author: JjPEATROSS, J. It STEWART, J.,

text:
    STATE of Louisiana, Appellee, v. Clifton R. ROBINSON, Appellant.
    No. 37,043-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.
    Opinion Denying Rehearing June 30, 2008.

      Louisiana Appellate Project by: Paula Corley Marx, for Appellant.
    Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Shirley M. Wilson, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   JjPEATROSS, J.

Defendant, Clifton R. Robinson, was charged with two counts of aggravated battery in violation of La. R.S. 14:34 for the multiple stabbing of William F. Smith. Defendant was convicted by a unanimous jury of two counts of second degree battery in violation of La. R.S. 14:34.1. The trial court sentenced Defendant to five years imprisonment on each count, to be served concurrent with each other. Defendant now appeals his convictions and sentences. For the reasons stated herein, Defendant’s convictions and sentences are affirmed.

FACTS

On August 10, 2001, William F. Smith was sitting on the porch of a vacant house on Marx Street in Monroe with two friends, Candy Johnson and Ray Robinson. The vacant house was owned by a member of Mr. Smith’s family and he had assumed the responsibility of maintaining the property and yard when the house was vacated. Mr. Smith owned and lived in a mobile home located on the adjacent lot. On this particular evening, Mr. Smith was shelling peas and the group was drinking alcohol.

Late in the evening, Defendant approached the porch of the vacant house where Mr. Smith and his friends were sitting and tried to sell Mr. Smith some tools, which, according to Ms. Johnson, were stolen. The record indicates that Mr. Smith had known Defendant for many years and that Defendant had spent nights in Mr. Smith’s home. Mr. Smith told | ¡¿Defendant he was not interested in the tools and asked him to leave. Defendant and Ms. Johnson then left.

A short time later, Defendant returned with Ms. Johnson, again attempting to sell the tools. Mr. Smith again told Defendant that he' had no use for the tools and told Defendant to leave the property. Mr. Smith testified that Defendant replied, “it ain’t your house” and “I ain’t going no damn where. Put me out,” and began shouting profanity at Mr. Smith. Mr. Smith attempted, unsuccessfully, to remove Defendant from the porch. As this happened, Defendant pulled a pocket knife out of his back pocket. Mr. Smith, who testified that he did not see the knife, picked up a board that was beside the front door, and swung it at Defendant. The board missed Defendant, but hit the porch post and broke apart. At that point, Defendant stabbed Mr. Smith in the shoulder. Mr. Smith then attempted to flee from Defendant, falling over a chair and off of the porch into the yard. Defendant then straddled Mr. Smith in the yard and began hitting and stabbing him with the pocket knife.

As the altercation on the porch began, across the street Tony Hickman and his wife were getting into their car to leave after visiting Mr. Hickman’s brother. Mr. Hickman heard the commotion on the porch and, specifically, heard Mr. Smith telling Defendant to get off the porch. Mr. Hickman testified that he heard Defendant respond, “it ain’t your house.” [sMr. Hickman walked around his car and saw that the two men were then in the yard and saw Defendant straddling Mr. Smith and punching him. While Mr. Hickman did not see the pocket knife, he testified that he heard Mr. Smith say, “you stabbed me.... ” Mr. Smith and Ms. Johnson both testified that, as he was beating and stabbing Mr. Smith, Defendant stated, “I’ll kill your ass.”

Ms. Johnson began yelling at Defendant to stop and Defendant got off of Mr. Smith and fled the scene. Defendant had stabbed Mr. Smith in the shoulder and stomach and had punched him several times in the face and body. Although Mr. Smith was able to stand, his stomach had been cut open and his intestines were protruding from one of the wounds. Emergency assistance was summoned and Mr. Smith was taken to the hospital where he underwent surgery and treatment for stab wounds to the shoulder and stomach.

Defendant was arrested two months later. The original booking charges were two counts of attempted second degree murder, but the district attorney later filed a bill of information charging Defendant with two counts of aggravated battery. As previously stated, Defendant was tried by a jury, with witnesses testifying as described above. In addition to Mr. Smith, Ms. Johnson and Mr. Hickman, two detectives of the Monroe Police Department testified regarding the investigation and arrest. Specifically, Detective James Clark provided testimony regarding the arrest and the Defendant’s post-arrest silence, as is discussed in more detail later in this opinion, about which Defendant now complains on appeal. Defendant [4presented no evidence. The jury found Defendant guilty of the responsive verdict of second degree battery on both counts.

The trial court ordered a pre-sentence investigation report and Defendant was sentenced on August 5, 2002. The trial court noted that the pre-sentence investigation report found that Defendant was a fifth-felony offender, with felony convictions beginning in 1984. In addition, Defendant’s record included numerous misdemeanor convictions, some of which involved crimes against persons, including at least three prior convictions for simple battery. The trial court found Defendant not to be eligible for probation or a suspended sentence. As previously stated, the trial court sentenced Defendant to the maximum sentence on each count of five years at hard labor, to be served concurrently with each other, with credit for time served.

The record shows that the State had filed a habitual offender bill of information on July 26, 2002, alleging Defendant to be a second-felony offender. During the sentencing, however, the State advised the court that, based on the sentences imposed, it was abandoning habitual offender proceedings against Defendant. No motion to reconsider the sentences was filed. This appeal ensued.

DISCUSSION

Defendant has assigned the following errors on appeal:

1. The evidence herein is legally insufficient to sustain Appellant’s conviction.
2. The Honorable Trial Court erred in imposing upon Appellant an excessive sentence.
|r3. The Honorable Trial Court erred in failing to declare a mistrial when comment was made on Appellant’s post arrest silence.

Sufficiency of evidence

Defendant argues that there was insufficient evidence to convict him of second degree battery. While he does not dispute the fact that he hit and stabbed the victim or that the battery inflicted serious bodily injury, Defendant submits that the State failed to meet its burden of proof in disproving that he acted in self-defense. Specifically, Defendant argues that the evidence does not exclude the reasonable hypothesis that the battery was in self-defense. We disagree.

A sufficiency of the evidence claim requires the reviewing court to determine whether a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in Part. State v. Bosley, supra; State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987).

La. R.S. 14:34.1 provides:

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.

La. R.S. 14:19 provides:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.

The standard of proof when a defendant claims self-defense in a non-homicide case is a preponderance of the evidence. State v. Freeman, 427 So.2d 1161 (La.1983); State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992). The jurisprudence does not clearly define or allocate the burden of proving self-defense in a non-homicide case. State v. Braswell, supra. The jury in the case sub judice was charged with the more stringent standard, placing the burden of proof on the State. We will, therefore, 17review the evidence in light of this charge, requiring the State to negate self-defense beyond a reasonable doubt. See State v. Braswell, supra.

The issue of self-defense requires a dual inquiry, an objective inquiry into whether the force used was reasonable under the circumstances and a subjective inquiry into whether the force was apparently necessary. State v. McClure, 34,880 (La.App.2d Cir.8/22/01), 793 So.2d 454, citing State v. McBride, 00-00422 (La.App. 3d Cir.11/15/00), 773 So.2d 849, writ denied, 01-0294 (La.2/8/02), 807 So.2d 858, and State v. Wallace, 98-2450 (La.App. 1st Cir.9/24/99), 754 So.2d 991. A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21; State v. McClure, supra, citing State v. Tisby, 33,591 (La.App.2d Cir.6/21/00), 764 So.2d 209, writ denied, 00-2236 (La.6/1/01), 793 So.2d 181.

In the case sub judice, the evidence shows that Defendant went on property belonging to another, uninvited, for the purpose of selling items which were allegedly stolen. Although Mr. Smith was not the owner of the property, he was a family member who had undertaken the responsibility of overseeing the property. When Mr. Smith asked Defendant to leave the property, Defendant refused and demanded that Mr. Smith make him leave. As previously noted, the record is not entirely clear as to whether Mr. Smith pushed or pulled Defendant by the arm in an attempt to get him off of the porch. At trial, Mr. Smith testified he did not; whereas, in his original | ^statement to the police, he stated that he grabbed Defendant’s arm in an effort to remove him from the porch. When Defendant refused to leave the property, Mr. Smith picked up a board and swung it at Defendant. The board missed Defendant, but hit the porch post causing the board to break apart, leaving Mr. Smith unarmed. Thereafter, Defendant stabbed Mr. Smith in the shoulder with a small knife. Mr. Smith testified that, after being stabbed in the shoulder, he was trying to get away from Defendant when he tripped over a chair on the porch and fell into the yard. Defendant then pinned Mr. Smith down by sitting astride him and repeatedly punched and stabbed him. Defendant did not ease his assault until Ms. Johnson told Defendant to leave Mr. Smith alone.

The evidence, viewed in a light most favorable to the State, shows that Defendant was the initial aggressor and brought on the difficulty by trespassing onto property owned by Mr. Smith’s family and maintained by Mr. Smith, and then refusing to leave the property. Defendant started the conflict by shouting profanity at Mr. Smith when he was asked to leave the property and demanding that Mr. Smith “put him out.” Once the conflict was underway, Defendant made no effort to discontinue the difficulty or to withdraw in good faith. Nothing prevented Defendant from simply stepping off the porch and leaving the property.

