wallet was not in its usual location in the truck, and, when he opened it, he found that it was empty. As a result, the defendant concluded that Ms. Mills had stolen money from him during the trip, and he confronted her and asked to search her clothes. According to the defendant, Ms. Mills gave him her clothes to search and, while he was looking through them, she brandished a screwdriver and “kind of slashed” at him, threatened him, and then “slashed” at him as if to stab him. The defendant further testified that Ms. Mills bit him when he tried to take the screwdriver away from her, so he “punched her several times to make her ... stop biting [him]” and “punched her to give [him] the screwdriver also.” The defendant denied knowledge of what was on the walls of the sleeper compartment and denied using drugs.

The record indicates that the State inquired about the screwdriver in its cross-examination of the defendant as follows:

Q [by the prosecuting attorney]. Where is the screwdriver at now?
A [by the defendant], I don’t know, it was in that truck somewhere.
Q. And your lawyer had Detective Bates on the stand for a long, long time, did anybody ever ask him about a screwdriver, did you hear anybody talk about a screwdriver, did you?
A. I read it in the ...
Q. You read it?
A. ... statement, yes, sir.
Q. But nobody asked him a question? From this witness stand, that where the evidence comes from you heard all this when we started — [sic]
A. Uh-huh.
Q. Nobody asked him about a screwdriver, did they?
A. No.

On August 13, 2003, a unanimous jury rendered a verdict finding the defendant guilty of second degree battery in violation of La.R.S. 14:34.1. On August 22, 2003, the first of a series of arguments was held regarding the defendant’s motion for post-verdict judgment of acquittal or new trial, based on certain comments made by the IsState during its closing argument. On September 22, 2003, the trial court denied the defendant’s motions and sentenced him to serve three years at hard labor with credit for time served. The defendant subsequently filed a motion to reconsider, which the trial court denied. On September 23, 2003, the defendant filed a notice of appeal.

The defendant asserts, in his sole assignment of error, that after the State used his post-arrest silence to impeach his credibility during its closing arguments, the trial court mistakenly denied his requests to admonish the jury or, in the alternative, to grant a new trial, based on the defendant’s allegations that his Fifth and Fourteenth Amendment rights were violated.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. We find no such errors.

Alleged Violation of the Defendant’s Fifth and Fourteenth Amendment Rights

The defendant’s sole argument on appeal is that the State referred to his post-arrest silence in an attempt to impeach his credibility during its closing argument, thereby violating his Fifth and Fourteenth Amendment rights. The defendant argues that the trial court erred in denying his motion to admonish the jury and in denying his request for a new trial on this basis.

The defendant’s contentions herein are based upon the following remarks that appeared in the State’s rebuttal closing argument at trial:

But if you do believe that story about the screwdriver, the one that he didn’t tell the police, don’t you know if Detective Bates had heard anything about a screwdriver he’d have looked for one? I’d submit to you the screwdriver just appeared today. It sure wasn’t there that day.
The one about the bite marks that he didn’t tell the jail? I’m going to tell you the bite marks showed today. They weren’t there that day. | fiBut if you do believe all that, and I don’t know how you can, but if you do, question is that reasonable.... I don’t care if she had a gun, that ain’t reasonable. He could have took it away from her. And I’m going to tell you it never existed. It would have showed up today. Because if it existed he would have said, hey why are you taking me to jail. She attacked me. Let me show you the screwdriver.

At this time, defense counsel objected, contending that the State Mirandized his client, that his client had the right to refrain from making a statement, and that the State was now “implying” that his client should have given a statement, thereby infringing upon his rights. Defense counsel asked the trial judge to admonish the jury accordingly. The prosecuting attorney countered, opining that the statement was a “reasonable inference from the evidence,” not a “comment on [the defendant’s] assertion of rights.” The trial judge overruled defense counsel’s objection.

After the defendant was convicted, his attorney filed a motion for post-verdict judgment of acquittal and/or new trial, again raising the issue as to whether the State had properly mentioned the defendant’s post-arrest silence in its closing remarks. The court denied the motion, finding that the defendant’s rights had not been violated.

The circumstances in which admonition of a jury is appropriate are described in La.Code Crim.P. art. 771, which provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) Wfiien the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

In addition, the criteria for a mistrial are set forth in La.Code Crim.P. art. 770, as follows:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

The leading case addressing the impact upon a defendant’s rights by a State’s reference to the defendant’s silence is Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle, the defendants were charged with selling marijuana. Separate trials were held, and in both cases, the defendants claimed that they were framed. In an attempt to impeach the defendants’ credibility on cross-examination, the prosecutor inquired of each defendant why they had not informed the arresting officer of this defense. The defendants appealed, contesting the State’s use of their silence to impeach their credibility at trial. The matter proceeded to the United States Supreme Court, who held as follows:

Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State’s position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the ar-restee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, supra, 422 U.S. [171], at 177, 95 S.Ct. [2133], at 2137[, 45 L.Ed.2d 99]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, supra [422 U.S.], at 182-183[540], 95 S.Ct., at 2319, put it very well:
“[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.... Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.”
We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. ...

Doyle, 426 U.S. at 617-19, 96 S.Ct. at 2244-45 (footnotes omitted).

In State v. Bell, 446 So.2d 1191 (La.1984), the Louisiana Supreme Court underscored the following footnote appearing in Doyle:

It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378 (C.A.5 1975).

Bell, 446 So.2d at 1192 (quoting Doyle, 426 U.S. at 619, n. 11, 96 S.Ct. at 2245, n. 11). The court further observed in its opinion in Bell that, in State v. Sam, 412 So.2d 1082 (La.1982), a matter in which the State was persistent in cross-examining defendant regarding his failure to offer an exculpatory explanation at the time of his arrest, the defendant’s conviction was reversed in reliance upon Doyle. Nonetheless, the court pointed out,

In Sam, however, we noted the Doyle Court’s recognition that, under certain circumstances, a reference by the prosecutor to a defendant’s post-arrest silence is permissible. 412 So.2d at 1084, n. 1, quoting Doyle, 426 U.S. [at] 619, n. 11, 96 S.Ct. [at] 2245, n. 11 and citing United States v. Fairchild.
Thus we see that the Doyle proscription against referring to a defendant’s post-arrest silence is not without exceptions. Doyle itself stated that a defendant’s earlier silence may be shown to rebut a defense contention that the defendant had given an exculpatory story to the police after his arrest. In Fairchild, a defendant’s post-arrest silence was admissible to rebut a contention of active cooperation with the police when in fact the defendant had invoked his Fifth Amendment rights.
Additionally we have refused to reverse a conviction because a prosecutor referred to the defendant’s failure to sign the rights form in order to counter suggestions that the defendant’s attitude at the time of his arrest was one of nonchalance. State v. Brown, 395 So.2d 1301 (La.1981).

State v. Bell, 446 So.2d at 1192-93 (footnote omitted). The supreme court concluded that the State’s reference to the defendant’s post-arrest silence was neither a violation of his Fifth Amendment rights, fundamentally unfair, nor a deprivation of his Fourteenth Amendment due process rights, stating that:

In this case since defense counsel suggested to the jury that the state had failed to investigate the matter, and implied that, had it been investigated properly, the forgery charges would not have been brought against the defendant, the state was allowed to respond by asking the defendant and the investigating officers whether or not they tried to determine the defendant’s involvement by questioning him at the time of his arrest. The defendant may not tell the jury that the state’s case is the result of improper investigation without allowing the state to try to show the jury that the investigation was indeed thorough, or at least sufficiently thorough as to include inquiries of the defendant in order to get leads which might verify, or dispute, defendant’s noninvolvement.

Id. at 1194.

