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

text:
    STATE of Louisiana v. Deonta GRAY and Jonta Gray.
    No. 2003-K-1240.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 2004.
    Eddie J. Jordan, Jr., District Attorney, Orleans Parish, Battle Bell, IV, Assistant District Attorney, Orleans Parish, New Orleans, LA, for Respondent, State of Louisiana.
    Jeffrey L. Smith, and Dwight Doskey, New Orleans, LA, for Defendants/Rela-tors.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, JR.).'
   ON REMAND FROM THE SUPREME COURT OF LOUISIANA

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

The Supreme Court of Louisiana has remanded this matter to this court for briefing, argument, and opinion. State v. Gray, 03-2604 (La.1/9/04), 864 So.2d 128. This court has twice considered this matter: State v. Gray, 03-0779 (La.App. 4 Cir. 6/5/03), unpub., and State v. Gray, 03-1240 (La.App. 4 Cir. 8/14/03), unpub. The issue before the court is whether certain incriminating comments made by defendant Deonta Gray (“Deonta”) to Reverend Jeffrey Woolridge (“Woolridge”) are privileged under La. C.E. art. 511, Louisiana’s statutory version of the clergyman-penitent privilege.

La. C.E. art. 511 provides:

A.Definitions. As used in this Article:
(1) A “clergyman” is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is “confidential” if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
B. General rule of privilege. A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.
C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person.

|gOn 19 September 2002 the state filed a bill of information charging the defendant Deonta and defendant Jonta Gray (“Jon-ta”) with attempted second degree murder, a violation of La. R.S. 14:(27) 30.1. On 9 October 2002 the defendants entered pleas of not guilty. A hearing was held on 11 March 2003 and, on 28 March 2003, the trial court suppressed the statement made by Deonta to Woolridge. The state noticed its intent to file an application for supervisory writs and the writ was timely filed on 28 April 2003. We reversed the trial court because, inter alia, Deonta had not asserted the privilege of La. C.E. art. 511. State v. Gray, 03-0779 (La.App. 4 Cir. 6/5/03), unpub. On remand, Deonta testified that he claimed the article 511 privilege. The trial court reversed itself, holding the statement by Woolridge was admissible. This court denied an application for supervisory writs on the basis that the trial court had not abused its discretion. State v. Gray, 03-1240 (La.App.8/14/03), unpub. From that 13decision, the Supreme Court granted the writ and remanded the matter to this court for further consideration. State v. Gray, 03-2604 (La.1/9/04), 864 So.2d 128.

At the 11 March 2003 hearing, Wool-ridge, the director for the Men’s Discipleship Program at the All Nations Ministry (the “church”) in Amite, Louisiana, testified that before his present position he was a member at the church. When asked how he had become a minister, Woolridge answered: “Coming through the program myself and attending church there and being discipled [sic] by the word of God into coming into ministry.” He further clarified that he became a minister through “[b]ible training and answering the call of God.” Woolridge stated that at the time of the hearing he had been a full-time minister for about one and one-half years. He took care of day-to-day matters of the church, set the agenda for each day, and taught classes in the morning and at night.

Woolridge said that he knew of Jonta and Deonta because Keyanta Gray (“Key-anta”) was a member of the church involved in the women’s program for about six months, and she asked questions during classes. He stated that he was called on his cell phone by Keyanta to go to a motel room at the Colonial Inn in Amite to counsel the two defendants on a Saturday, “to talk to her boys about a matter and lead them to Christ.” Woolridge did not know the boys. When Woolridge arrived at the motel, Keyanta and the defendants were present in a motel room. Keyanta told the two young men to tell “Brother Jeff’ (Woolridge) 14what happened. Woolridge indicated that he had no idea what the conversation would entail, and he could not recall any mention of confidentiality. He stated that he understood that he was there to “lead them to Christ.” Woolridge said that he was not sure of the two youth’s names, however, the older, darker-skinned young man began to tell what had happened.