Even assuming that Mr. Smith initiated the conflict, the evidence establishes that he attempted to withdraw from the conflict when he turned and tried to flee off of the porch and away from Defendant. Defendant then pursued Mr. Smith, pinning him down and beating and stabbing him. It is | salso noteworthy that Mr. Smith was a much older and smaller man than Defendant and did not pose any serious threat of harm to Defendant. Accordingly,, viewed in a light most favorable to the State, the evidence is sufficient to convince any rational trier of fact beyond a reasonable doubt that Defendant used force or violence upon Mr. Smith, with the intent to cause serious bodily harm, and that Defendant’s conduct was either not justified by the need to prevent the victim from committing a forcible offense against Defendant, or was greater than necessary to prevent it. See La. R.S. 14:19.

Excessive sentencelmaximum sentence imposed

Defendant argues that the maximum sentences were unconstitutionally excessive. Since Defendant did not file a motion to reconsider his sentences, with specific allegations of errors, he is relegated to having this court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The second inquiry involves a determination of whether the sentence imposed is too severe. This inquiry depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a needless and purposeless infliction of Impain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345. The crime of second degree battery carries a term of imprisonment, with or without hard labor, for not more than five years. La. R.S. 14:34.1.

La. R.S. 14:34.1 provides, in pertinent part:

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.

Defendant argues that the record contains an insufficient factual basis or explanation for the sentence of five years at hard labor on each count imposed by the trial court. He further asserts that the record does not show what considerations the trial court took into account in fashioning the sentence.

Contrary to Defendant’s assertion, the record contains an ample showing of the considerations taken into account by the trial court in imposing the sentence. The trial court reviewed the pre-sentence investigation report and the facts of the case. It also reviewed Defendant’s In extensive criminal history, which included five felony and numerous misdemeanor convictions. Many of the convictions involved batteries or other crimes against persons.

In the instant offense, Defendant used a knife against the victim, causing serious, life threatening injuries. Although the evidence clearly supports convictions for aggravated battery, the jury found Defendant guilty of the lesser offense of second degree battery. After consideration of the factors presented by Defendant, and in Defendant’s pre-sentence report, the trial court imposed a maximum sentence of five years at hard labor, with credit for time served and directed the two sentences to run concurrently with each other. The trial court did not believe that probation or a lesser sentence would be appropriate in light of the seriousness of the offense.

Defendant, a multiple felony offender, acted without justification and caused substantial injury to the victim. This sentence does not shock the sense of justice. We find no manifest abuse of the trial court’s wide discretion in the imposition of the maximum sentences in this case, i.e., two five-year sentences.

This assignment is without merit.

Mistrial/comment on post-arrest silence of Defendant

La.C.Cr.P. art. 770 provides, in pertinent part:

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:
(3) The failure of the defendant to testify in his own defense;

| ^Defendant argues that the trial court should have ordered a mistrial because the assistant district attorney elicited testimony at trial regarding Defendant’s post-arrest silence. Detective Clark testified as follows in response to questions of the assistant district attorney:

Q. When the arrest was made, did the defendant give a statement?
A. He did not.
Q. Did he allege any type of self-defense claim?
By Defense counsel: Objection, Your Honor, that goes to the right of the defendant to remain silent.
By ADA: Withdrawn.
By the Court: Sustained.

The record does not reflect that Defendant made any motion for mistrial or to admonish following his objection.

While the language of article 770 provides for a mistrial in the event the prosecution refers directly or indirectly to the failure of the defendant to testify on his behalf, Defendant’s failure to move for mistrial or object to the prosecution’s statements is fatal to his claim of error on appeal. State v. Pearson, 336 So.2d 833 (La.1976); State v. Gatch, 27,701 (La.App.2d Cir.2/28/96), 669 So.2d 676, writ denied, 96-0810 (La.9/20/96), 679 So.2d 429. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C.Cr.P. art. 841(A). The absence of a timely motion for mistrial on article 770 grounds | ^constitutes a waiver of the defect. State v. Gatch, supra, citing State v. Shepherd, 666 So.2d 1127 (La.App. 2d Cir.1990), and State v. Hookfin, 476 So.2d 481 (La.App. 1st Cir.1985).

In addition, the language of article 770, while requiring the motion for mistrial to be asserted by the defendant, additionally recognizes that the defendant may elect to continue the trial with only an admonition to the jury being given. Thus, when the defendant does not raise a timely motion for mistrial for the prosecutor’s comment on the defendant’s failure to testify, he has elected not to remedy any negative effect that comment may have had on the jury and to continue the trial. The motion for mistrial is a necessity; and Defendant, after waiving the issue at trial, cannot raise it for the first time on appeal. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant Clifton R. Robinson are affirmed.

AFFIRMED.

STEWART, J., concurs with written reasons.

It STEWART, J.,

concurs.

While I concur with the majority that based on the assignments of error presented this case should be affirmed, it concerns me that the question of whether double jeopardy was present goes unresolved.

The U.S. Supreme Court, and the Louisiana Supreme Court have both interpreted the protection against double jeopardy to mean, “double jeopardy provisions protect an accused not only from a second prosecution on the same offense, but also from multiple punishments for the same criminal conduct.” State v. Vaughn, 431 So.2d 763, 767 (La.1983), citing, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Here, it is arguable that the state had charged the defendant with two identical, but separate, offenses arising out of the same continuous offense.

While I believe that one of these convictions probably constitutes double jeopardy because both convictions arose out of one continuous battery, this error has not been raised by the defendant and doesn’t appear to be error patent.

Before BROWN, WILLIAMS, STEWART, PEATROSS & DREW, JJ.

| .PER CURIAM.

On rehearing, Defendant, for the first time, argues that his convictions on two counts of second degree battery violate the prohibition against double jeopardy. While noted as a possible issue by the concurring opinion, the majority opinion did not address any possible double jeopardy issue because it had not been raised by Defendant and because we concluded that, in the case sub judice, any such issue was not subject to error patent review as there is no double jeopardy violation “discoverable by the mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.C.Cr. P. art. 920. Now, on rehearing, we further find that the claim of double jeopardy was not properly raised in the trial court, or on appeal, and cannot properly be raised for the first time in an application for rehearing. See Mosing v. Domas, 02-0012 (La.10/15/02), 830 So.2d 967; Churchill Farms, Inc. v. Louisiana Tax Commission, 249 So.2d 594 (La.App. 4th Cir.1971), writ refused, 259 La. 321, 249 So.2d 923 (La.1971).

The appellant will have two years, after the finality of his conviction, to raise this issue. See La.C.Cr. P. art. 930.3(3) and La.C.Cr. P. art. 930.8. The application for rehearing is DENIED.

      . Defendant’s full name is Clifton Ray Robinson. He and the male friend who was sitting on the porch with Mr. Smith on the evening of the incident are cousins and are both named Ray Robinson.

      . Ms. Johnson testified at trial that the vacant house was often used for doing drugs.

      .There is some dispute in the testimony as to whether Mr. Smith grabbed or pulled Defendant's arm to remove him from the porch. Mr. Smith testified at trial that he did not grab Defendant; however, in his initial statement to the police, Mr. Smith stated that he did grab Defendant.


source: Caselaw Access Project

author: I;WILLIAM H. BYRNES III, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Robert E. SMITH and Arcenius Armond.
    No. 2002-KA-2736.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.

      Julie E. Cullen, Assistant Attorney General, Baton Rouge, LA, for Plaintiff'Appellant.
    John Wilson Reed, Glass & Reed, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, and Judge EDWIN A. LOMBARD).
   I;WILLIAM H. BYRNES III, Chief Judge.

On March 22, 2001, the defendants were indicted by a grand jury for violations of La. R.S. 15:1303 , pertaining to interception and disclosure of wire, electronic, or oral communications. Smith was charged with two counts pertaining to interception of a communication under subsection (A)(1), and disclosure under subsection (A)(3), and Armond was charged with one count of disclosure under (A)(3). The Office of District Attorney, Orleans Parish, was recused from the case and the Office of the Attorney General, State of Louisiana, became the prosecuting body. The defendants were arraigned and pled not guilty Ron May 4, 2001. The defendants filed a motion to quash, which was granted on June 20, 2002. The State appealed.

STATEMENT OF FACT

Assistant District Attorney Roger Jordan went to the House of Detention to interview Brian Mathieu as a witness in the case of the murder of his cousin, Kevin Mathieu, by Raymond Laugand. An hour or so later, OIDP investigator Robert Smith, defendant herein, went to the House of Detention, also to interview Mathieu on behalf of Raymond Laugand. Smith testified without contradiction that he was retained by Laugand’s family. Jordan was still interviewing Mathieu. Jordan did not know Smith was present. Smith could hear Jordan and Mathieu talking through the closed door to the interview room. He taped the conversation with a tape recorder he happened to have in his possession, not one that had been provided by the prison. Smith then called Arcenious Armond, now his co-defendant herein, but who, at the time, was the defense attorney for Raymond Laugand in the murder case. Smith told Armond that he had heard Mathieu committing perjury and had taped the conversation. Armond told Smith to bring him the tape. At the Laugand trial, Armond attempted to introduce the tape, but the tape was ruled inadmissible.

The key portions of the record are the partial transcript of November 30, 2000, of the trial of Laugand, containing Armond’s representations to the court and Smith’s testimony concerning the recording; the supplemental police report; and the June 20, 2002 transcript of the motion to quash.

| ^ASSIGNMENT OF ERROR

Plaintiffs sole assignment of error can be reduced to the argument, as hereinafter explained, that Smith was in a “contrived position” when he overheard and recorded the conversation that resulted in Smith’s prosecution herein.

At the outset it is important to note that there can be no violation in the instant case of La. R.S. 15:1303(A)(3) unless there is a violation of La. R.S. 15:1303(A)(1), i.e., there is no violation of the use and disclosure prohibition unless there is first a violation of the interception prohibition.