In the present appeal, the State contends that in its closing arguments at trial, it remarked that upon the defendant’s initial encounter with police, he should have told them that Ms. Mills had threatened him with a screwdriver. At this point in the investigation, the State insists, the defendant had not yet been read his Miranda rights, and the police were simply looking into a complaint. The State further argues that when the defendant did not offer an explanation as to what had happened, he was arrested. As such, the State argues that it referred to the defendant’s pre-arrest silence in its closing argument and, pursuant to Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), its use of the defendant’s pre-arrest silence to impeach his credibility was not improper.

In the alternative, the State argues that if police immediately placed the defendant under arrest, the prosecutor’s brief reference to the defendant’s post-arrest silence did not require a mistrial or a reversal on appeal because in general, the trial was conducted fairly, and there was strong evidence of the defendant’s guilt, citing State v. Ledesma, 01-1413 (La.App. 5 Cir. 4/30/02), 817 So.2d 390. In addition, the State claims that, pursuant to State v. Marcotte, 01-1586 (La.App. 3 Cir. 5/15/02), 817 So.2d 1245, writ denied, 02-1687 (La.2/7/03), 836 So.2d 96, the defendant cannot contest the State’s comments in this regard because the defendant questioned the thoroughness of the police investigation.

In the present matter, the defendant argues that the State’s remarks in its closing arguments were not “an oblique reference” to the defendant’s post-arrest silence but were, instead, a direct attempt to impeach the defendant’s credibility. The defendant contends that none of the exceptions to the United States Supreme Court’s decision in Doyle, as listed in Bell, above, are relevant in the matter at hand.

Our review of the matter on appeal first requires a determination as to whether the State’s closing remarks referred to the defendant’s pre-arrest or post-arrest silence. The record reflects that Detective Wesley Mathews testified on behalf of the State and described his initial contact with the defendant as follows:

A [by Detective Mathews]. Myself and Officer Tigner went to make contact with the suspect. We banged on the door for a while. Finally he woke up and he came outside. Officer Tigner patted him down for weapons. He had a small knife in his pocket. I advised him of his rights per Miranda. I asked him if I could look in his truck. He said sure, that was fine.
Q [by the prosecutor]. Did you start looking at the truck?
A. Yes.
Q. And what did you see?
A. When I stepped up into the truck, in the sleeper part, I saw blood spattered against all the walls in the sleeper part of the truck.
Q. And what did you do at that point?
A. At that time, I stepped down to make contact.
Q. Why would you do that?
A. I wanted—
Q. Why didn’t you investigate further?
A. I wanted to get a signed consent for permission to search.
A. Yes, I — at first, I went to make contact with Mr. Morris and asked him to sign a permission to search which we used. And at the time I called Detective Bates.
Q. What did you do after that, did you stay at the scene?
A. I stayed at the scene — well, after I called Bates we put Mr. Morris in handcuffs in back of Tigner’s unit. Officer Tigner transported him to headquarters and released him to Detective Howard. I stayed at the scene until Detective Bates arrived.

The Alexandria Police Department’s initial encounter with the defendant was further explained upon defense counsel’s cross-examination of Detective Mathews, in which the following colloquy occurred:

A [by Detective Mathews], After going back to the station, I tried to speak with Mr. Morris and he wanted his lawyer so we took him to the parish jail.
Q [by counsel for the defendant]. Okay. And in reference to that, when you asked him if he — if he could — you could search his vehicle, you advised him of his rights, is that right?
A. Right.
Q. When I talk about rights, we’re talking about Constitutional rights, is that correct?
A. Rights per Miranda.
Q. Right, constitutional rights and one of those rights is that he doesn’t have to let you search without a search warrant, is that correct?
A. Correct.
Q. And when he didn’t give you a statement and he asked for a lawyer, that’s one of those constitutional rights, isn’t it?
A. Right.

Detective Mathews’ testimony does not indicate that the defendant was informed as to the reasons why he was given his Miranda rights or why the police wished to search his truck. The relevant testimony merely indicates that upon looking inside the defendant’s truck, Detective Mathews asked the defendant for written permission to search, and the defendant was then handcuffed and put into a police car. Based upon our examination of the record, it does not appear .that the defendant was given an opportunity to explain what occurred, and it seems that the events prior to the defendant’s being placed in handcuffs occurred within a short period of time of the defendant’s initial contact with police. Accordingly, we find that the State’s closing argument referred to the defendant’s post-arrest silence.

Furthermore, we find that the closing remarks at issue herein were not, as the State contends, “a brief reference” to the defendant’s post-arrest silence as contemplated by Ledesma, cited by the State in support of this position. In that case, the defendant was charged with possession of crack cocaine. At trial, while questioning a police officer regarding the sequence of events occurring from the time of the initial complaint in the matter through the time of arrest and the defendant’s delivery to police headquarters, the State asked if the defendant had explained why he was in possession of the crack cocaine. The police officer responded that the defendant had not. In its review of the matter on appeal, the fifth circuit determined that the State’s reference to the defendant’s post-arrest silence was indirect. The circumstances of Ledesma are distinguishable from those of the instant matter. In its closing remarks in the instant matter, the State directly referred to the defendant’s post-arrest silence in an effort to impeach the defendant’s credibility. Accordingly, these remarks are improper unless they meet one of the exceptions to the general rule of Doyle, as set forth by the Louisiana Supreme Court in Bell, above.

The State and the defendant likewise offer conflicting interpretations of Marcotte, cited above, in support of their respective arguments on appeal. In Marcotte, the defendant was convicted of attempted distribution or dispensation of a controlled dangerous substance to a person under the age of eighteen, the defendant’s son. In defense counsel’s opening statement, he argued that there was insufficient evidence to convict and implied that the State had filed charges against the defendant solely on the defendant’s son’s allegations. In his defense, the defendant claimed that he had an alibi. He testified that he and had driven to a lodge with his son, who remained outside the lounge with friends while the defendant went inside. The defendant claimed that at one point, when he went outside to check on his son, he was not there. When the defendant looked for his son a while later, he had reappeared and was extremely intoxicated. In keeping with the alibi defense, defense counsel examined detectives about the extent of their investigation and inquired as to the detectives’ efforts to locate and to interview other witnesses. The defendant was convicted, and he subsequently appealed, complaining that the State’s cross-examination violated his constitutional rights. A panel of this court affirmed the defendant’s conviction, concluding that “[a]l-though the defendant’s attack on the State’s investigation was not as explicit as that in Bell, the defendant ‘opened the door’ to questions about his post-arrest silence[,]” and further commenting that:

[o]nce a defendant raises questions regarding an investigation’s thoroughness during trial, it is a theme he may well be expected to revisit during his closing argument to the jury. Thus, the State has a legitimate purpose in asking questions about a “defendant’s opportunity to explain what happened.” [Bell, 446 So.2d at 1194],

Marcotte, 817 So.2d at 1251-52.

The defendant argues that Marcotte, cited by the State in support of the trial court’s ruling, is distinguishable from the matter sub judice. The defendant observes that in Marcotte, the defendant raised an alibi defense that required notice to prosecutors pursuant to La.Code Crim.P. art. 727. The defendant points out that alibi is not an issue in the instant appeal. In addition, the defendant argues that due to the alibi and misidentification claims asserted by the defendant in Marcotte, the investigation preceding his arrest was thoroughly questioned. Accordingly, the defendant argues, the Marcotte decision intended the exceptions to Doyle regarding post-arrest silence to apply only to those limited facts. We disagree.