According to Woolridge, the older, darker-skinned defendant, who did all the talking, said that “they were getting high, called a cab driver to rob him, he came, he reached for a gun and he shot him.”. Wool-ridge said that the older, dark-skinned youth provided no details, and he did not ask. He said that he talked to the defendants about their lifestyle, the outcome of their way of living, and the game they were playing. The young man who had related the story seemed to be seriously interested in changing his life, and Wool-ridge prayed with him, asking for forgiveness. After being told about the shooting, Woolridge did not know what to do. He called his superior at the church, the pastor, who then spoke to Keyanta. She became very emotional. Then the pastor spoke to Woolridge again and instructed him to notify the authorities after leaving the Grays. Neither Deonta nor Jonta spoke to the pastor on the phone. Wool-ridge stated that he told Keyanta that she was to turn in the defendants because she wanted them to be saved. He did not tell her or the defendants that he himself was instructed to call the authorities. Wool-ridge stated that he did not say whether or not he intended to call the police and no one asked him not to call the police or not to relay the conversation. Woolridge, Keyanta, Deonta, and Jonta then prayed, and Woolridge 'told them to call him if anything came up. At that | Bpoint, defense counsel noted that the minister was using the name of Jonta, but the individual he identified was not Jonta. Woolridge said that he was in the motel room about thirty minutes and that during that time no one else entered or called the room.

When he left the motel room, Woolridge returned to his church and called the police as he was instructed. A day or two later, a New Orleans Police Department detective contacted Woolridge and drove to Amite the following week for a meeting. The officer recorded the statement, which Woolridge identified. He said that he had not been forced into giving a statement and that it was his decision to do so based upon his consultation with his leadership at the church. He further stated that he had never counseled the defendants prior to that day when he spoke to them in the motel room.

On cross-examination Woolridge confirmed that the second young man never said a word; only the older, darker-skinned one spoke. He decided to call the police only after talking to his elder. He reiterated that the call to the police was not based on Keyanta’s or the defendants’ decision that they wanted him to call the police. When asked if he advised Keyanta or the defendants that he would call the police from the motel, Woolridge answered: “I can’t say that I did.” Wool-ridge admitted that he did not ask Deon-ta’s, Jonta’s, or Keyanta’s permission to break- their trust and make the call. He stated that he had counseled people numerous times; however, he had never been told something of this magnitude. When asked about confidentiality and privacy, Woolridge conceded that he did not know what to do in the situation; therefore, he asked his superior, the pastor Eldolinus Sniff, for advice as to how to proceed. Woolridge said that he had gone to the motel room as a spiritual advisor and conceded that Keyanta 1 finever gave him any indication that she intended to leave the motel and turn over the defendants. The elder told Woolridge- that he had told Key-anta on the phone to turn over the defendants. Woolridge reiterated that he was licensed as a minister,-that the license was signed by the overseer in his denomination, and that he was a full-time minister.

From the foregoing evidence, the trial court suppressed the statement. Thereafter, this court reversed the trial court’s decision in State v. Gray, 08-0779 (La.App. 4 Cir. 6/5/03), unpub. We held that no dispute existed as to whether Woolridge was a minister to whom privileged communications could be made. We noted the lack of prior affiliation between Jonta, Deonta, and Woolridge’s church and that the record was devoid of evidence that Keyanta was present for purposes of her own repentance; that is, by implication Keyanta was present because she, as a relative of Jonta and Deonta, wanted to see the defendants obtain counseling to “lead them to Christ.” We noted that neither Jonta nor Deonta testified that they regarded the communication as that of a penitent. We also held that a qualified privilege existed between Woolridge and pastor Sniff, and that their communication about the defendants did not waive the privilege. Additionally, in reversing the trial court and remanding for further proceedings, we held that in the absence of testimony from Deonta asserting the privilege, especially in light of Woolridge’s admission that he neither told Keyanta, Jon-ta, or Deonta that he intended to call the authorities nor hold the communications as confidential, given the totality of the facts, the trial court erred in granting the defendants’ motion.

At the 19 June 2003 hearing on the remand, only Deonta testified. He testified that he went to see a minister with his Aunt Keyanta and his cousin, Jonta. The purpose was “[t]o speak with a priest and for spiritual guidance.” He had never spoken to a priest or minister before that day. When asked if he | intended to go to or to talk to the police, Deonta answered negatively. When asked if he had any intention that what he told the minister in seeking spiritual guidance was to be told to anyone else, Deonta answered: “No, sir.” He answered negatively when asked if he thought that the minister was going to tell the police. Deonta was then asked: “Would you have said anything to him [the minister] if you thought he was going to turn around and tell the police?” He answered: “No, sir.” Defense counsel then asked: “Were the words spoken to the minister for his ears only?” Deonta answered: “Yes, sir.” He answered affirmatively when asked if his aunt took him to the minister. When asked whether his Aunt Keyanta told him that after his conversation with the minister, the minister was going to call the police and tell the officers what had been said, Deonta answered negatively. When asked if his aunt told him that the minister would tell no one else, Deonta answered: “No, sir.”