In U.S. v. Carroll, 337 F.Supp. 1260 (D.D.C.1971), the court held that where a conversation in an adjacent hotel room could be heard in the defendant’s room by the unassisted ear, and the defendant recorded conversations by using a cassette-type recorder with a standard microphone no more sensitive than the human ear, the defendant could not be found guilty of interception of an oral communication under the federal statute, 18 U.S.C. § 2510, et seq. Significantly, the State does not disagree with the explication of the law found in Carroll. The State merely tries to distinguish the facts of the instant case.

In Carroll there was no question of any contrivance by the defendant, and the defendant did not eavesdrop in a position where an individual would not normally be expected to be (referred to in cases as a “contrived position”), nor did he place any device in an unauthorized place. The court granted a motion to dismiss the indictments. The case involved an inconsequential partial overhearing through a connecting hotel room door of a competitor’s salesman.

|4The facts in Carroll are simple. While attending a convention in Washington, D, C., defendant Carroll was registered in a room without any knowledge of who was in the adjacent room. In fact, that room was being utilized by a business competitor as a hospitality suite for the convention. The rooms were connected by a door which was closed and locked but which did not prevent conversations in the hospitality suite from being heard by the unassisted ear in the defendant Carroll’s room. Carroll recorded conversations emanating from the room. At least one conversation recorded was part of a business telephone conversation from the hospitality suite. Carroll made the recordings by using a cassette-type recorder with a standard microphone, a device that was an inexpensive model generally available to the public and no more sensitive than the human ear. Carroll and his corporate employer were indicted for the interception of oral communications. The company and two other individuals were charged with using, disclosing, and endeavoring to use and disclose these intercepted conversations. All of the defendants were charged with conspiring to intercept, to use and to disclose the oral communications.

The Carroll court stated:

In order for the interception of an oral communication to constitute an offense under the statute, three elements must be established. First, there must be a willful “interception,” defined as the “aural acquisition of the contents of any ... oral communication through the use of any electronic, mechanical, or other device,” 18 U.S.C. 2510(4). Second, the oral communication must be uttered by a person exhibiting an expectation that such communication is not subject to interception, 18 U.S.C. 2510(2). And, third, the communication must be “under circumstances justifying such expectation [that the communication is not subject to |Binterception].” Id. It is the third element on which the motion to dismiss focuses in this case.
The facts being undisputed, the Court is called upon to specify the factors that must be taken into account in determining whether the circumstances justified an expectation of privacy. [Emphasis added.]

Id., 337 F.Supp. at 1262.

The Carroll court went on to reject several subjective tests of an “expectation of privacy” as being too problematic in favor of objective tests:

An objective test would begin by determining whether in fact the recorder heard the conversation unaided by any mechanical device. If such be the case, as it is in this instance, then the inquiry turns to whether the overhearing was contrived by the recorder in the sense that he placed his ear by trespass or otherwise, in an unusual or improper position. If, as in the present case, the recorder could and did hear unaided by an amplifying mechanical device and from an uncon-trived position, then it would appear that the Court should hold as a matter of law that the circumstances did not justify the expectation of privacy. [Emphasis added.]
This is a very narrow and unusual case. By stipulation, there is no question of contrivance by the recorder; he did not eavesdrop in a position where an individual would not normally be expected to be . In addition, there is no question of augmentation of the overheard conversation by means of an electronic device more sensitive than the human ear or by a device in an unauthorized place in order to pick up what could not be heard easily by an uncontriving hearer. And, lastly, it is conceded that the individual who did the recording could and did hear the conversation unaided by the mechanical device. If any of these issues were in doubt, factual questions would be present and, therefore, a trial might be necessary. It is only in the setting where there is no contrivance, no augmentation, and an admitted unaided overhearing that a purely objective test will be decisive. Thus the facts | fidemand as a matter of law that the Court hold there could not be an expectation of privacy under the circumstances of this particular case.
Thus the necessary third element to the crime of intercepting oral communications is missing. Since all the counts of the indictment depend upon the establishment of a private oral communication, all of the counts are defective. Defendants’ motion to dismiss the indictment, therefore, is granted.

Id., 337 F.Supp. at 1263-1264.

The Louisiana statute was modeled directly after the federal statute reviewed in Carroll. Great weight has been given to the interpretations of the federal act by courts of this state. Keller v. Armond, 98-844, 98-843 (La.App. 3 Cir. 12/23/98), 722 So.2d 1224. Significantly, as mentioned previously, the State does not disagree with the explication of the law found in Carroll. (See footnote # 3, ante.) The State only attempts to distinguish the facts of the instant case to show that Smith was in a “contrived position.”

The facts in this case are very similar to Carroll in that it was somewhat coincidental that Smith was outside the room when Jordan was interviewing Mathieu. Undoubtedly, there was a subjective expectation of privacy when Jordan interviewed Mathieu. Undoubtedly, there was a subjective “expectation of privacy” in Carroll, too, but the Carroll court rejected that as being too problematic a standard. It must be decided whether the expectation of privacy, viewed objectively, is justifiable under the circumstances. Kemp v. Block, 607 F.Supp. 1262, 1264 (D.C.Nev.1986). The expectation of privacy is one that society is prepared to recognize as reasonable. Id.

The reasoning in Carroll is applicable to this case. Smith could hear the conversation with his unaided ear and used no enhancing device. The State |7explicitly concedes that point in its brief. In fact, Smith did not even hold his ear or a glass to the door. Jordan and Mathieu were talking loud enough to be overheard. Smith testified without any attempt at contradiction that the voices that he overheard were loud and booming. Even where a person was where that person might ordinarily have an expectation of privacy, such expectation is not warranted when the person speaks too loudly. Holman v. Central Arkansas Broadcasting Co., 610 F.2d 542 (8 Cir.1979); Kemp v. Block, 607 F.Supp. 1262, 1265 (D.C.Nev.1985). For example, even in the proverbial “privacy of one’s home” society is not prepared to recognize as reasonable an expectation of privacy for words said so loudly that they can be heard, as the saying goes, by “the whole neighborhood.”

Applying the Carroll factors, we find that there is no question of augmentation of the overheard conversation by means of an electronic device more sensitive than the human ear. The State does not contend otherwise. Smith’s recorder being where he could lawfully be and hear cannot be said to have been placed there “in order to pick up what could not be heard easily by an uncontriving hearer.” Id., 337 F.Supp. at 1263. Smith, “the individual who did the recording could and did hear the conversation unaided by the mechanical device.” Id. The mechanical ear of the recorder is no different from the ear of a listener with a precise memory. United States v. Santillo, 507 F.2d 629 (3 Cir.1975).

Smith was lawfully present in the hall. The presence of people in the hallway was neither unusual nor unexpected. On the other side of the hallway opposite the interview rooms were a series of phone bays, from which the only reasonable inference is that it was anticipated and expected that there would be a number of individuals in that hallway who might have need of telephonic services. In addition to those who might be using the phones, Smith testified without any |sattempt at contradiction by the State that there was another person waiting in the hallway at the same time he was. Smith guessed that this other person was “an attorney waiting to see a client.” There is no reason to believe that the presence of Smith and others merely waiting is in any way unusual, and the State does not suggest that it is. Thus it can be said, following the reasoning in Carroll, that Smith was not in a “in a position where an individual would not normally be expected to be.”

The State does not argue that Smith had no right to be in the hallway — a hallway consisting on one side of a series of doors opening into interview rooms and on the other side, a series of phone bays. Instead, the State’s argument is that-it was unnatural for Smith to be in that portion of the hallway opposite the door to the interview room where Jordan was interviewing Mathieu. However, implicit in the State’s argument is that it was appropriate for Smith to stand in the hallway opposite any other interview room, just not the one in question. This is obviously an untenable proposition. Also implicit in the State’s argument is the equally untenable proposition that it would have been appropriate for anyone else to stand opposite the door in question, i.e., implicit in the State’s argument is the suggestion that there would not have been anything wrong with anyone not interested in the matter to stand outside the door where they could overhear Jordan and Mathieu. The State does not point to any rule or regulation stipulating where individuals must stand in the hallway, upon which rule or regulation the occupants of a given interview room could base an expectation that no one would be in the hallway outside of the door. The fallacy of the State’s reasoning on this issue becomes even more obvious when applied to the facts in the Carroll case. Because it cannot be denied that Smith had a right to be in the hallway outside the interview rooms in |9the instant case, if we apply the State’s reasoning in the instant case to the Carroll case, it would lead to the absurd result that the hotel occupants in Carroll had an expectation of privacy that only applied to business competitors as though the walls of the hotel room could be expected to provide selective soundproofing.

The important thing in the instant case is that the State has conceded that Smith could hear the voices in the room unaided and without putting his ear up against the door. Had Smith sneaked past a guard to gain entrance to the hallway, or had he climbed up on a window ledge (had there been one), or had he used a recording device capable of picking up sounds inaudible to the human ear, the State would have a much stronger argument.

The fact that there 'may have been a prohibition against bringing a recorder into the facility without prior authorization is not germane to La. R.S. 15:1303, pursuant to which Smith was charged. The issue under the statute is whether the hearer was where he had a right to be and hear unaided by a mechanical device and whether the recording device could record more than the hearer could hear unaided. As we find that Smith was where he had a right to be and hear (he is not required to wear earplugs) and his recorder could record no more than what could be heard unaided by the human ear (the State does not contend otherwise on appeal), we find no error in the judgment of the trial court. Accordingly, we find no merit in the State’s sole assignment of error and, therefore, affirm the judgment of the trial court.