In Marcotte, as well as in the instant matter on appeal, the defendant contended that there was insufficient evidence for a conviction and implied that the State had filed charges automatically, based on the victim’s allegations. The following passage from the supreme court’s opinion in Bell was relied upon by the deciding panel in Marcotte and is also persuasive in the instant matter on appeal:

The case we review here is another situation in which it can be fairly said that the defendant invited the state’s inquiry into what happened in the early stages of the investigation. The state had a legitimate purpose in questioning the defendant and the investigating officer about the defendant’s arrest and defendant’s opportunity to explain what had happened. That was to rebut a defense contention that the prosecutor had failed to investigate the matter thoroughly before bringing charges against the defendant. Only coincidentally was there at the same time a prejudicial effect upon the defendant when this exploration also pointed up his post-arrest silence. The defendant himself broached the subject of a lack of investigation, which prompted the state’s attempt at refutation. The incidental consequence was that the defense lowered the bar and “discarded the [Fifth Amendment] shield which the law had created to protect him.” [U.S. v. Fairchild,] 505 F.2d at 1383.

Bell, 446 So.2d at 1193-94.

The record clearly reflects that the defendant repeatedly attacked the thoroughness of the police investigation in the instant matter, particularly during cross-examination of Detective William Bates, who conducted the crime-scene investigation. The following colloquy is representative of the defense’s inquiry into the extent of the investigation herein:

Q [by counsel for the defendant]. You ... did not have that blood analyzed, is that correct, in any way, shape or form?
A [by Detective Bates]. No, sir.
Q. You don’t know whether it’s human blood even, is that correct?
A. No, sir.
Q. Okay. And you did not have any DNA performed on it so you can’t say with any kind of certainty that it’s Kelly Mills/Milam, is that correct?
A. It’s her blood?
Q. Right. You didn’t do any DNA so you can’t say that it’s her blood.
A. No DNA testing saying it’s her blood, no, sir.
Q. Okay. So the only person who really is saying that whatever — if there is human blood in there, it’s Kelly Mills/Milam, is that right?
A. Kelly saying that she was beaten in the truck, yes, sir.
Q. Right. So it’s all her. I mean you didn’t do any analysis to make a determination of whether it was actually her, that’s correct?
A. Right.
Q. So all of which you purport — excuse me — purport to being blood stains, we have no scientific evidence that they are in fact human blood and that they were — belonged to Kelly Mills. So, or for that matter, that they belong to Willie Morris, is that correct?
A. That’s correct.

Upon further cross-examination, Detective Bates admitted that he did not take into evidence a pair of jeans found inside the defendant’s truck and did not test the stains found on the jeans to determine whether they were blood. Moreover, Detective Bates stated that he did not analyze swabs taken from the interior of the defendant’s truck, did not analyze stains on the defendant’s clothing, did not fingerprint the interior of the defendant’s truck, and did not take into evidence a maroon jumpsuit with a pair of panties found in the defendant’s truck.

Defense counsel commented upon the police investigation in the matter in his closing argument as follows:

That ... very well may be blood, but we don’t know that. What did [Detective Bates] say? Did he have it analyzed? No. Did he know that it was human blood? No. Did he do anything to identify this as blood? No. Where did [Detective Bates] get that information from? He got it from Kelly Mills/Carmella Milam that — that these pictures he took of — of the things inside the truck.
The screwdriver and the pipe, did Detective Bates take any evidence in this case except what somebody else collected and these photographs and those— those cards? I mean he didn’t take— there was a blue jean jacket there’s a picture of that’s supposed to have blood on it which was not analyzed. And that was not taken into evidence. So if it didn’t ... have blood on it, he didn’t take it as evidence.

As explained above, when a defendant attacks the thoroughness of a police investigation, pursuant to Bell, the usual prohibition against the State referring to the defendant’s post-arrest silence is not in effect. We conclude that in the present matter, when defense counsel attacked the thoroughness of the police investigation, he “opened the door” regarding the defendant’s post-arrest silence. Consequently, the State’s closing remarks with respect to the defendant’s post-arrest silence were not inappropriate. Accordingly, the trial court did not err in denying the defendant’s request for an admonishment and for a new trial following the State’s remarks at issue herein. This assignment lacks merit.

DECREE

For the foregoing reasons, the conviction of the defendant, Willie James Morris, Jr., is affirmed.

AFFIRMED.

THIBODEAUX, C.J., dissents and assigns written reasons.

| THIBODEAUX, C.J.,

dissenting.

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) prohibits the use of an accused’s post-arrest silence. Any reference to an accused’s post-arrest silence is legally impermissible. The use of such reference in cross examination of the defendant or in the state’s closing argument emasculates the right to remain silent, as guaranteed by the Fifth and Fourth Amendments to the United States Constitution and by Article 1, § 13 of the Louisiana Constitution.

In many, if not most criminal cases, the fairness of the police investigation is almost always attacked. The use of such a legitimate tactic is extremely limited if, by doing so, the state’s inquiry into an accused’s post-arrest silence is invited. Such a deterrent on the presentation of the defendant’s case raises serious questions with regard to the right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and by Article 1, § 13 of the Louisiana Constitution. It is incongruous for one to forfeit a constitutional right because other constitutional rights have been exercised or because the strength of the state’s case is attacked.

At the very least, the trial court should have admonished the jury in accordance with La.Code Crim.P. arts. 770 and 771.

For the foregoing reasons, I respectfully dissent. I would reverse the defendant’s conviction and remand to the trial court for a new trial.

      . Louisiana Revised Statute 14:34.1 provides as follows:
      Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
      For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
      Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

      . In Jenkins, the United States Supreme Court held that the use of a defendant’s pre-arrest silence does not violate his or her Fifth or Fourteenth Amendment rights.


author: li SULLIVAN, Judge.

text:
    Wanda Faye BUTLER, et al. v. Miguel A. DePUY, Jr., M.D.
    No. 04-101.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.

      Robert Hairford, Baton Rouge, LA, for Plaintiffs/Appellants, Wanda Faye Butler, Mirian Eileen Hertzler, Gertherd Olen Ashworth, Jr., Prentice Edward Ashworth, Rebecca L. Stanley, Calvin William Ash-worth, Nina June Howard, Sharon Ruth Woodard, Lynn Jackson Ashworth, Marvin Wendell Ashworth.
    John E. Bergstedt, The Bergstedt Law Firm, Lake Charles, LA, for Defendant/Appellee, Miguel A. DePuy, Jr., M.D.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   li SULLIVAN, Judge.

Plaintiffs, the adult children of Thelma Ashworth, filed this medical malpractice action, alleging that the negligence of Dr. Miguel A. DePuy, Jr. resulted in their mother’s death. They appeal the dismissal of their suit on summary judgment. For the following reasons, we affirm.

Facts and Procedural History

On February 1, 1999, Dr. DePuy, a cardiologist, attempted to implant a pacemaker in Mrs. Ashworth, an eighty-eight-year-old patient at Christus St. Patrick Hospital in Lake Charles, Louisiana. In his deposition, Dr. DePuy explained that he aborted the attempt when flouroscopic images of the procedure showed a “bowing” of the guide wire, indicating that it was pressing against a blood vessel wall. When Mrs. Ashworth’s blood pressure began dropping, Dr. DePuy realized that a “vascular complication” had developed. He began emergency measures to support blood pressure and called for a cardiovascular surgeon to repair the damaged blood vessels. Dr. DePuy stated that there was a delay in getting a surgeon to the hospital because the paging system was not working, but he noted that Mrs. Ashworth did have a blood pressure when she was taken to surgery. Dr. DePuy witnessed part of the surgery, noting that Mrs. Ashworth’s vessel walls were exceptionally thin and would bleed as the surgeon attempted his repair. Unfortunately, Mrs. Ashworth did not survive. The surgeon’s postoperative report indicated multiple lacerations near the junction of the innominate vein and the superior vena cava.

On December 21, 2001, a medical review panel rendered an opinion that Dr. DePuy did not breach the appropriate standard of care as to the technique | ^employed during the procedure and in the subsequent management of Mrs. Ashworth’s injuries. Plaintiffs then filed the instant suit on March 11, 2002. On November 27, 2002, Dr. DePuy filed a motion for summary judgment, contending that no genuine issue of material fact existed as to his liability. In support of his motion, Dr. DePuy introduced the medical review panel opinion; the affidavit of a panel member; Plaintiffs’ answers to interrogatories, dated July 29, 2002, in which they state that their expert has yet to be identified; and his own deposition. In opposition, Plaintiffs introduced the affidavits of three of Mrs. Ashworth’s children present at the hospital, who stated that Dr. DePuy told them that “I had an [ajccident, I’ve made a mistake” and that this was the first time in his thirty years of practice that something like this had happened.