On cross-examination Deonta said that he was the one to talk to the minister that day. He admitted that his aunt and his cousin were also present. He answered affirmatively when asked if he made the “statements in front of everyone else that was in the room.... ” Again Deonta answered negatively when asked if his aunt told him that what he said “would stay with the reverend.” He admitted that the minister made a phone call from the room, but Deonta claimed that he did not know who was on the other end of the phone and did not listen to the conversation. He denied being aware of any sort of proceeding like confession in the Catholic Church. He admitted that he did not go to church, and he did not personally know Woolridge; his aunt knew Woolridge. He again denied having any idea that Woolridge would speak to somebody else about the 18matter. When asked if he asked the minister if he was going to speak to someone else about what was said there, Deonta answered: “No, sir. I thought I shouldn’t have to.” He claimed that he did not ask to whom the minister was calling or whether the minister intended to talk about what he had told him. Deonta answered negatively when asked if he expressed any concerns to anyone in the room about the minister making a phone call.

Contrary to what the trial court had initially ruled, the court held:

The Court heard the testimony that there were two other people present in the room during the time these activities were taking place; that at least one phone call was made to an unidentified person dealing with an unspecified matter. The witness testified that he was not aware of the nature of the conversation that was going on. The Court did not hear any testimony as to the defendant’s familiarity with this particular minister. His testimony was he didn’t attend church; there was no previous contact with clergy on matters of confidence. And the Court heard no testimony that would re-enforce the notion that the defendant had any expectations of privacy or, if you will, privilege, when he approached this particular minister.

The defendants then sought supervisory writs. This court denied the application finding that the trial court did not abuse its vast discretion. State v. Gray, 08-1240 (La.App. 4 Cir. 8/14/03), unpub. On review, the Supreme Court remanded the matter to this court for briefing, argument, and opinion. State v. Gray, 03-2604 (La.1/9/04), 864 So.2d 128.

Defense counsel argues that the trial court abused its discretion by denying the motion to suppress after Deonta testified about his intent. Counsel claims that the presence of a third party is not an absolute bar to confidentiality, but only an indication as to whether the person invoking the privilege intended the statements to be confidential. Defense counsel relies on State v. Ellis, 99-0425 (La.App. 1 Cir. 12/28/99), 756 So.2d 418, writ denied, 2000-0762 (La.11/27/02), 831 So.2dJ.2268, the only published case to consider La. C.E. art. 511. In Ellis, a case involving an aggravated assault, the First Circuit held a statement of the defendant to a minister was privileged in spite of the presence of the victim and the defendant’s and victim’s wives. The court reasoned that the minister was acting in a spiritual capacity where both the victim and the defendant were present, the meeting occurred in the minister’s office at the church, and the minister was attempting to counsel the couples and reconcile their differences. Even though the court found the statement was privileged, the court held the admission of the statement was harmless error because of other overwhelming evidence against the defendant. Defense counsel notes that the other two people present in the motel room were Deonta’s mother and brother, not the victim or the victim’s family members. Defense counsel argues that after the first hearing, the trial court was willing to accept the circumstantial evidence that Deonta had gone to Woolridge for spiritual guidance and expected his communication to be confidential, but then changed its mind after Deonta testified that he expected his statements to remain confidential. Counsel points to errors by the court in focusing on whether Deonta had a personal relationship with Woolridge and whether the minister was sworn to confidentiality-

The state argues that the two-fold question was whether a privilege was violated when Woolridge called the police, and whether the privilege was waived when there were third parties present for the communication. Citing State v. Aucoin, 362 So.2d 503 (La.1978), the state notes the four general conditions to establish any privilege: (1) the person making the communication intended it to be confidential; (2) the element of confidentiality must be essential to the relationship between the parties; (3) the relationship must be one which society linwishes to encourage; and (4) the injury to the relationship that would result from the disclosure would be greater than the benefit gained by giving the trier of fact access to the truth. The state also argues that Keyanta and Jonta were present in the room when Deonta spoke to Woolridge, therefore, it was not intended to be confidential. Woolridge called his supervisor and told him about Deonta’s story; therefore, others were involved in this communication, and Wool-ridge was not told not to tell anyone. The presence of third parties, the state asserts, negated the presumption of confidentiality.