AFFIRMED.

      . La. R.S. 15:1303 provides in pertinent part:
      Interception and disclosure of wire, electronic, or oral communications
      A. Except as otherwise specifically provided in this Chapter, it shall be unlawful for any person to:
      (1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire or oral communication;
      (2) Willfully use, endeavor to use, or procure any other person to use or endeavor to use, any electronic, mechanical, or other device to intercept any oral communication when:
      (a) Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
      (b) Such device transmits communications by radio or interferes with the transmission of such communication;
      (3) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Subsection; or
      (4) Willfully use, or endeavor to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Subsection.

      . Other charges appear on the indictments in the record, but those counts were charged in separate cases which are not the subject of this appeal.

      . The State in brief stated: "The state concedes that La. R.S. 15:1303 is based upon the federal statute, and has no disagreement with the Carroll court’s finding that the key issue in that case was whether there was an objectively reasonable expectation of privacy in conversation.”

      . Italics original.

      . Italics original.


author: JjTERRI F. LOVE, Judge.

text:
    Richard LORUSSO and Joann Lorusso v. LANDRIEU ENTERPRISES, INC., d/b/a Landrieu Brothers Home Improvement.
    No. 2002-CA-2346.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Peter N. Freiberg, Jones, Verras & Freiberg, L.L.C., New Orleans, LA, for PlaintiffiAppellant.
    Harry T. Hardin, III, Mendoza & Hardin, Harvey, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   JjTERRI F. LOVE, Judge.

This case arises out of a contractual dispute wherein the appellants, Richard and JoAnn Lorusso (“Lorusso”), sought to enforce their right to arbitration against Landrieu Enterprises, Inc. d/b/a Landrieu Brothers Home Improvement (“Lan-drieu”). Lorusso appeals the trial court’s dismissal of their Petition to Compel Arbitration and the vacating of an ex-parte order to compel arbitration For the reasons assigned below, we reverse.

FACTS AND PROCEDURAL HISTORY

Lorusso entered into a contract with Landrieu to renovate and construct an addition to their home in New Orleans in August of 1999. The contract contained an arbitration clause, which stated:

In the event that satisfactory completion is not delivered or there is any other grievance by customer or contractor, an arbitrator will be selected who will determine a resolution. Each party agrees to adhere to the final ■ determination of the arbitrator.

The contract did not provide for unilateral termination. As the project progressed, Lorusso made payments to Landrieu at regular intervals. From this point, the facts are disputed. Lorusso contends Lan-drieu walked off the job, prior 12to completion, after he was paid a $20,000 progress payment in March of 2000. Lorusso also claims that Landrieu failed to pay subcontractors prior to leaving the job. Consequently, the subcontractors filed claims against Lorusso seeking payment for services rendered. As a result, Lorusso attempted to enforce his right to arbitrate by sending two separate certified letters to Landrieu, which requested that the matter be submitted to arbitration. Landrieu was unresponsive to Lorusso’s attempts to submit the dispute to arbitration. Landrieu claims that both parties’ mutually agreed to terminate the construction contract based on the parties deteriorating work relationship. Landrieu also maintains that Lorusso agreed to terminate the contract so that he could hire his own subcontractors to finish the construction job. Therefore, the $20,000 payment was a final payment. Landrieu denied receiving either of the certified letters demanding arbitration sent by Lorusso. Lorusso filed a Petition to Compel Arbitration, which was denied by the trial court without oral or written reasons. The trial court also vacated an ex-parte order to compel arbitration.

Lorusso subsequently filed this appeal alleging the trial court erroneously dismissed the Petition to Compel Arbitration and the ex-parte order to compel arbitration. Lorusso presents two assignments of error before this court. First, we must determine whether the contract contained an enforceable arbitration clause. Second, we must determine whether the trial court erred in the dismissal of the Petition to Compel Arbitration and vacating the ex-parte order to compel arbitration.

LAW AND DISCUSSION

| sUnder the Louisiana Arbitration Law, La. R.S. 9:4201 et seq., an arbitration provision “in any contract” to settle by arbitration a controversy thereafter arising out of the contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” La. R.S. 9:4201.

When a party petitions a court for an order directing arbitration, the court “upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue ... shall issue an order ... to proceed to arbitration ...” La. R.S. 9:4203.

The determination as to whether to stay or compel arbitration is a question of law. Hennecke v. Canepa, 96-0772 (La.App. 4 Cir. 5/21/97), 700 So.2d 521. The standard of appellate review of questions of law is to determine whether the trial court was legally correct or legally incorrect. Cange losi v. Allstate Insurance Co., 96-0159, p. 3 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360. If the trial court’s decision was based on its erroneous interpretation or application of law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court. Conagra Poultry Co. v. Collingsworth, 30,155, p. 2 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280, 1281-1282.

DID THE CONTRACT CONTAIN AN ENFORCEABLE ARBITRATION CLAUSE?

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art.1906. The parties must have the capacity to contract and give their consent freely for a certain object, and the contract must have a lawful purpose. “Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in Lwriting, or by action or inaction that under the circumstances, is clearly indicative of consent.” La. C.C. art.1927.

A contract can be modified, abrogated or nullified by mutual consent only. La. C.C. art.1983. Modification can be presumed by silence, inaction or implication. Wise v. Lapworth, 614 So.2d 728, 731 (La.App. 5 Cir.1993). However, once the contract is confected, one party cannot unilaterally modify its terms. River Oaks, Inc. v. Blue Cross of Louisiana, 595 So.2d 785, 787 (La.App. 5 Cir.1992).[W]ritten contracts for construction may be modified by oral contracts and by the conduct of the parties, and this is true even when the written contract contains the provision that an owner is liable only if the change orders are in writing. Pelican Electrical Contractors v. Neumeyer, 419 So.2d 1, 5 (La.App. 4 Cir.1982). Therefore, we must look to the facts in order to determine whether there were oral agreements, which modified the written contract.

The parties do not dispute the signing of a valid written contract to construct an addition to the Lorusso’s home. Lorusso contends that the trial court’s failure to order arbitration in the face of the arbitration clause violated the Louisiana Arbitration Law, La. R.S. 9:4201 et seq.

At the hearing on the matter, Lorusso testified that both he and Landrieu were instrumental in writing the arbitration clause. After agreeing on the appropriate language, the parties signed the contract. Lorusso also testified that Landrieu called him and stated he could no longer work with him on the project. Lorusso stated he informed Landrieu that the contract did not provide for unilateral termination and he did not consent to the termination of the contract. Furthermore, the record is devoid of any evidence, which supports an oral modification of the written contract that would allow unilateral termination of the written contract. |K Specifically, there is no indication in the record that the parties mutually agreed to terminate the contract. In fact, Lorusso’s testimony contradicts any such proposed mutual agreement as contended by Landrieu. Additionally, Lorusso testified that he attempted to initiate the arbitration process when he sent two certified return receipt letters to Landrieu. The first letter dated January 28, 2002 was submitted into evidence and the signed return receipt was attached. Lorusso testified that he misplaced the return receipt for the second letter dated March 12, 2002. Both of the letters acknowledge not only Landrieu’s failure to fulfill its contractual obligation to complete the construction job, but also its failure to arbitrate any dispute between the parties according to the terms of the contract. Landrieu testified that he never received the letters. Even so, due to the lack of a provision, which allowed unilateral termination of the contract or mutual consent of the parties to terminate the contract, we find the contract between the parties was not terminated. Thus, the contract was in effect at the time Lorusso attempted to avail himself of the arbitration clause. Therefore, the arbitration clause that the parties co-authored is valid and enforceable.

DID THE TRIAL COURT ERR IN THE DISMISSAL OF THE PETITION TO COMPEL ARBITRATION?

Lorusso also contends that because the contract clearly includes an arbitration clause and there is no assertion that the contract is unenforceable, the matter should have been submitted to an arbitrator for resolution.

This court has held that in cases where “the parties have contracted to submit all disputes to arbitration, then the determination that the contract is valid will necessarily suffice to require enforcement of the arbitration clause.” However, if the parties’ agreement to arbitrate is limited to particular issues or types of | (¡disputes, the language of 9:4202 expressly requires the court, rather than the arbitrator, to further determine whether the particular issue in dispute is within the scope of the arbitration clause. Metro Riverboat Associates, Inc. v. Bally’s Louisiana, Inc., 1997-1672, p. 5-6 (La.App. 4 Cir. 1/14/1998), 706 So.2d 553, 556-557.

Neither the answering of a judicial demand nor the delay in filing the demand for arbitration necessarily constitutes a waiver of the right to demand arbitration, especially in the absence of prejudice to the opposing party. Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756, 757 (La.1982). Waiver of arbitration is not a favored finding and there is a presumption against it. Rauscher Pierce Refsnes, Inc. v. Flatt, 632 So.2d 807, 810, p. 5 (La.App. 4 Cir.1994). Waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party. Id. A party asserting waiver bears a heavy burden of proof to show that the opponent has waived a contractual right to arbitrate. Electrical Instrumentation Unlimited v. McDermott, 627 So.2d 702 (La.App. 4 Cir.1993). “Seeking relief from the court before demanding arbitration is not determinative of whether the right to demand arbitration has been waived, but is only a factor to be considered.” Electrical Instrumentation Unlimited, 627 So.2d at 703.

The language of the arbitration clause contained in the contract provides that if the construction is not completed or “any other grievance” should arise, then the dispute would be submitted to an arbitrator. (Emphasis added).