After a hearing on January 31, 2003, the trial court took the matter under advisement. On May 28, 2003, the trial court found that summary judgment would be proper at that time, as Dr. DePuy’s statements did not amount to an admission that he breached the standard of care. However, the trial court ordered that the record remain open for forty-five days for the introduction of additional evidence. On July 30, 2003, the trial court signed a judgment dismissing Plaintiffs’ suit with prejudice, noting that more than forty-five days had elapsed without additional evidence in opposition to summary judgment.

On appeal, Plaintiffs have assigned five errors, but they essentially advance two arguments: (1) the trial court erred in granting summary judgment because their affidavits created a genuine issue of material fact as to whether Dr. DePuy breach the standard of care and (2) the trial court allowed insufficient time for them to find, consult, and retain an expert witness, considering that a pre-trial order had not been issued setting forth discovery deadlines and a trial date.

Opinion

It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. 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 of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action .... ” La.Code Civ.P. art. 966(A)(2).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but rather he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Plaintiffs contend that they have successfully rebutted the mover’s showing on summary judgment by introducing affidavits that Dr. DePuy told family members at the hospital that he had an “[a]ccident” and made a “mistake” during their mother’s | cardiac procedure. They further argue that this statement is a judicial admission of liability that relieves them of their obligation to produce expert medical testimony. We disagree with both assertions.

In Davis v. Atchison, 37,832, p. 6 (La.App. 2 Cir. 10/29/03), 859 So.2d 931, 935 (citations omitted) (emphasis added), the court explained the plaintiffs burden of proof in a medical malpractice action as follows:

In a medical malpractice action, the plaintiff must prove the applicable standard of care, that the physician lacked this- degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and the causal connection between the breach and the resulting injury. Generally at trial, a plaintiff must prove the applicable standard of care through expert medical testimony unless, “the physician does an obviously careless act ... from which a lay person can infer negligence.” Opinions from medical professionals are necessary for the determination of the applicable standard of care and whether or not that standard was breached. Expert testimony is especially necessary where the defendant in a medical malpractice action has filed a motion for summary judgment supported by expert opinion evidence that his treatment met the applicable standard of care.

The present case does not involve negligence so obvious that it could be inferred from the facts: it concerns an invasive procedure performed by a medical specialist. Clearly, Plaintiffs will be required to produce expert testimony to establish the applicable standard of care and whether a breach occurred. Additionally, as a physician, Dr. DePuy is not required “to exercise the highest degree of care possible, nor is he held to an absolute standard of precision.” Boudoin v. Crawford & Marshall, Ltd., 97-224, p. 26 (La.App. 5 Cir. 1/14/98), 709 So.2d 798, 808. We agree with the trial court that Dr. DePuy’s reference to a “mistake” in conversation cannot be equated with an admission that he breached the standard of care of a cardiologist performing a pacemaker implantation.

We now consider Plaintiffs’ argument that they were not given enough time to retain an expert, given that discovery deadlines had not been set and that the case had not been set for trial. In Perricone v. East Jefferson General Hospital, 98-343, p. 9 (La.App. 5 Cir. 10/14/98), 721 So.2d 48, 52 (citing Richoux v. Tulane Medical Center, 617 So.2d 13 (La.App. 4 Cir.1993), the court recognized that “the only requirement for the filing of a motion for summary judgment is that the parties be given a fair opportunity to present their claim.” The court then found no error in the refusal to give the plaintiff additional time for discovery, even though no cut-off date had been set, where two years had elapsed since the date of the accident and the medical review panel’s opinion was issued one year before the defendants filed for summary judgment.

In the present case, Mrs. Ashworth died three years before this suit was filed, and the medical review panel opinion was issued almost one year before the motion for summary judgment was filed. At the hearing on the motion, the trial court specifically questioned Plaintiffs’ counsel about the absence of expert testimony in support of their claim. The first ruling on summary judgment, issued four months after the hearing, gave Plaintiffs an additional forty-five days to retain an expert, although the trial court waited sixty days before dismissing the suit. On this record, we find that Plaintiffs were given a fair opportunity to present their claim.

On appeal, Plaintiffs state that they have retained an expert, whose report they did not receive within the deadlines set by the trial court, and they have attached that report to their brief. However, as recognized in Reed v. Peoples State Bank of Many, 36,531, p. 5 (La.App. 2 Cir. 3/5/03), 839 So.2d 955, 958, “[a]n appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence.” Accordingly, we may not consider exhibits that were not filed into evidence, since they are not part of the record on appeal. Id. On the record before us, we find that summary judgment was properly granted.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.

      . In their initial and amended petition, Plaintiffs are identified as Wanda Faye Butler, Mirian Eileen Hertzler, Gertherd Olen Ashworth, Jr., Prentice Edward Ashworth, Rebecca L. Stanley, Calvin William Ash-worth, Nina June Howard, Sharon Ruth Woodard, Lynn Jackson Ashworth, and Marvin Wendell Ashworth.

      . Dr. DePuy's deposition, taken on March 14, 2001 for the medical review proceedings, indicates that St. Patrick Hospital was also a defendant at that time; however, Plaintiffs filed the present suit against Dr. DePuy only.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Damian S. BURGESS.
    No. 04-121.
    Court of Appeal of Louisiana, Third Circuit.
    June 16, 2004.

      Frederick L. Welter, Assistant District Attorney, Crowley, LA, for Appellee: State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant: Damian S. Burgess.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT and BILLY H. EZELL, Judges.
   COOKS, Judge.

The Defendant, Damian Burgess, appeals his convictions on one count of simple battery and two counts of public intimidation. For the following reasons, we affirm the conviction of simple battery and reverse the public intimidation convictions on both counts.

FACTS

In the early morning hours of October 21, 2001, the Defendant, Damian Burgess, was closely following his girlfriend home from work. A Rayne City Police Officer saw the two drivers commit several traffic violations. The officer followed Defendant and his girlfriend to their residence. Initially, the officer decided to drive off as both vehicles were safely stopped, but changed his mind and returned to make sure a domestic situation was not occurring. After returning to the residence, the officer approached the Defendant and asked him to come toward him and answer a few questions. Defendant refused and a struggle ensued, with the Defendant fleeing the scene. Other officers arrived on the scene, and discovered Defendant lying in some leaves in a nearby yard. When the Defendant would not cooperate with police, he was eventually sprayed with mace and arrested.

On arrival at the police station, Defendant threatened one of the officers, stating he knew where the officer lived and would get him. He continued to threaten other officers during the booking process.

Defendant was charged with aggravated battery in violation of La.R.S. 14:34, and two counts of public intimidation in violation of La.R.S. 14:122. Following a jury trial, Defendant was convicted of simple battery in violation of La.R.S. 14:35, and two counts of public intimidation. For the battery conviction, Defendant was sentenced to six months in parish jail, suspended, with a two hundred fifty-dollar fine plus court costs, and for public intimidation to three years at hard labor, two years suspended, and three years supervised probation with special conditions.

Defendant challenges his convictions and sentences for public intimidation.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the Defendant contends the evidence presented at trial was insufficient to convict him of the two counts of public intimidation. He does not pose an insufficiency of the evidence challenge to his conviction for simple battery. He argues when he threatened the police officers, he did not have the specific intent to attempt to influence their conduct or duties, a necessary element of public intimidation.

In considering questions of sufficiency of the evidence, a reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686.