After the first hearing where Deonta did not testify and Woolridge did not assert the clergyman-penitent privilege, the trial court concluded that Deonta approached the minister with his mother and brother (aunt and cousin) for the purpose of spiritual guidance. The court concluded that it was “not convinced that the presence of either the mother or the brother in any way diminished the sanctity or the applicability of the privilege within the facts of this particular case.”

At the re-opened hearing, Deonta testified that he went with his aunt and his cousin to see a minister for the first time. Deonta said that the purpose was “[t]o speak with a priest and for spiritual guidance.” Deonta made it clear that he communicated with the minister “in his professional character as spiritual adviser.” Woolridge clearly testified that Deonta was sincere and repentant; the minister prayed with Deonta. Although Deonta’s testimony consisted primarily of answering questions with a “yes” or “no,” he did state that he thought he did not have to ask a minister if he would keep a statement confidential.

Following Deonta’s testimony, the trial court decided to deny the motion to suppress after Deonta testified. The court appeared to focus on the fact that (1) two luthird parties were present during the statement, (2) Deonta failed to attend church previously or have contact with clergy on matters of confidence, (3) Deonta lacked a personal relationship with Wool-ridge, and (4) Deonta was not aware of the nature of the minister’s telephone call to his superior. The trial court concluded that there had been no testimony to reinforce the notion that Deonta had any expectations of privacy when he approached that particular minister.

As La. C.E. art. 511(A)(2) provides: “A communication is ‘confidential’ if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” The Official Comments to article 511 provide in pertinent part:

(c) Unlike former provisions in Louisiana law as to availability of this privilege in criminal cases (former R.S. 15:477) and civil cases (former R.S. 13:3734.1), this Article does not by its terms extend the privilege to “information that the clergyman may have gotten by reason of such communication.”
(d) Unlike former R.S. 15:477 and former R.S. 13:3784.1, this Article does not by its terms require the express consent of the communicant before the clergyman testifies to the communication. The clergyman is, however, expressly authorized to claim the privilege on behalf of the communicant.
* * *
(h) Defining “confidential” to include communications made in the presence of “other persons present in furtherance of the purpose of the communication” makes it clear that under appropriate circumstances the privilege may extend to revelations made in the presence of each other by a husband and wife who together seek marital counseling, and similar joint consultations. See 2 J. Weinstein & M. Berger, Weinstein’s Evidence, S 506[02] at 506-8 (1985).
(i) Under. this Article the privilege clearly belongs to the communicant. The provisions of former R.S. 13:3734.1 were not clear on this subject. Under that section a clergyman perhaps could have testified in a civil case to a privileged communication over a claimer [sic] of privilege by the communicant.

In State v. Mayer, 589 So.2d 1145 (La.App. 5 Cir.1991), the Fifth Circuit was faced with a trial court’s decision to allow the testimony of two ordained ministers to whom the defendant had spoken. At issue was the predecessor to La. |1?C.E, art. 511, former La. R.S. 15:477, which provided: “No clergyman is permitted, without the consent of the person making the communication, to disclose any communication made to him in confidence by one seeking his spiritual advice or consolation, or any information that he may have gotten by reason of such communication.” The defendant had gone to one minister’s house and stated that he had shot his wife. The minister was the defendant’s best friend, and he said that the defendant told him as a friend, not a confessor. The minister, who did not believe that the defendant was seeking forgiveness or spiritual counsel, told his wife. A second minister, who knew the defendant and his wife, called the defendant to verify a story circulating that the defendant had killed her. The defendant had not sought spiritual guidance or counsel; he was not a member of that minister’s congregation. The Fifth Circuit discussed three previous cases • and made its conclusions:

In State v. Welch, 448 So.2d 705 (La.App. 1st Cir.1984), writ denied, 450 So.2d 952 (La.1984), the privilege was not allowed because the minister to whom the statement was made was not a “clergyman” within the meaning of the statute.
In State v. Hereford, 518 So.2d 515 (La.App. 3rd Cir.1987), it was also decided that the witness did “not appear to merit the respected professional designation” of clergyman. Furthermore, the testimony did not indicate that witness was approached for spiritual counseling.
In State v. Berry, 324 So.2d 822 (La.1975), cert. den., 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976), the defendant, convicted of murder, objected to the introduction of the minister’s testimony arguing that such testimony would violate the clergyman-penitent privilege. In Berry, on the evening of the murder, defendant went to the apartment of a sister of a minister. Present at the time were the minister, the minister’s sister and a friend. The evidence showed that defendant went to the apartment to pawn a watch. After the minister’s sister refused to loan him the money, he asked to speak to l13the minister. Defendant then told the minister that he had gotten the watch from a girl he had killed and needed $8.00 or else he might hurt someone else. The minister loaned him $8.00, took the watch and subsequently turned it over to police. After listening to this evidence outside the presence of the jury, the court determined that the privilege did not apply. In upholding the decision of the trial court, the Louisiana Supreme Court stated:
We are unable to find error in the trial court’s factual appreciation that the primary purpose of this visit was not to seek spiritual advice or consolation, nor in its finding that, in the totality of circumstances presented (including that the communication was made in the presence of two other persons), the communication was not made within the requisite nature of a confidential disclosure for religious purposes of a penitent to a clergyman seeking religious consolation. 8 Wig-more on Evidence, Section 2396 (McNaughton Rev.1961).
State v. Berry, supra at p. 829.
In the instant case, the clergyman-penitent privilege is inapplicable. The totality of the circumstances presented does not indicate that statements made by the defendant are within the communications protected. Neither the clergyman nor the defendant considered the statements to be in the nature of a confidential disclosure by a man to his spiritual advisor for purposes of gaining religious guidance. In fact, the defendant himself denies that any statements were made for any reason. Thus, the trial judge properly allowed the testimony of these two witnesses. This assignment is without merit.

Id. at 1148.

In State v. Tart, 93-0772, pp. 23-25 (La.2/9/96), 672 So.2d 116, 143, the Supreme Court upheld a trial court’s decision that the statements made by the defendant to a minister were not protected by the clergyman-penitent privilege found in former La. R.S. 15:477 and were properly admitted against him. According to the minister’s testimony, he visited the defendant at the request of | ucommunity members who were concerned about the treatment of prisoners in jail. The minister was the local president of the N.A.A.C.P. and asked the police chief to speak to the defendant about his treatment and any possible civil rights violations. The minister was accompanied by the defendant’s father when he visited the prison. At trial the minister testified to what the defendant had confessed. Relying on State v. Berry, supra, which rejected the clergyman-penitent privilege if the clergy member merely happened to be present during a suspect’s admission or was not at hand to offer spiritual succor, the Supreme Court concluded that the record showed the minister’s main purpose in visiting the defendant was to question him as to whether his civil rights were violated. The defendant was not a member of the minister’s congregation, and the minister had never met the defendant before and did not visit at the defendant’s request. The minister was acting on behalf of the N.A.A.C.P. when he visited the defendant, not as a pastor. The Supreme Court upheld the decision to allow the minister’s testimony relating to the defendant’s communication.

In preparing this opinion, we have reviewed several law review articles, treatises, and other publications. Among the more useful (because they address an overview of the national perspective on the issue) are Clergy Privilege, 93 ALR 5th 327 (2001) and Wright & Miller, Federal Practice and Procedure (1992). We quote Wright & Graham, 26 Federal Practice and Procedure § 5616 (1992), in pertinent part:

Since the penitent is the holder of the privilege and the person supposed to be encouraged to communicate under the instrumental rationale, it is clear that the intent of the penitent is the controlling factor in confidentiality. The fact that religions differ in whether orj^not they require penitential communications to be confidential and imposing duties of confidentiality on their clerics may be relevant to prove the intent of the penitent, they are not controlling; the penitent may desire confidentiality and reasonably expect the cleric to honor it even though it is not required by church doctrine.
One indicia of an absence of intent to make a confidential communication is where the communication itself discloses an intent that its content be revealed to others, or where the circumstances show that the penitent expects or intends disclosure, or where the contents of the communication are shown to have been intended to be transmitted to a third person. The cases rather uniformly refuse to allow the privilege to be used to prevent disclosure in court where it can be shown that the communication was intended to be disclosed to others out of court. The rationale is that this disclosure involves no betrayal of the penitent by the cleric and that the purpose of the privilege is not to encourage the use of the cleric as a privileged intermediary between the penitent and others. Thus, it has been held that there is not the requisite confidentiality when the cleric is asked to negotiate a plea for the defendant, to communicate information to the police or to the defendant’s ex-spouse, or lawyer, or the cleric is made an innocent dupe in conveying instructions to a jailed defendant’s co-conspirators. A lack of confidentiality can be “implied” from “circumstances where confidentiality cannot be expected.” For example, a murder suspect confronted by the cleric-father of his victim cannot reasonably expect that the cleric will keep confidential what the suspect says. It has also been said that confidentiality cannot be expected “in public facilities or large groups”; e.g., when the penitent addresses the cleric on the steps of the church following worship in the presence of other members of the congregation. But this circumstance needs to be considered with care; for example, the nature of the confessional and the acoustics in some churches makes it fairly easy for those waiting in line to make their confession to hear the words of those already in the confessional. Nonetheless, Roman Catholics, at least, would regard such a confession as confidential because of the obligation under canon law “to preserve the secret” that is imposed on “all others to whom knowledge of sins from confession shall come in any way.”
Confidentiality can be found to be lacking where there is an express statement to this effect, but a statement to the cleric or others that the penitent does not expect the cleric to endure contempt or imprisonment is not such a statement. It is frequently said that the presence of third persons is a circumstance that destroys confidentiality, though writers have sometimes suggested otherwise. However, these positions may be reconciled on the basis of differing views of the concept of “presence”; for example, when courts hold that there is no confidentiality for statements made in the presence of a police officer, but there is when the officer listens in on a confession; this can be explained on the basis of a special notion of |1(ipresence — that is, that the third person must be “in on the conversation” rather than simply eavesdropping. It has been sometimes suggested that a rigid application of the third person rule would bar dual confessions; e.g., where a husband and wife both consult the cleric about common marital problems .... [I]t might be better said that it is the “presence of extraneous, non-clergy, third parties” that destroys confidentiality. Thus, a confession in the presence of the penitent’s employer is not confidential because the presence of the latter is extraneous to the purpose of the communication. On the other hand, where an incarcerated person has no choice but to make a confession in the presence of a prison guard, this should be confidential if the prisoner can show that the authorities would not allow him to speak to the confessor in the absence of a guard.
Some states recognize a presumption of confidentiality upon proof of the other elements of the privilege. However, it is not clear that federal courts will recognize such a presumption.

[Footnotes omitted]

The state conceded that Woolridge was a clergyman under La. C.E. art. 511. Woolridge testified that no one told him that the conversation was confidential, and he did not so consider it; however, the trial court must have reasoned that the penitent defendant justifiably believed that his statement to a minister serving as a confessor during a spiritual counseling session would be considered confidential and privileged communication even if not required by the church or religion involved.

According to Woolridge, Deonta was serious about repenting that day in the motel room. The minister admitted that he never told Keyanta, Deonta, or Jonta that he intended to call the police or not hold the communication as confidential. Woolridge’s meeting with Deonta, which was aimed only at Deonta’s repentance and salvation, was private and confidential by implication, if not by an express statement by the parties. The communication by Woolridge to another minister or elder of the church does not destroy the confidentiality of the confession for Woolridge was seeking information as to how to proceed from a person also 1^interested in the same aims of Woolridge. The privilege was not waived by the presence of and disclosure to third parties. Deonta and Jonta were present in the motel room when Deonta told the minister what happened. However, Woolridge was there as a minister only because Deonta’s aunt had called her church. All persons testifying agree that the statement was made by Deonta for penitential purposes, although it occurred at the urging of Keyanta, who appears to be a person of significant personal influence in Deonta’s life.

We do not find that State v. Ellis, supra, helps us resolve the present case for the following reasons. First, we agree with the view expressed by the authors in Pugh, Force, Rault & Triche, Handbook on Louisiana Evidence Law 2003 at 424, that the presence of the victim during the defendant’s confession should destroy the privilege. Second, the Ellis holding that the communication was privileged, but its admission was harmless, was based on a fact intensive analysis. Therefore, we do not read Ellis as applying to the facts of the instant case or as expressing a rule of general applicability.