Landrieu argues an attempt to arbitrate was not made by Lorusso until two years after the contract was allegedly terminated. This court does not find Lorusso’s delay in filing a demand for arbitration constituted a waiver of his right |7to demand arbitration. Conversely, although Lorusso did not demand arbitration until two years after the dispute arose, he did not act in a manner inconsistent with his claim of entitlement to the arbitration process. Lorusso acted in accordance with the terms of the contract and sent two certified letters to Landrieu, which demanded the dispute be submitted to an arbitrator. Landrieu was unresponsive to these attempts. We find that Landrieu failed to bear the burden of proof of showing that Lorusso waived his contractual right to arbitrate. Moreover, the language “any other grievance” contained in the arbitration clause leads us to believe that both parties explicitly agreed to arbitrate all disputes.

Accordingly, we reverse the findings of the trial judge on the dismissal of Lorus-so’s Petition to Compel Arbitration as well as vacating the ex-parte order to compel arbitration. The order to compel arbitration is hereby reinstated.

REVERSED AND REMANDED.

      . An ex-parte order was signed by Judge Roland Belsome on March 26, 2002.


author: | .PATRICIA RIVET MURRAY, Judge.

text:
    Randall MARSHALL v. FIRST BANK & TRUST and First National Bank of Commerce.
    No. 2002-CA-2450.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Robert J. Young, III, Michael G. Morales, Young, Richaud & Myers, New Orleans, LA, for Plaintiff/Appellant.
    Gregory J. St. Angelo, August J. LaNa-sa, Philip J. LaNasa, La Nasa, St. Angelo & La Nasa, L.L.C., New Orleans, LA, for Defendant/Appellee.
    Stephen Guy deLaup, S. Guy deLaup, APLC, Metairie, LA, for Defendant/Appel-lee, Cheryl Jennings.

      Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR.
   | .PATRICIA RIVET MURRAY, Judge.

This is a customer’s suit against a bank for damages allegedly resulting from the bank’s failure to honor the customer’s request to stop payment on the bank’s cashier’s check. The customer appeals the trial court’s judgment granting summary judgment in favor of the bank. We affirm.

FACTS

On April 27, 1997, Randall Marshall redeemed various certificates of deposit at First Bank & Trust (FBT), and requested and received a cashier’s check for $113,988.28 made payable solely to him. Mr. Marshall placed the check in his home desk drawer. Shortly thereafter, he and his wife, Cheryl Jennings Marshall (“Ms.Jennings”), physically separated and commenced divorce proceedings. On June 25, 1997, Mr. Marshall’s housekeeper informed him that Ms. Jennings had taken the cashier’s check from his desk drawer and absconded with it.

The following day, Mr. Marshall went to FBT and requested that a “stop payment” order be issued because the cashier’s check was missing, lost, or stolen. Following the instructions an FBT employee gave him, Mr. Marshall completed an “Indemnity Agreement for Missing Instrument,” had it notarized, and returned it to FBT. According to Mr. Marshall, an FBT employee instructed him to return in |2ninety days at which time the bank would issue him a replacement check and assured him that the original cashier’s check would be flagged and that it would not be paid or clear the bank.

On July 5, 1997, Ms. Jennings endorsed the cashier’s check for deposit into a joint checking account that she maintained with Mr. Marshall at First National Bank of Commerce (“FNBC”). Although Ms. Jennings endorsed only her name to the check, which was payable to Mr. Marshall, FNBC supplied Mr. Marshall’s missing endorsement. On July 7,1997, FBT accepted the cashier’s check from FNBC and credited FNBC’s account for the amount of the cashier’s check, $113,988.28. On that same date, Ms. Jennings withdrew $57,000 from the FNBC joint account. On September 18, 1997, she withdrew the remaining money in that account, which totaled $57,059.28. Mr. Marshall claims these actions were done without his knowledge and that during that time period the FNBC joint account statements were being mailed to a closed post office box.

Meanwhile, on October 7, 1997, Mr. Marshall returned to FBT to obtain a replacement check since the ninety-day waiting period had elapsed. Although FBT issued a replacement cashier’s check, on October 9, 1997, FBT verbally informed Mr. Marshall that the replacement check could not be converted, endorsed, or otherwise cashed because FBT had placed a stop payment order. On October 10, 1997, FBT returned the original cashier’s check to FNBC by correspondence stating it was “lacking proper endorsement” and that its customer claimed he did not deposit this item. On October 21, 1997, FNBC responded that the account in |swhich the cashier’s check was deposited was a joint account entitled Randall L. Marshall “or” Cheryl J. Marshall and that the check was endorsed by Cheryl Marshall and deposited into that account. The instant lawsuit followed.

In this suit, Mr. Marshall asserts essentially two claims against FBT: a Uniform Commercial Code claim for failure to hon- or his request to stop payment on the cashier’s check and a detrimental rebanee claim under La. C.C. art.1967. Granting FBT’s motion for summary judgment, the trial court found that FBT was contractually obbgated to pay the cashier’s check presented by FNBC despite Mr. Marshall’s claim that the check was lost or stolen, reasoning:

Under the Uniform Commercial Code, FBT was justified in not stopping payment on the cashier’s check despite Mr. Marshall’s request because he breached the Indemnity Agreement by indorsing the cashier’s check. Mr. Marshall had signed a depositor’s agreement with FNBC appointing FNBC a mandatory of Mr. Marshall such that it could supply his missing indorsement on any item deposited into his joint checking account, provided that the item was made payable to either of the two joint account holders. This court previously upheld the language of that depositor’s agreement and granted summary judgment to FNBC on that basis. Thus, the court finds that since Mr. Marshall's signature was supplied via a lawfully executed Power of Attorney, or contract of mandate, Mr. Marshall has no claim, under law, against FBT.

The trial court likewise rejected Mr. Marshall’s detrimental reliance claim, reasoning:

Absent from the plaintiffs claims is the “detriment” component. As part of the community property settlement with his ex-wife, Cheryl Jennings Marshall, the plaintiff received full benefit of the proceeds of the cashier’s check and used said proceeds as valuable consideration in the settlement of Cheryl Jennings Marshall’s community property claim. Accordingly, this court is of the opinion that Mr. Marshall did not lose the value of the cashier’s check because that was the value he received in his divorce settlement in which he allowed his ex-wife to keep “all movables currently in her possession.” Furthermore, if plaintiff were to receive an additional payment from FBT, he would [4be unjustly enriched, in contravention to La. C.C. art. 2298. Thus, the court finds that Mr. Marshab did not suffer any detriment. He has already [been] paid the money the money he now seeks from FBT. This appeal followed.

DISCUSSION

On appeal, the standard of review of a trial court’s decision granting summary judgment is de novo. Shelton v. Standard/700 Associates, 2001-0587, p. 5 (La.10/16/01), 798 So.2d 60, 64-65; Doerr v. Mobil Oil Corp., 2000-0947, p. 27 (La.12/19/00), 774 So.2d 119, 136; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. We ask the same questions as the trial court asked; namely: whether there is any genuine issue of material fact, and whether the mover-appellee is entitled to judgment as a matter of law. In answering these questions, we are guided by the Legislature’s admonition that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action” and that “[t]he procedure is favored and shall be construed to accomplish these ends.” La. C. Civ. Pro. art. 966(A)(2).

Based on our de novo review of the record, we find the trial court correctly concluded that FBT was entitled to summary judgment and thus affirm the trial court. In so doing, we separately address each of Mr. Marshall’s two claims.

UCC CLAIM

The applicable Louisiana UCC provision that governs lost, destroyed, or stolen cashier’s checks is La. R.S. 10:3-312, which provides:

I A- claimant [ie., one who claims the right to receive the amount of a cashier’s check that was lost, destroyed, or stolen] may assert a claim to the amount of a [cashier’s] check by a communication to the obligated [issuer] bank describing the check with reasonable certainty and requesting payment of the amount of the check, if (i) the claimant is ... the re-mitter or payee of a cashier’s check ... (ii) the communication contains- or is accompanied by a declaration of loss of the claimant with respect to the check, (iii) the communication is received at a time and in a manner affording the bank a reasonable time to act on it before the check is paid, and (iv) the claimant provides reasonable identification if requested by the obligated bank. Delivery of a declaration of loss is a warranty of the truth of the statements made in the declaration.

La. R.S. 10:3-312(b)(emphasis supplied).

A “declaration of loss” is further defined to mean:

[A] written statement, made under penalty of perjury, to the effect that (i) the declarer lost possession of a check, (ii) the declarer is ... the remitter or payee of the check, in the case of a cashier’s check ... (iii) the loss of possession was not the result of a transfer by the declarer or a lawful seizure, and (iv) the declarer cannot reasonably obtain possession of the check because the check was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

La. R.S. 10:3-312(a)(3). Section 312 further provides that a claim asserted in compliance with the above rules is subject to the following additional rules:

(1) The claim becomes enforceable at the later of (i) the time the claim is asserted, or (ii) the ninetieth day following the date of the check, in the case of a cashier’s check....
(2) Until the claim becomes enforceable, it has no legal effect and the obligated bank may pay the check.... Payment to a person entitled to enforce the check discharges all liability of the obligated bank with respect to the check.

La. R.S. 10:3-312(b).