The Defendant was convicted of two counts of public intimidation in violation of La.R.S. 14:122. That statute provides, in pertinent part:

Public intimidation is the use of violence, force, or threats upon any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
(1) Public officer or public employee.

Under this statute, the State was required to prove beyond a reasonable doubt on each count that the Defendant threatened the officer with the intent to influence his conduct in relation to his duty.

At trial, Rayne City Police Officer Terry Broussard testified he is a reserve officer who is commissioned as a regular city police officer. On October 21, 2001, at 3:10 a.m., Officer Broussard was on duty when he noticed two vehicles that seemed to be traveling over the speed limit. He explained that a man was driving a truck closely behind a car being driven by a woman. The officer pulled out behind the pair of vehicles and followed the vehicles. At that point, Officer Broussard paced the two vehicles as traveling approximately fifty miles per hour in a forty mile per hour zone. He explained he could not use his radar because he was traveling at the time. Officer Broussard also testified he saw the two cars make an illegal right turn, and turned three other times without using turn signals.

Officer Broussard stated that he decided to make a traffic stop because he thought maybe the man was chasing the woman, or they were in a hurry to get home, or one of them was under the influence. He explained his eventual decision to approach the Defendant:

At the corner of North Polk and Jeff Davis I had turned on the overhead blue lights to initiate a traffic stop. But at the point when they both turned into their driveway, my first thought was, well, they’re both home safe, there was no accidents caused, so I’m just going to go on and patrol. I didn’t make a complete stop. I just made a rolling stop, just kind of glancing at the yard. They were both in the driveway. But then when I — -after passing up the house, I guess you could say a light bulb clicked in my head, saying what if this is domestic violence and I’m allowing this to happen. So I went around the block, which took me approximately, I would say, five to twenty seconds. I went and made the block. I parked the vehicle, the patrol unit which I was driving, on the street at the end of his driveway. At that point I did not see the female subject; I only saw the male subject. I got out of my unit and walked over—

He clarified that he first turned on his blue lights about two blocks from the Defendant’s residence.

Officer Broussard described the scene as very dark outside, but there was a street light in the area and the light next to the back door of the residence. Officer Brous-sard testified he was wearing his casual uniform consisting of blue fatigue pants Rand a black t-shirt with large white lettering stating “POLICE” on the front. He stated he was also wearing his gun, bullet ease, flashlight, nightstick, radio and his badge was visible hanging from his belt.

Officer Broussard testified he walked into the driveway and announced that he was a Rayne police officer and asked the Defendant to come toward him and answer a few questions. He stated the Defendant told him, “I know you are not talking to me, mother f_” Officer Broussard continued up the driveway to obtain the Defendant’s identification and find out where the woman was located. The officer approached the Defendant on the top step to his front door. Officer Broussard testified the Defendant had his keys in his left hand and a beer bottle in his right hand. He told the Defendant he would like to ask him a few questions, if he did not mind. Officer Broussard testified the Defendant took his right index finger and poked him in the chest and said “You’re going to need some help, mother f_Officer Brous-sard called for backup and put his hand on the back of the Defendant’s neck to keep him from going into the house. According to Officer Broussard, the Defendant then swung around and hit him in the back of the head with his fist that was holding the bottle. The men fell off the steps and wrestled in the bushes. During the struggle, Officer Broussard saw the woman approach, and noticed she seemed upset. Officer Broussard pulled out his nightstick, but the Defendant got loose and ran away. When backup officers arrived, the Defendant was found hiding across the street. The beer bottle was not recovered.

On cross examination, Officer Broussard admitted that he did not receive any report of domestic violence that night. Officer Broussard testified regarding his physical altercation with the Defendant:

Q. At no point in time once you made the stop did you ever have the opportunity to investigate the traffic violations?
A. Excuse me? I had opportunity — I tried to make contact with the subject, okay, but he was not cooperating with me for any reason at all. I mean he just didn’t want to cooperate with me.
Q. But you were primarily at that point in time discussing domestic violence?
A. That is correct. I wanted to make contact with him basically to see where the female was because I did not see the female at any point, like I said earlier, until he and I entered into a confrontation.
Q. If you’re concerned about the female in the situation, why didn’t you make an effort to find the female instead of confronting him?
A. I did not see the female anywhere. My concern before he got in the house was to make contact with him, to make sure that if he knew where she was, maybe he could help me find her. I wasn’t going to go looking all over for her, with the possibility that maybe he had done something, and let him get the house and get his hands on, possibly, a weapon or something or lock himself in the house. Then it would have caused more problems.

Officer John Jason Potter testified that he arrived on the scene as backup and Officer Broussard told him he had been hit in the head with a bottle and that the Defendant got away. Officer Potter and other officers that arrived on the scene found the Defendant laying in a nearby yard in some leaves. He was lying on his back with his hands behind him when he was ordered to show his hands and roll over. Officer Potter sprayed the Defendant with mace when he did not comply. A few seconds later, the Defendant complied and he was handcuffed, Mirandized, and taken to the Rayne Police Department. He was not belligerent with officers during the ride to the station. Once at the station, the Defendant’s handcuffs were removed and he was allowed to rinse out his eyes in the bathroom.

Officer Potter testified as follows:

In the hallway of the police department, right after the bathroom, he became in a defensive manner, crouched down with balled fists. At that time he stuck his finger in my face and began threatening me at that time. At that time I removed my straight baton and extended it and ordered him to go into the booking room where he could be booked.
Q. Do you remember anything specifically that he said to you?
A. He was advising me that he was going to get me off duty. He called me a “mother f_,” and he was going to get me off duty. He knew where I lived at. And he threatened other officers while in the station, also.
Q. What happened next?
A. We went to the booking, and we thought he’d calm down after a while to be able to be booked. He refused and became violent, threatening officers at that time. At that time I advised the other officers to put him in the cell for his safety and ours, until he could either calm down or we could book him property-
Q. How did you feel when he threatened you?
A. Well, it basically — any time a suspect is in the police department, in custody, and still threatening police officers with bodily harm, I felt threatened. I mean it just — there was four or five officers, and I felt threatened for myself and my family off duty.

Officer Potter stated he believed the Defendant was trying to intimidate him to drop the charges or let him go, although he noted that was not a reasonable expectation. Officer Potier stated the Defendant was being booked and was under arrest and was still threatening to harm them. Officer Potier explained:

Q. So your duties for him — aren’t you all trained to deal with this type of behavior? Isn’t it common for people who feel that they have wrongfully been arrested to become angry and lose their temper?
A. It’s not common for a person to be arrested and be brought to the police department and still threatening the police officers, even after he knows he’s going to jail, and being charged with an offense, to still threaten a police officer with bodily harm. That’s not a common thing.
Q. You don’t think that being sprayed with some type of spray would cause that to happen?
A. I’m sure it would, but not to the point of threatening a police officer and several police officers.

Officer Broussard’s testimony corroborated Officer Potter’s testimony regarding the arrest of the Defendant and his conduct at the police station. However, Officer Broussard stated he could not remember exactly what the Defendant said at [ the station.

Defendant’s girlfriend, Cynthia Lyons, testified on the night in question the Defendant had been with her at the Flamingo playing pool and drinking beer while she worked. After the bar closed, Defendant was following her from work to their home as usual. She stated there was no problem between the two of them that night. Lyons testified she did not see a police car initiate a stop with his blue lights. Once in their driveway, Lyons stated she was parked next to the Defendant’s truck and they discussed her going to get them something to eat. Lyons testified she was starting to back out when she saw headlights of a car pull up and a man walked up to the Defendant. She had no idea who the man was, so she opened her car door to hear what he was saying.

Lyons testified the man told the Defendant to “come here” because he wanted to talk to him. She did not hear the man identify himself as a police officer at any point. Lyons stated the Defendant was trying to unlock the three locks that secured their front door when the man continued to approach the front steps stating that he wanted to talk to him and ask him some questions. She said the Defendant had his pool cue case and a cigarette in his left hand, and had the keys in his right hand. Officer Broussard did not remember the Defendant having a pool case under his arm.