We understand that La. C.E. art. 511 cannot be read or applied in a vacuum. We hold that material factors to be considered when determining whether the privilege applies are, among others, (1) whether the communication to the clergyman is motivated by spiritual or penitential considerations; (2) whether the communication is made to the clergyman in his or her professional capacity; (3) whether communicant believes his/her acts or thoughts to be flawed, coupled with |iaa desire to receive pastoral consolation and guidance (vis-a-vis, in the appropriate case, the public’s right to hear all evidence in the search for truth); (4) whether the communication is intended by the communicant to be confidential; (5) whether the acts or thoughts of the communicant are enjoined by the church denomination, religious group, or sect; and (6) whether the church denomination, religious group, or sect imposes a duty upon the clergyman to keep the communication secret. In addition, we find that the communicant may be a first time communicant if he or she reasonably believes, based upon the communicant’s knowledge, that the communication will be held confidential and is motivated by penitential considerations. Similarly, one should not view the communication from a christocentrie point of view; the tenets of the religion of both the communicant and clergyman must be considered.

This is a close case. However, the defendant’s aunt and co-defendant were “other persons present in furtherance of the purpose of the communication.” La. C.E. art. 511(A)(2). The trial court, which was not convinced that their presence “diminished the sanctity or the applicability of the privilege within the facts of this particular case,” was not clearly wrong or manifestly in error when it originally held the statement should be suppressed. If the trial court, following the second hearing, had stated that it did not find Deonta’s credible — that he intended that the ^j^statement be confidential and not disclosed or that Deonta did not make the statement for spiritual or penitential considerations but rather to merely appease his Aunt Deonta — then we would find no abuse of the trial court’s discretion. If the trial court had heard Deonta’s testimony at the original hearing, this court would have denied the writ. However, in the absence of such a finding by the trial court, we are required to uphold the plain, precise language contained in La. C.E. art. 511, and more specifically, the definition of confidential communication in La. C.E. art. 511(A)(2). We have no evidence that would indicate that the statement was not made for spiritual purposes.

We are bound to follow the precise language of article 511. The legislature is the appropriate body to change the law.

Accordingly, we reverse the judgment of the trial court and suppress the statement of Woolridge. We remand this matter to the trial court for further proceedings.

WRIT GRANTED; REVERSED AND REMANDED.

      . The trial court concluded:
      I think the record was clear that when the defendant Mr. Gray approached, along with his mother and brother, this minister, it was as a confessor and it was indeed for the purpose of spiritual guidance.
      The Court is also satisfied that the person approached, the minister, was indeed a clergyman within the purview of Article 511 of the Louisiana Code of Evidence, which defines a clergyman as a minister, priest, rabbi or other functionary of a religious organization or an individual reasonably believed so to be by the person consulting him. The Court believes that the record was clear that Mr. Gray, his brother and mother approached the minister under those circumstances believing him, in fact, to be a minister and therefore finds that the privilege pertained as to communications directed to the minister within the course of that contact.
      As to whether the privilege was violated, it can be violated as the result of the subsequent communication by the minister. The Court would note, as has already been pointed out by the State, that there were two other parties, the mother of the defendant and the brother, the co-defendant, at the time the communication was made.
      The Court is not convinced that the presence of either the mother or the brother in any way diminished the sanctity or the applicability of the privilege within the facts of this particular case. Therefore, the Court at this time will order that the communication to the minister by the defendant [sic] Mr. Gray [sic] be suppressed.

      . In the 19 June 2003 transcript, the Keyan-ta's name is spelled "Keyona.” In the 11 March 2003 transcript, it was spelled phonetically as "Kenyatta,” and the state used "Key-anta''; in this opinion, we will use Keyanta for the sake of consistency.

      . In the original hearing transcript it appears that Deonta and Jonta are Keyanta's sons; however, in Woolridge’s statement, he said that Keyanta called him to counsel her son and her nephew. In the hearing transcript there are references to Keyanta as the defendants’ mother and questions about whether she intended to turn in her children. We have subsequently concluded from the record as a whole that Jonta is Keyanta’s son and Deonta is Keyanta’s nephew.

      . The Grays referred to Woolridge as Brother Jeff.