Illustrating the operation of this section, the official comments to La. R.S. 10:3-312 provide several examples; the one most pertinent to the instant case is as follows:

|fi3. A claim asserted under subsection (b) does not have any legal effect, however, until the date it becomes enforceable, which cannot be earlier than 90 days after the date of a cashier’s check_Thus, if a lost check is presented for payment within the 90-day period, the bank may pay a person entitled to enforce the check without regard to the claim and is discharged of all liability with respect to the check. This ensures the continued utility of cashier’s checks ... as cash equivalents. Virtually all such checks are presented for payment within 90 days.

In this case, Mr. Marshall acknowledges that under La. R.S. 10:3-312(b) FBT had the right to pay a person entitled to enforce the cashier’s check at any time before the ninety-day period elapsed. However, he contends that Ms. Jennings was not such a person. He emphasizes that he put FBT on notice on June 26, 1997, that Ms. Jennings had stolen the cashier’s check and that FBT had actual notice that she was not a person authorized to enforce the check. He further claims that she was not his mandatory and had no authority to endorse the cashier’s check, which was made payable solely to him. He also argues that the trial court erred in relying on his breach of the Indemnification Agreement as a basis to enforce the cashier’s check. He contends that when he reported the cashier’s check missing and signed the Indemnification Agreement, the check was not endorsed, and Ms. Jennings subsequent endorsement cannot be attributed to him.

FBT counters that FNBC was a party entitled to enforce the check and that its payment of the cashier’s check to FNBC discharged its liability. FBT points out that FNBC’s right to enforce the check, as the trial court held, was based on the language of Mr. Marshall’s depositor’s agreement with FNBC. The depositor’s agreement appointed FNBC as Mr. Marshall’s mandatory such that it could supply his missing endorsement on any item deposited into his joint checking account, provided the item was payable to either of the two joint account holders. FBT Largues that it was legally bound to pay FNBC. FBT further argues that if it had not paid FNBC, then FNBC could have brought an action against FBT, and FBT would have been entitled to seek indemnity from Mr. Marshall under the terms of the Indemnity Agreement.

We find FBT’s arguments persuasive. Although Mr. Marshall did not endorse the cashier’s check directly, he did so indirectly by maintaining the joint account with his estranged wife and by authorizing FNBC to supply his missing endorsement for deposits into that joint account. Moreover, he, in effect, obtained payment of the check as a result of it being deposited into the FNBC joint account that he and Ms. Jennings co-owned. Also, because the check was endorsed and deposited into that joint account, Mr. Marshall violated the Indemnification Agreement he signed when he requested that payment be stopped. The purpose of indemnification agreements in general, as FBT points out, is to avoid the risk of having to make double payment. That is exactly the result Mr. Marshall seeks to obtain. However, as the trial court correctly recognized, if Mr. Marshall were to obtain an additional payment from FBT, he would be unjustly enriched in violation of La. C.C. art. 2298, which provides that “[a] person who has been enriched without cause at the expense of another person is bound to compensate that person.”

[sIn sum, we find that FNBC was a party entitled to enforce the check and that FBT’s payment of the check to FNBC discharged its obligation with respect to the check.

DETRIMENTAL RELIANCE

Mr. Marshall alternatively asserts that his main cause of action against FBT is based on detrimental reliance. The concept of detrimental reliance is codified in La. C.C. art.1967, which provides:

Cause is the reason why a party obligates himself.

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

La. C.C. art.1967.

The trial court found that Mr. Marshall suffered no “detriment” because of the Consent Judgment between him and Ms. Jennings. Mr. Marshall contends that this was incorrect because at the time he entered into the Consent Judgment he did not have possession of the cashier’s check or its value and that this was a “detriment.”

We cannot say that the trial court’s factual finding that Mr. Marshall did not suffer a detriment was manifestly erroneous. Mr. Marshall not only received the full benefit of the value of the check in the Consent Judgment, but also effectively received payment by the deposit of that check into his joint account at FNBC. As explained above, to allow Mr. Marshall to recover again from FBT would result in an unjust enrichment. The trial court correctly rejected Mr. Marshall’s detrimental reliance claim.

\ DECREE

For the foregoing reasons, we affirm the trial court judgment.

AFFIRMED.

      . For purposes of its motion for summary judgment, FBT admitted its employees told Mr. Marshall that payment would be stopped on the cashier’s check.

      . FNBC supplied the missing endorsement pursuant to its depositor’s agreement with Mr. Marshall, which authorized it to do so for any item that was payable to either spouse that was deposited into their joint account. Particularly, the rules governing joint "or” accounts provide, inter alia, that "[a]ny item made payable to one or more of the owners may be deposited into the account by us [FNBC] or by anyone else, and we have the right to supply the endorsement for deposit to the account.”

      . The trial court quotes the Consent Judgment, which provides that "petitioner, Cheryl Jennings Marshall, shall receive as her share of community property all movables currently in her possession.”

      . Mr. Marshall cites La. R.S. 10:3-411 for the proposition, that FBT was not obligated to pay the cashier’s check to FNBC. That provision, however, governs disputes over a bank’s refusal to pay a cashier’s check. The instant case involves a dispute over FBT’s payment of the cashier’s check. The applicable provision, therefore, is La. R.S. 10:3-312.

      . Under that agreement, Mr. Marshall agreed to the following:
      [TJhat said instrument was not endorsed, negotiated, sold, assigned, transferred or deposited under any agreement or subjected to any hypothecation, lien or pledge, or in any other manner disposed of by separate assignment or otherwise, and the undersigned agree that if the said instrument is located, it will not be endorsed or negotiated in any manner but will be immediately delivered to First Bank and Trust for cancellation without value.

        In consideration of the issuance of a replacement instrument or the refund of the amount involved to the undersigned, the undersigned hereby indemnifies and agrees to save and hold First Bank and Trust harmless against all claims, damages, actions, proceedings, demands, losses and liability, whether groundless or otherwise, including all expenses of or on account of the issuance of a replacement instrument or the refund of the amount thereof.


author: |, JOAN BERNARD ARMSTRONG, Judge.

text:
    GUISE SHEET METAL COMPANY, INC. v. LA QUINTA DEVELOPMENT PARTNER, L.P., A Texas Corporation, Brice Building Company, Inc., La Quinta Inns, Inc., Tower Mechanical Contractors, Inc., and American Home Assurance Company.
    No. 2002-CA-2515.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Roger C. Linde, Thomas F. Gardner, Douglas A. Kewley, Mary Ann Darr Weg-mann, Gardner & Kewley, Metairie, LA, for Plaintiff/Appellee.
    Bruce C. Butcher, Corinne Van Dalen, Law Office of Bruce C. Butcher, New Orleans, LA, and David R.M. Williams, Me-tairie, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR., and Judge LEON A. CANNIZZARO JR.).
   |, JOAN BERNARD ARMSTRONG, Judge.

This is an action for nullity of a default judgment. The nullity action was dismissed as untimely. The plaintiff in the nullity action appeals. Because we do not believe that we can determine, without an evidentiary record, whether or not the nullity action was timely filed, we will remand for an evidentiary hearing.

Guise Sheet Metal Company, Inc. (“Guise”) filed suit against Towers Mechanical Contractors, Inc. (“Towers”) for certain amounts allegedly due, plus a statutory penalty, in connection with a construction project. Guise confirmed a default judgment against Towers. A Notice of Signing of Judgment as to the default judgment, dated March 16, 2001, was sent to Towers.

Guise proceeded with two garnishment actions, the first filed August 9, 2001 and the second filed February 7, 2002, against Towers’ bank account. Towers alleges that, some time after the second garnishment, it discovered facts that it alleges constitute “fraud and ill practice” in connection with the default judgment. Towers filed the present action for nullity, seeking to have the default judgment 1 ^annulled, pursuant to Article 2004 of the Code of Civil Procedure, on the basis of alleged “fraud and ill practice,” on April 12, 2002.

Article 2004 provides, in pertinent part:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

“Fraud and ill practices” is a term of art, no actual fraud or intentional wrongdoing need be involved. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1988). Under Article 2004, even an innocent mistake that leads to an improper judgment may be grounds for nullity. Id.

The only issue before us at present is whether the present action for nullity was filed timely. This action was filed a little over one year from the March 16, 2001 date of the Notice of Judgment. However, the operative date to start the running of the applicable one-year period is the date of the discovery of the fraud or ill practice. La.Code Civ. Proc. Art. 2004(B). Towers argues that it did not know of the fraud or ill practices until some time after the February 2002 garnishment action and that it filed the present nullity action less than two months later on April 12, 2002. Guise argues that, assuming that Towers was familiar with the contents of and attachments to Guise’s original petition against Towers, that Towers “must have” known of that alleged fraud and ill practice as soon as it received that March 16, 2001 Notice of Judgment.

IsThe issue of when Towers knew of the alleged fraud and ill practice is a factual issue. The resolution of such a factual issue requires an evidentiary record. We cannot determine factual issues based upon arguments of counsel. Therefore, we must remand so that there can be an evidentiary hearing and findings of fact and a judgment by the trial court.

For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings.

REVERSED AND REMANDED.


author: | .MAX N. TOBIAS, JR., Judge.

text:
    Maxine THOMAS v. PROCTOR & GAMBLE-La Folger Coffee.
    No. 2003-CA-0061.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.

      Rodney Kelp Littlefield, New Orleans, LA, for Plaintiff/Appellant, Maxine Thomas.
    Douglas S. Scotti, Dominic J. Gianna, Middleberg, Riddle & Gianna, New Orleans, LA, for Defendani/Appellee.
    (Court Composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge DAVID S. GORBATY).
   | .MAX N. TOBIAS, JR., Judge.