Lyons testified that after the man put his hand on the Defendant’s shoulder, the Defendant turned around and said, “I don’t know who you are and I don’t know what you got. Don’t touch me again.” Lyons stated the Defendant turned around and continued unlocking the door. According to Lyons, the man suddenly charged the Defendant and they fell into the bushes. She stated the man touched the Defendant first and never saw the Defendant swing at the officer. Lyons testified she approached the man to ask him what he was doing. She said she became frightened and told the Defendant to run because she saw the man reach behind him and thought he might have a gun. She testified she did not realize the man was a police officer, because he was wearing a dark t-shirt and jeans. It was not until he stood up that she was close enough to see that his t-shirt had the word “POLICE” written across it. She also stated she did not see a gun belt, badge or nightstick on the man. The officer did not tell her who he was or what he was investigating.

After the Defendant was arrested, Lyons went out to the street to ask the officer why he was at her house. Officer Broussard told her he thought there was a domestic dispute, but he did not say anything about the Defendant hitting him with any object. Lyons testified that it was possible that because of the darkness that the Defendant never realized the man was a police officer.

The Defendant argues that public intimidation requires the specific intent to influence an officer’s conduct. He states that he was merely venting his anger as he was being harassed by the police. In his brief to this court, the Defendant admitted he threatened the two officers involved. However, he contends he did so without the specific intent to influence their conduct in relation to their duties. The Defendant contends his statements were idle threats and were not intended to influence anyone.

Count One:

This count concerned the Defendant’s alleged public intimidation of Officer Broussard. The Defendant claims his statements to Officer Broussard were idle threats and were not specifically intended to influence his conduct. The State argues the Defendant’s threats were designed to make Officer Broussard leave the scene or to prevent the Defendant’s arrest. La. R.S. 14:10(1) states that specific criminal 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.”

The Defendant cites State v. Love, 602 So.2d 1014 (La.App. 3 Cir.1992), which held threats made to the officer were not made in an “or else” fashion and therefore, were not made with the intent to influence. In Love, this court stated:

Public intimidation requires specific criminal intent. “The statutory crime is ... not the intentional use of force or threats upon a public employee, but rather the use of force or threats upon him with the specific intent to influence his conduct in relation to his duties.” State v. Daniels, 236 La. 998, 109 So.2d 896 (La.1968); State v. Hall, 441 So.2d 429 (La.App. 2 Cir.1983).

Id. at 1018.

In Love, officers were called to the scene of a disturbance and were told the defendant had a butcher knife and had threatened to kill his family. The defendant was apprehended on a trail near the residence. After a scuffle and a brief escape, several officers subdued and arrested the defendant. While being transported in a patrol car to the police station, the defendant threatened an officer and his family. In reversing the defendant’s conviction for public intimidation, this court stated:

Officer White testified that, while Love was being walked up the trail, the defendant threatened to kill White several times. On the way to the Sheriffs Office, Love additionally threatened to burn down White’s house with his family in it. He repeated this threat several times and also spit in White’s face. This testimony was corroborated by Deputy Raimond, the driver of the police vehicle. This was the only evidence presented at trial on the public intimidation charge. Viewing this evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could not have concluded beyond a reasonable doubt that the specific intent element of the crime of public intimidation was proven. Granted, the defendant was clearly angry with White and directed these serious threats toward White in an effort to vent his anger. However, this in and of itself is not sufficient to prove a specific intent on the part of Love to influence White’s conduct in relation to his position, employment, or duty. The threats were directed toward White personally and his family members. There is no evidence in the record to indicate that White was in a position to grant Love lenient treatment or release from confinement. At the time, Love was handcuffed and already under arrest. Love did not indicate in any way that the threats were intended to influence White’s behavior. In other words, the threats were not made in an “or else” fashion. The threats were not made with the intent to influence White in the manner prohibited by the statute. The threats made and actions taken by Love do not constitute public intimidation within the meaning and intendment of La.R.S. 14:122.

Id. at 1019.

The State distinguishes Love, stating that in the instant case the Defendant was not under arrest and in custody when he threatened Officer Broussard, thus he could have been able to influence the officer’s actions to arrest him. However, Officer Broussard testified that when he initially approached the Defendant he was merely cheeking the welfare of the couple, as he thought a domestic situation might be occurring. He never testified that the Defendant was subject to arrest before he made the threat.

The State relies on State v. Jones, 00-980 (La.App. 5 Cir. 10/18/00), 772 So.2d 788, wherein the defendant threatened an officer in order to avoid arrest. The facts quoted from Jones are as follows:

At approximately 6:30 a.m. on May 17, 1998, Deputy Jennifer Wingrove of the Jefferson Parish Sheriffs Office, responded to a 911 call regarding a disturbance inside the Happy Hour Lounge at 7501 Fourth Street in Jefferson Parish, Louisiana. Deputy Wingrove, with three years of police experience, testified that the 911 call concerned a “black male [who] was threatening a female inside of the bar.” The perpetrator was described as wearing a black hat, a white or white and black T-shirt, and dark colored pants. When Deputy Win-grove arrived at the bar, she noticed a Caucasian woman and man, as well as a black man standing outside in front of the bar. The black man, later identified as the Defendant, matched the description of the individual who had been threatening the woman in the bar.
Deputy Wingrove approached the group. As she attempted to talk to them, the Defendant remarked, “I don’t have to talk to you, you’re not going to listen to me anyway.... You’re white and I’m black, and you’re not going to speak to me anyway, you’re not going to hear anything I have to say.” The Defendant left the bar and walked quickly down Jung Street.
Deputy Wingrove continued to speak to the group. After completing the interviews, the Defendant became a suspect in the disturbance. Deputy Win-grove wanted to hear the Defendant’s side of the story, so she drove around the area searching for him. She saw him near the bar and requested that he stop walking so that she could talk to him. But, the Defendant continued walking. Deputy Wingrove then pulled her car across the street to block the Defendant’s path. She exited her car and told the Defendant that she would like to speak to him regarding the incident at the bar.
Deputy Wingrove noticed a strong odor of alcohol coming from the Defendant and observed that he appeared to be intoxicated. According to Deputy Wingrove, the Defendant was belligerent, adopted a “combative” stance, and made the following comments:
I’ve been arrested before. I’ll get out tomorrow and then you’ll be in for it. I’ll kill you. I’ll f__k you and eat your p_y, and then I’ll set you up like I did Jeri Curl in Street Crimes, and then you can suck my big black d_k, you f_g wb_e.
Because Deputy Wingrove took the Defendant’s threats seriously and feared for her safety, she removed her “nightstick” and instructed the Defendant to get into the police car. The Defendant initially hesitated, but eventually entered the car without physical resistance. The Defendant continued making “threats and comments” in the backseat until Deputy Mike Aieklen arrived on the scene. Deputy Aieklen heard the Defendant shouting at Deputy Wingrove and thought that he was intoxicated. Shortly after Deputy Aick-len arrived, Deputy Wingrove arrested the Defendant for “disturbing the peace, resisting arrest, and public intimidation.”

Id. at 789-90.

The fifth circuit held the defendant’s threats could have been for “no other reason than to prevent arrest after Deputy Wingrove had probable cause for his arrest. Deputy Wingrove had not yet done anything to defendant for which he could have been retaliating.” Id. at 792. The court stated the circumstantial evidence showed by the defendant’s words that he felt he was going to be arrested, and his threats were made to prevent that from happening. The fifth circuit distinguished the Love case on the basis that the defendant was already arrested and being transported to the police station when he made his threat to the police officer. The Jones court stated, in each case, it must be considered “whether the threats are made in anger as revenge or retaliation or whether they are made in an attempt to influence the conduct of the public officer in relation” to their duties. Id. at 792.

The State also distinguishes the Love case by citing State v. Denham, 01-400 (La.App. 1 Cir. 12/28/01), 804 So.2d 929, writ denied, 02-393 (La.1/24/03), 836 So.2d 37. In Denham, the victim was the defendant’s probation and parole officer who visited him in jail to investigate whether he had violated his parole. The defendant told the victim if he took any actions to revoke his probation he would make sure something happened to him when he got out of jail. The first circuit stated:

Relying upon State v. Love, 602 So.2d 1014 (La.App. 3d Cir.1992), the defendant asserts that in order for the evidence in a public intimidation case to be sufficient to support conviction, the evidence must establish the victim in fact had the authority to give the defendant that which he was attempting to obtain through intimidation. While that case contains language supportive of this proposition, we note that the definition of public intimidation does not contain any such requirement. Thus, we need not determine whether the state established that Dillon had the authority to revoke the defendant’s parole.

Id. at 932.

Other persuasive cases include State v. Mead, 36,131 (La.App. 2 Cir. 8/14/02), 823 So.2d 1045, writ denied, 02-2384 (La.3/14/03), 839 So.2d 34. In Mead, the defendant was arrested after a domestic violence incident in his home. On the way to the police station, the defendant threatened the police officer stating that:

“I should have shot you this time,” and something to the effect of, “if you come back again you better bring your arsenal.” Additionally the defendant said, “I’ll do everything I can to get your damn badge,” and “in about two hours you make the trip back to my house.”

Id. at 1048. The officer testified he thought the threats were made to influence his actions.

The second circuit affirmed the public intimidation conviction, stating that the defendant made the threats “before he actually arrived at the police station and was booked with the specific intent to influence” the officer’s conduct, “i.e., to persuade him not to complete the arrest or certainly not to respond to any other calls from defendant’s residence after defendant’s release on bond.” Id. at 1048.

This circuit’s Love case was partially distinguished by the fifth circuit in State v. Meyers, 94-231 (La.App. 5 Cir. 9/14/94), 643 So.2d 1275, wherein the defendant’s conviction for public intimidation was affirmed. The defendant’s probation officer told him to go to the sheriffs office to be fingerprinted and photographed. At the office, the deputy clerk fingerprinted him and then told him to get his photograph at the jail. The defendant demanded an explanation, then continued to insist that she take his photograph. A few minutes later in the hallway the defendant threatened the clerk and told her “someone is going to get hurt.” She testified that she was afraid of the defendant. Shortly thereafter, the defendant saw the clerk outside and he yelled from a car stating: “You f_black b_I’m going to f_you up, me and my boys.” Id. at 1277. The defendant also made a gesture pointing his hand at the clerk and acting like he was pulling a trigger.

The Meyers court stated:

We find the Love case distinguishable on its facts. In the present case, defendant threatened Ms. Anderson in the hallway of the Sheriffs Office as he exited the bathroom and also as he was leaving the area in his friend’s car. The record seems clear that at the time these particular threats were made they were made in anger and were intended for retribution for failure to photograph the defendant. There was no evidence to indicate a specific intent to influence the victim’s conduct in relation to her position, employment, or duty. In that sense the Love case is comparable.
However, in the instant case the defendant also threatened Ms. Anderson on two occasions in her office in an attempt to convince her to photograph him. The evidence surrounding defendant’s conduct in Ms. Anderson’s office was sufficient to establish the elements of the offense of public intimidation beyond a reasonable doubt. At trial, Ms. Anderson testified that defendant threatened her and insisted she take his photograph. Ms. Anderson also testified that the two times defendant was in her office, he appeared very angry, causing her to be fearful that he might become violent.

Id. at 1278-79.

Finding the opposite result, the second circuit reversed a defendant’s public intimidation conviction in State v. Hall, 441 So.2d 429 (La.App. 2 Cir.1983). In Hall, the defendant threatened a store clerk with bodily harm and the loss of her job after the defendant had been caught shoplifting and arrested. There was no evidence at trial to show that the victim was being threatened in order to prevent her from testifying in court against the defendant. The court stated that the evidence of the defendant’s specific intent was circumstantial and, thus, must exclude every reasonable hypothesis of innocence. The second circuit stated:

Our review of the record compels us to conclude that the state did not meet its burden in this respect. The only testimony presented on behalf of the state regarding the actual circumstances surrounding the offense came from the victim and the investigating officer. It was the testimony of the victim that at no time did anyone ever warn her not to appear in court or otherwise attempt to influence her actions in connection with her role as a witness in the city court proceeding. The stated intent of the threats, as testified to by the victim, was to cause her to lose her job or to cause her physical harm. The testimony of the investigating officer was that the threats continued even after the defendant had pled guilty to the theft charge in city court. Other evidence clearly establishes that prior to her arrest on the instant charge, the defendant pled guilty to theft at her first court appearance. Considering the facts established at trial, while perhaps it might be concluded that the evidence tends to prove that the defendant acted as she did in order to influence Ms. Williams’ conduct as a potential witness, it might equally be concluded that the actions of the defendant were intended to accomplish another purpose, e.g. to punish or get even with Ms. Williams’ for her actions in connection with defendant’s arrest for theft.

Id. at 432-33.

As in the instant case, when circumstantial evidence is used to prove the commission of the offense, or more specifically the specific intent, La.R.S. 15:438 provides 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.” The State bears the burden of proving that the Defendant “actively desired the prescribed criminal consequences to follow his act....” La.R.S. 14:10(1). In other words, the evidence at trial had to show that the Defendant sought to illegally influence the officers regarding their duties when he threatened them.

In the instant case, we are unable to say that the Defendant, who had been drinking beer that night, had formed the necessary specific intent. The Defendant was not under arrest at the time he made his statement. He did not tell the officer to leave his property, and did not specifically threaten him if he did not do so. His statement that the officer was going to need help is ambiguous at best, and there is at least a question as to when the Defendant became aware that the man approaching him was a police officer. Pursuant to this court’s holding in Love, we find the State failed to prove that Defendant’s threat to Officer Broussard was made with the specific intent to influence the officer’s actions. Therefore, we reverse the Defendant’s count one conviction of public intimidation.

Count two:

Count two involved the Defendant’s threats to Officer Potier and other officers at the station while he was being booked. Again, Defendant contends his statements to Officer Potier were idle threats not intended to influence the officer’s conduct as he was already under arrest at that time. The Defendant also argues that Officer Potier was not in a position to grant him lenient treatment or release him.

The State argues this public intimidation conviction was supported by Officer Potier’s testimony that he felt the Defendant was trying to intimidate him to drop the charges. In Love, this court found it relevant that the officer was not in a position to grant the defendant lenient treatment or release. The State contends, in the instant case, Officer Potier was in a position to grant the Defendant lenient treatment as he could have dropped the charges of public intimidation. However, Officer Potier testified it was uncommon for a suspect to continue to threaten officers at the police station after he knows he is going to jail and is being charged with an offense. This testimony by Officer Po-tier indicates he was no longer in a position to give the Defendant any special treatment regarding his arrest and pending charges. It also is highly unlikely that Officer Potier would have been in a position to drop charges for a battery committed against another officer.

This court in Love found even though the defendant was being transported to the police station when he threatened to kill the arresting officer and his family, these threats were vented anger and were not made in an “or-else” fashion. Similarly, in the instant case, there was no evidence the Defendant’s threats to Officer Potier were made in an “or-else” manner. A few minutes earlier, Officer Potier had sprayed the Defendant in the face with “mace,” and after he was allowed to wash his eyes, the Defendant vented his anger at the officer. As discussed in the Meyers and Hall cases, the defendant’s intent could reasonably have been to attempt to punish and get back at the officers. In the instant case, the State did not disprove the reasonable hypothesis of innocence that the Defendant made the threats in anger and intended them for retribution for what he considered police misconduct. We find the circumstantial evidence presented at trial was not sufficient to prove the Defendant’s specific intent to influence the actions of Officer Potier. Therefore, we reverse the Defendant’s count two conviction for public intimidation.