Maxine Thomas appeals a judgment of the Office of Workers’ Compensation Administration denying her claims for workers’ compensation benefits with prejudice. Although the appellant on appeal assigns two errors, we discuss only the assignment relating to a succeeding signing the judgment in place and stead of the judge who heard the evidence. Therefore, we preter-mit a discussion of the underlying facts of the present case, vacate the judgment of the administrative law judge, and remand for further proceedings.

The record on appeal reflects the following:

The trial of the present case was held on 8 May 2002 before Workers’ Compensation Judge Clara E. Toombs. At the end of the trial, Judge Toombs took the matter under advisement and ordered that post-trial memoranda of law be submitted within five working days. On 23 August 2002, Judge Toombs resigned as a judge prior to rendering a judgment or assigning any reasons for any judgment. On 18 September 2002 at Baton Rouge, Dan Boudreaux, Director/Assistant Secretary of the Louisiana Department of Labor, Office of ^Workers’ Compensation Administration, appointed Judge Sheral C. Kellar as successor to Judge Toombs. On 18 September 2002, Judge Kellar signed a judgment dismissing Ms. Thomas’ claim with prejudice. A notice of judgment required by La. C.C.P. art.1913 was mailed by Judge Kellar on 20 September 2002. On 10 October 2002, Ms. Thomas’ suspensively appealed the judgment.

La. R.S. 13:4209 states:

A. In all cases heard and taken under advisement of the district judge or judges of the city courts, if the judge before whom a case is tried dies, resigns, or is removed from office, or if his term expires before rendering his judgment in the case, his successor in office shall decide the case from the evidence in the record, if all of the testimony is in writing. If it is a case in which the testimony has not been reduced to writing, the succeeding judge shall decide the case from a statement of the facts, if one is found in the record, or if the parties to the suit agree upon a statement of facts. If the testimony is not in the record, and there is no statement of facts, the case shall be tried de novo. B. (1) In cases which are heard and in which judgment is rendered, but not signed, whether the case was taken under advisement or not, if the judge who rendered the judgment dies, resigns, or is removed from office, or if his term expires before signing the judgment in the case, his successor in office shall have the authority to sign a judgment which conforms with the judgment rendered.
(2) If a prior judge has stated an affirmative intent to sign a judgment and failed to do so for whatever reason, the successor judge is empowered to sign the judgment

We hold that La. R.S. 13:4209 applies to cases tried before an administrative law judge such as Judge Kellar. Employers Nat. Ins. Co. v. Workers’ Compensation Second Injury Board, 95-1756 (La.App. 1 Cir. 4/4/96), 672 So.2d 309; Bass v. National Maintenance Corp., 95-0367 (La.App. 1 Cir. 12/15/95), 665 So.2d 782; Ramogasse v. Lafitte Welding Works, 93-682 (La.App. 5 Cir. 12/13/95), 666 So.2d 1176; Ridlen v. St. Charles Manor Nursing Center, Inc., 94-275 (La.App. 5 Cir. 10/12/94), 644 So.2d 244. Further, we understand that the statutory mandate is met only when the trial judge has before him or her the evidence, i.e., testimony and exhibits, that the previous judge received in evidence. Id.; see also, Quarles Drilling Corp. v. General Acc. Ins. Co., 520 So.2d 475, 476 (La.App. 4 Cir.1988). Nothing in the record before us indicates (a) that Judge Toombs rendered a judgment before she resigned on 23 August 2002 or (b) that Judge Kellar reviewed any evidence that Judge Toombs heard. If Judge Kel-lar reviewed any evidence that Judge Toombs heard, she was required to state that she was complying with La. R.S. 13:4209; if such appeared of record, the judgment would be valid and ripe for purposes of appellate review. Polozola v. Garlock, 376 So.2d 1009, 1011 (La.App. 1 Cir.1979).

It is readily apparent from the record that the testimony in this case was not transcribed by a court reporter until after Ms. Thomas filed her motion for appeal. |4 Although it is possible that Judge Kellar listened to a tape recording of the trial held before Judge Toombs, nothing in the record on-appeal exists upon which to base such a conclusion. Reinforcing the inference that Judge Kellar did not evaluate the evidence submitted at trial are: (a) Judge Toombs’ failure to state any intent to render a judgment for either party; (b) an absence of any reasons for judgment being assigned by Judge Toombs after she .took the matter under advisement; (c) Judge Kellar’s failure to assign oral or written reasons for judgment; (d) the fact that the judgment was signed on the same day that Judge Kellar was appointed the successor judge; and (e) the fact that the judgment was obviously prepared for the signature of Judge Toombs yet signed by Judge Kellar.

We are required to decide whether a trial judge’s decision is manifestly erroneous or clearly wrong. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Alexander v. Pellerin Marble & Granite, 93 1698 (La.1/14/94), 630 So.2d 706. We cannot do so until a trial judge has rendered a judgment upon evidence that the trial judge has actually heard and or reviewed. La. R.S. 23:1310.5(A). See also, Darensbourg v. The Great Atlantic and Pacific Tea Company, Inc., 94-0761 (La.App. 1 Cir. 11/9/95), 665 So.2d 35, 37; Ledoux v. Southern Farm Bureau Casualty Insurance Compnay, 337 So.2d 906, 908 (La.App. 3 Cir.1976). Accordingly, we are required to and do hereby vacate the 18 September 2002 judgment and remand this matter to the trial court for further proceedings consistent with this opinion.

VACATED AND REMANDED.

      . The precise language of the judgment signed by Judge Kellar states, in pertinent part:
      This cause came on to be heard on the 8th day of May, 2002 for a duly noticed trial on the merits ....
      * * *
      After considering the evidence, the pleadings, post-trial memoranda and the applicable law, the court is of the opinion that claimant’s injury was not a result of an accident, but a giving away of the knee, which is not job-related....

      READ, RENDERED AND SIGNED at New Orleans, Louisiana on the 18th day of September, 2002.

        [signed] Sheral C. Kellar

      Clara E. Toombs, Workers’ Compensation Judge Eastern Division
      [Emphasis supplied.]


author: JjLEON A. CANNIZZARO, JR., Judge. | ¡ARMSTRONG, J.,

text:
    STATE of Louisiana v. Harold O. BROWN.
    No. 2003-K-0568.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Harold O. Brown, Kinder, LA, Relator, Pro Se.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

Relator filed a writ of mandamus in this Court alleging that he filed motions for the production of his Boykin and sentencing hearing transcripts in cases 373-817 G. and 397-314 C, as well as his multiple bill hearing transcript in case 397-314 C.

In case 373-817 G, relator pled guilty to possession of cocaine on July 12, 1995. The State filed a multiple offender bill of information to which the defendant pled guilty. The trial court sentenced him to serve two and one-half years at hard labor with credit for time served. Relator has served the sentence for the 1995 conviction. He is now incarcerated in connection with another matter.

In State ex rel. Simmons v. State, 93-0275, 94-2630, 94-2879 (La.12/16/94), 647 So.2d 1094, the Louisiana Supreme Court held that “indigent inmates” must be provided with certain documents, including Boykin transcripts, free of charge, even though they have not shown a particularized need for the documents. This Court has relied on Simmons as support for ordering the trial court to provide an indigent inmate with Boykin transcript(s) regardless of the date of the conviction or the basis of the indigent inmate’s underlying incarceration. Although the word “inmates” is qualified only by the word “indigent,” Simmons must be read to [.¡include only those inmates who are incarcerated for the crime to which the documents pertain. An inmate, who has served his or her sentence for the crime to which the requested documents pertain, should not be entitled to free documents in connection with that crime absent a showing of a particularized need. To read Simmons otherwise would mean that an indigent who is a recidivist has greater rights to free documents than an indigent person who has served a sentence but is no longer incarcerated. The Supreme Court did not intend to have this result. Upon review of the writ applications of the three inmates involved in the Simmons case, it is clear that each of the inmates, one of whom had been convicted as a multiple offender, requested documents related to the inmate’s then current incarceration, not to a conviction for which the sentence had already been served. Accordingly, absent a showing- of a particularized need, which has not been shown in the case at bar, relator’s request for a copy of his Boykin transcript in case 373-817 G is denied.

In case 397-314 C, on March 4,1999, the relator pled guilty to two counts of possession with intent to distribute cocaine. After the State filed a multiple bill, to which he pled guilty, the trial court sentenced the relator as a second felony, offender to fifteen years at hard labor. As to relator’s request for his Boykin and sentencing transcripts in case 397-314 C, this Court previously ordered the district court to provide the relator with the Boykin transcript only in writs 2000-K-2385, 2001-K-0398 and 2001-K-0994. However, in writ 2001-K-1890, this Court denied the request after the court reporter had certified that she was unable to locate the tapes of the relator’s guilty plea. Because the minute entry and docket master entry of March 4, 1999 indicate that the Boykin plea and sentencing and the multiple bill adjudication and' sentencing all occurred on that date, and the court reporter |,.¡previously certified that the tapes from that date are unavailable, the relator’s request for the, Boykin, sentencing, and multiple offender adjudication hearings cannot be satisfied and therefore is denied.

WRIT APPLICATION GRANTED; RELIEF DENIED.

ARMSTRONG, J., Dissents in Part.

| ¡ARMSTRONG, J.,

dissents in part.