ASSIGNMENT OF ERROR NO. 2

The Defendant contends the trial court erred in finding there was probable cause for his stop, and his conviction for simple battery must be reversed. He argues Officer Broussard’s testimony reveals he had already concluded his traffic violation investigation and driven away when he then decided to conduct a domestic violence investigation. The Defendant contends the officer had no probable cause to believe a crime had been committed.

At the hearing on the motion to suppress, the trial court denied the motion, stating:

You should know that presently the state of the law in Louisiana is that if a Police Officer witnesses a traffic violation, regardless of his motive for the stop, the stop is a good one. It doesn’t make any difference whether or not he wants to charge him with the traffic violation or not. He can stop him. I find that the Police Officer had probable cause to believe that traffic violations had occurred; i.e., the stop is valid.

The State claims that Officer Broussard had probable cause to arrest the Defendant for the traffic violations he had witnessed pursuant to the authority granted by La.Code Crim.P. art. 213.1. The Louisiana Supreme Court explained:

As a general matter, police officers may make warrantless arrests if probable cause exists, that is, “when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime.” State v. Marks, 337 So.2d 1177, 1182 (La.1976) (citing Beck v. Ohio, 379 U.S. 89, 90, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)); La.C.Cr.P. art. 213.

State v. Cojoe, 01-2465, p. 4 (La.10/25/02), 828 So.2d 1101, 1104.

In the instant case, Officer Broussard’s testimony was uncontroverted that he observed the Defendant commit multiple traffic violations, and he effected a “rolling stop” before the Defendant pulled into his driveway. However, the officer initially decided to give him a break, but within a few seconds changed his mind and went around the block to return to the residence. Therefore, Officer Broussard had probable cause for the arrest of the Defendant at that time. The Defendant argues the officer had already concluded his traffic investigation when he decided to act on a hunch that a domestic situation might have been occurring. In Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), cert. denied, 522 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed.2d 120 (1998), the United States Supreme Court held that subjective intentions of the police are irrelevant to the probable cause analysis. Thus, even if Officer Broussard intended all along to stop the Defendant to investigate domestic abuse, the fact that he had probable cause to stop him for the traffic violations validates the stop. Further, even if probable cause was lacking, the officer did not violate the Defendant’s fourth amendment rights by walking up to the porch and asking the Defendant to speak with him. State v. Deary, 99-627 (La.1/28/00), 753 So.2d 200. Therefore, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Lastly, the Defendant claims the trial court erred in denying his Batson objection to the State’s use of a peremptory challenge for a prospective juror. During voir dire, the prospective juror told the court her brother was the victim of a battery. The State questioned her as follows:

PROSPECTIVE JUROR:
Well, my brother got hit by someone with a pipe.
MR. WELTER:
Okay, so someone was attacking him?
PROSPECTIVE JUROR:
Well, he was the one doing it. The guy had waited until he got drunk and ...
MR. WELTER:
Was the person injured?
PROSPECTIVE JUROR:
Yeah, he got it bad.
MR. WELTER:
Was he knocked out, do you know?
PROSPECTIVE JUROR:
I’m pretty sure he was seeing stars, like you told us.
MR. WELTER:
Do you think it would have been different if he hadn’t started it?
PROSPECTIVE JUROR:
Right. He should have walked away.

The State peremptorily challenged her as a juror, and the Defendant raised a Batson challenge. The parties argued as follows:

MR. WELTER: Her brother got hit by a pipe and was the victim of a crime, although he started it. I believe at this point she would be biased in the fact that the police officer in this case is alleged to have been struck by a beer bottle by the defendant, and her brother had the same thing happen to him, and I don’t believe she could be fair and impartial because her brother, she said, had it coming to him. And I think she indicated, basically, that he had.it coming to him when he got hit by the pipe by the other guy; that he had it coming and it was his fault.
MR. LEJEUNE: I don’t think the juror indicated at any point in time that she couldn’t be fair and impartial. The situation in this case is not at all relevant or has any relationship to her brother being involved in a battery. I just don’t think that that’s sufficient cause for a challenge.

The trial court accepted the State’s explanation, stating that it met its burden to show a race-neutral reason. In its brief to this court, the State argues it was not systematically excluding African-Americans from the jury as one-third of the six-person jury was black and the State still had three peremptory challenges left when it accepted the jury. In addition, the State contends it gave a race-neutral explanation for its challenge. The State explained that the prospective juror may have felt that the officer in this case should have just walked away to avoid the confrontation with the Defendant.

The jurisprudence is clear that parties in a case may not use peremptory challenges to exclude jurors on the basis of race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), State v. Knox, 609 So.2d 803 (La.1992).

This principle of law is found in La.Code Crim.P. art. 795, which states in pertinent part:

C. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.
D. The court shall allow to stand each peremptory challenge exercised for a racially neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror.
E. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

As the voir dire colloquy illustrates, the State’s reason for challenging the prospective juror was her potential bias against the police officer victim in this case. As the second circuit court explained:

The explanation need not be persuasive or even plausible; it will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory exception. State v. Tyler, 97-0338 (La.9/9/98), 723 So.2d 939. The trial court’s findings with regard to a Batson challenge are entitled to great deference on appeal. Id.; Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

State v. Wade, 36,295, p. 8 (La.App. 2 Cir. 10/23/02), 832 So.2d 977, 984, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213.

Further, the fact that potential jurors are challenged on the basis of a claimed bias, without being questioned about such bias, “raises a strong inference that they were excluded on the basis of race alone.” Williams, 548 So.2d at 507; cf. Splunge v. Clark, 960 F.2d 705, 707-08 (7th Cir.1992) (explanation that venireman didn’t understand burden of proof insufficient when prosecutor asks venireman whether the fact that both venireman and defendant are black would affect deliberations, but fails to ask more than one question about the burden of proof). We find the state’s explanation that its sole reason for excluding Brown was based on his residency unpersuasive and was simply a pretext to its true reason, that the state excused Brown because of his race.

State v. Harris, 01-0408, pp. 7-8 (La.6/21/02), 820 So.2d 471, 475-76.

A trial court’s ruling on a Batson claim is entitled to great deference. Although the State did not question the prospective juror regarding any possible bias she may have had against either party, it did present a race-neutral explanation for its challenge. Under these circumstances, giving due deference to the trial court’s ruling, it did not err in allowing the State’s peremptory challenge. Therefore, this assignment is without merit.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find the trial court failed to advise the Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court should be directed to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.), writ denied, 623 So.2d 1334 (La.1993).

DECREE

For the foregoing reasons, the Defendant’s convictions on both counts of public intimidation are reversed, and those sentences vacated. The conviction and sentence for simple battery is affirmed. The trial court is instructed to advise the Defendant of the time period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8.

CONVICTION AND SENTENCE FOR SIMPLE BATTERY AFFIRMED; CONVICTION AND SENTENCE ON COUNT ONE AND TWO OF PUBLIC INTIMIDATION ARE REVERSED AND THE SENTENCES VACATED.

      . The Defendant notes that at a pretrial hearing the trial court determined that there was no probable cause for the public intimidation charge of Officer Potier. The court found the State presented no evidence and relieved the Defendant of his bond obligation. (Supp. R.p.32). At the hearing Officer Potier testified that the Defendant threatened him that he would get him off duty and made references to his wife and family. (Supp. R.p. 30). The threats occurred at the police station when the Defendant was in the booking room. Staff notes that Officer Potier's testimony regarding the threats was similar to his testimony at trial. However, it is clear that neither the trial court, nor this court, is bound by this pre-trial determination.