I respectfully dissent in part. Relator is entitled to a copy of his Boykin transcript. State ex rel. Franklin v. State, 98-1021 (La. 5/15/98), 719 So.2d 60. I would order the district court to provide relator with a copy of his Boykin transcript of July 12, 1995 in case number 373-817 “G” within sixty days and to show compliance by forwarding to this court a copy of the cover letter that accompanies the transcript to relator. If the transcript is no longer available, I would order the district court to inform this court of that fact.


author: | WILLIAM H. BYRNES III, Chief Judge.

text:
    STATE of Louisiana v. Michael COMBS.
    No. 2002-KA-1920.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE and Judge EDWIN A. LOMBARD).
   | WILLIAM H. BYRNES III, Chief Judge.

STATEMENT OF THE CASE

Michael R. Combs was charged with two violations of La. R.S. 40:967(A), possession of cocaine with intent to distribute and distribution of cocaine. He plead guilty at his arraignment and the trial court found probable cause and denied his motion to suppress evidence. After a jury trial on March 17, 1999, he was found guilty as charged on each count. The state filed a multiple bill, and, after hearing, the court found Mr. Combs to be a third felony offender. He was sentenced as such to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Mr. Combs appealed, arguing that his sentence was excessive. In an unpublished opinion, this Court affirmed his convictions and vacated his sentence, remanding the case for resentencing. State v. Combs, 2000-1941 (La.App. 4 Cir. 3/14/01), 793 So.2d 570.

The facts of the case, as presented in the earlier appeal are as follows:

At trial Officer Terry St. Germain testified that he was working as an undercover officer on July 6, 1997; about 2:20 p.m. while driving in the 3400 block of Liberty Street, the officer was approached by the defendant, and they negotiated a purchase of a twenty-dollar rock of cocaine. The defendant walked around the corner to a blue car parked on Delachaise Street. The officer could see him reach into the car and accept I ?,something from a person in the car. When the defendant returned, he said he had only thirty-dollar pieces of crack cocaine, and the officer agreed to buy one. Officer St. Germain paid in marked bills of ten and twenty dollars. The car the officer was driving had video and audio capability, and thus his backup team was able to see and hear the transaction.
After the sale, the officer drove away and, while doing so, radioed a description of the defendant, his clothes, and his position to the backup team. The video was played for the jury. The officer identified Combs in court as the man who sold him the thirty-dollar rock of cocaine.
Sergeant Tami Guerrera [footnote omitted], who was Officer St. Germain’s partner on July 6, 1997, testified that when Combs approached them, they first requested a ten-dollar rock of cocaine, but Combs said he had twenties, and then he eventually sold them a thirty-dollar “slab” rather than a ten or twenty-dollar rock.
Officer Michael Montalbano testified that he participated in the arrest of the defendant. He too was wearing plain clothes and driving an unmarked vehicle. After hearing via the radio a description of the narcotics vendor and that the sale was complete, he drove into the area and arrested Michael Combs. As the officer stopped his car, Combs was standing next to the blue car parked on Dela-chaise and handing money to the man in the car. When Combs was searched incident to his arrest, he was found to be carrying a plastic bag containing six pieces of a white substance appearing to be crack cocaine. Each piece was individually wrapped.
Officer William Gibling, an expert in the analysis of controlled, dangerous substances, testified that he tested the rocks taken from the defendant and found them to be cocaine.

State v. Combs, 2000-1941, pp. 2-4 (La.App. 4 Cir. 3/14/01), 793 So.2d 570.

On April 18, 2001, the trial court, following this Court’s instructions, held an evi-dentiary hearing to determine if the life sentence imposed on the defendant was constitutionally excessive and also to sentence him on the second count on which he was convicted. The defendant and Sidney Combs, his brother, testified. |s On May 9, 2001, the trial court found that the defendant had failed to prove the life sentence excessive in his case and sentenced him to life imprisonment without benefits on the possession of cocaine with intent to distribute conviction and to seven and one-half years on the distribution conviction.

STATEMENT OF FACTS ADDUCED AT RE-SENTENCING EVIDENTIARY HEARING

At the resentencing hearing the defendant’s brother, Sidney Combs, testified that his mother and two sisters had been present for the hearing but had to leave because they were due at work. Defense counsel gave the court correspondence from the defendant’s mother, two sisters and a brother. None of these letters is part of the record. The originals were lost and the defense attorney had not made copies.

Sidney Combs told the court that the defendant had been a drug addict for five or six years prior to his arrest. The family was unable to help Michael during that time because of many other problems, including the death of one of their sisters as well as the death of Michael’s daughter. Since then Sidney Combs has obtained a well-paying job, and declared that he was willing to help his brother. Combs stated that he knew only that his brother was a consumer of drugs and never realized that he sold them. The defendant always had a job and supported his two sons. Sidney Combs told the court that he hoped his brother had learned a lesson and would get a second chance.

Michael Combs testified that he had used drugs for eight or nine years prior to his arrest in 1997. During some of that time he worked as part of the cleanup crew at a restaurant in the French Quarter. He made $4.75 per hour, and his wages |4were garnished to support two sons who lived in Slidell. He could not afford to buy cocaine and obtained it by working as a drug runner. He was paid only in the drug. The thirty-three year old defendant has been incarcerated since 1997, and testified that he has not used drugs during that time. However, as a life offender, he cannot take part in the GED or Blue Waters programs offered in prison. He has never been charged with a violent offense or possession of a weapon. FIRST AND SECOND ASSIGNMENTS OF ERROR: The trial court erred in sentencing defendant to life imprisonment; this sentence constituted cruel and usual punishment.

In State v. Rice, 2001-0215, p. 5-6, (La.App. 4 Cir. 1/16/02), 807 So.2d 350, 354, writ denied, 2002-0513 (La.9/13/02), 824 So.2d 1186, this Court reviewed the nature of the habitual felony offender sentencing scheme and the standard for departing therefrom:

Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. Johnson, 97-1906, pp. 5-6, 709 So.2d at 675; see also State v. Young, 94-1636, p. 5 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 527. There must be substantial evidence to rebut the presumption of constitutionality. State v. Francis, 96-2389, p. 7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must show by clear and convincing evidence that he is exceptional, which in this ^context means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343; Johnson, 97-1906, p. 8, 709 So.2d at 677. Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Id.

As a result of his earlier appeal, this defendant was granted an evidentiary hearing in order to prove that he is exceptional, his circumstances unusual, and therefore, his culpability less than what the legislature envisioned when the sentence was set. At the hearing the judge who had presided at trial heard the evidence offered as to the defendant’s background, his family, his employment history, and his criminal activity. The judge concluded that she was not persuaded to deviate from the law.

We find in this case substantial evidence to rebut the presumption that the mandated sentence is constitutional. This case is very similar to State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98), 723 So.2d 1013, where this Court vacated a young fourth offender’s life sentence after concluding that the sentence was excessive as applied to that particular defendant. The defendant in Bums was convicted of' distributing one rock of cocaine, and had two prior convictions for possession of cocaine and one for possession of stolen property. He admitted to being addicted to cocaine. This Court found that his age (twenty-five), his family support, his addiction, his non-violent history, and the fact that he had not possessed a weapon were mitigating factors. After concluding that the sentence was excessive, this Court remanded the case for resentencing in accordance with the opinion.

| fiSimilarly, the defendant in the instant case was thirty-two when he was convicted. Like the defendant in Bums he has a supportive family who want to help him. The extent of their help cannot be reviewed by this- Court because the four letters from the defendant’s family that were entered into evidence at the eviden-tiary hearing have been lost. However, the defendant’s brother testified to his willingness to help, and his mother, sister, and another brother were prepared to testify on his behalf but had to leave court to go to work. Michael Combs, like the Bums defendant, was not in possession of a weapon when arrested, had no money in his possession, and was only a “petty street drug pusher” and not a “major drug dealer.” See State v. Burns, 723 So.2d at 1019.

Moreover, the defendant is a non-violent offender. In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676, the court held that the fact that defendant’s felonies are non-violent is not sufficient in and of itself to prove the sentence mandated by the Habitual Offender Law is excessive. However, the court also noted that, “the classification of a defendant’s instant or prior offenses as non-violent should not be discounted ...” Id. Thus, this mitigating factor can be considered.

The defendant’s prior offenses are a conviction for forgery in 1986, for possession of cocaine in 1996, and for the current offenses in 1999. He has admitted to his addiction, and he was employed prior to his incarceration. Furthermore, because of a change in the Habitual Offender Law since his conviction, he would not qualify for a life term under current law.

|7The life sentence imposed on this third offender is not proportionate to the crimes for which he was convicted. That sentence “makes no measurable contribution to acceptable goals of punishment” and “is nothing more than the purposeless imposition of pain and suffering.” State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d at 677. We find that the defendant merits serious punishment, but he does not deserve life imprisonment and could benefit from the GED and Blue Waters programs if .available. Therefore, we vacate the defendant’s life sentence and remand the case for resentencing in accordance with this opinion.

This assignment of error has merit.

Because of our disposition of the defendant’s first and second assignments of error, the remaining assignments are moot.

CONCLUSION AND DECREE

Accordingly, for reasons cited above, we affirm the defendant’s seven and one-half year sentence oh the distribution conviction. We vacate the defendant’s life sentence as a multiple offender and remand the case for resentencing consistent with this opinion.

SEVEN AND ONE-HALF YEAR SENTENCE ON DISTRIBUTION CHARGE AFFIRMED; LIFE SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

      . La. R.S. 15:529.l(A)(l)(b)(ii), as it existed at the time of the offense, provided that when the third felony or either of the prior felonies is a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for more than five years, the sentence is life imprisonment at hard labor without benefits. Under the current law such a sentence can be imposed only if all of the three of the drug offenses are punishable by ten year or more.