      . Woolridge identified the defendant sitting closer to him in the jury box as the individual who spoke. (As explained infra, that individual was Deonta.) When the court asked that it be noted for the record the defendant identified, defense counsel stated: "The state doesn’t know who’s here? I’m not going to identify anybody. That could be a problem in this case, who’s who.” The trial judge questioned the minister, who stated that he was "referring to the darker complected [sic], I believe his name is Jonta.”

      . Although there was an objection lodged at this point in the hearing, Deonta answered before the trial court ruled. Because the line of questioning was being allowed, the court did not strike the answer.

      . La. C.E. art. 511 replaced La. R.S. 15:477, the prior law setting forth the clergyman-penitent privilege.

      . Actually, respectively, aunt and cousin.

      . Aucoin involved an issue relating to the physician-patient privilege.

      . See La. C.E. art. 511(B).

      . We note that currently the concerns 6f the writers addressing the clergyman-penitent privilege are directed to issues of child abuse and terrorism.

      . That is, "present in furtherance of the purpose of the communication.” La. C.E. art. 511(A)(2).

      . Commonwealth v. Stewart, 547 Pa. 277, 690 A.2d 195 (1997); People v, Johnson, 270 Cal.App.2d 204, 75 Cal.Rptr. 605 (2d Dist.1969); Kos v. State, 15 S.W.3d 633 (Tex.App.Dallas 2000).

      . State v. Berry, 324 So.2d 822 (La.1975); Tankersley v. State, 724 So.2d 557 (Ala.Cr.App.1998); State v. Richmond, 590 N.W.2d 33 (Iowa 1999); State v. Cary, 331 N.J.Super. 236, 751 A.2d 620 (App.Div.2000).

      . State v. Orfi, 511 N.W.2d 464 (Minn.Ct.App.1994).

      . Clergy Privilege, 93 ALR 5th 327, 350 (2001) (Justification for the clergyman-penitent privilege is based in society's interest in encouraging the development of religious institutions by securing the privacy of penitential communications).

      . State v. Berry, 324 So.2d 822 (La.1975); State v. Mayer, 589 So.2d 1145 (La.App. 5 Cir.1991); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992); Plate v. State, 925 P.2d 1057 (Alaska Ct.App.1996).

      . Blough v. Food Lion, Inc., 4 F.3d 984, 1993 WL 321797 (4th Cir.1993); State v. MacKinnon, 1998 MT 78, 288 Mont. 329, 957 P.2d 23 (1998); State v. Potter, 197 W.Va. 734, 478 S.E.2d 742 (1996).

      . People v. Edwards, 203 Cal.App.3d 1358, 248 Cal.Rptr. 53 (1st Dist.1988).


source: Caselaw Access Project

author: h JAMES F. McKAY, III, Judge.

license: Public Domain

text:
    STATE of Louisiana v. John BERTRAND.
    No. 2003-KA-2069.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 2004.
    Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Nick Orechwa, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellee.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendani/Ap-pellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   h JAMES F. McKAY, III, Judge.

On April 1, 2003, the State filed a bill of information charging John F. Bertrand with sexual battery in violation of La. R.S. 14:43.1. At arraignment on April 3rd he pleaded not guilty. At a hearing on May 8th the trial court found probable cause to bind the defendant over for trial and denied the motion to suppress the statement. A six-member jury found Mr. Bertrand guilty of attempted sexual battery on July 23rd. The trial court sentenced the defendant to serve nine months in the Louisiana Department of Corrections with a suspended sentence of two years and three months and three years of active probation. The defendant’s motion for an appeal was granted, and his motion for reconsideration of sentence was denied.

At trial Detective Donald Berryhill of the Child Abuse Section of NOPD testified that on January 27, 2003, he investigated a report of sexual battery. After meeting with the six-year-old victim and his mother, -the detective determined that there was probable cause to arrest the defendant.

C.C., the victim’s mother, testified that she and her four children were at home on the evening of January 27th. She and her three older children were sleeping in a room in which her youngest child and the defendant were watching | ¡¡television. She awoke when the telephone rang and she saw the defendant “was taking his hand out of my baby’s behind and my baby was playing with his self.” C.C. told the defendant to leave and called a relative who suggested that C.C. call the police. She asked her son what happened, and he said the defendant “had his finger in my boo-tie.” C.C. said she had known Mr. Bertrand for more than twenty years and trusted him. They had a long lasting sexual relationship although Mr. Bertrand is not the father of any of C.C.’s four children. C.C. was not working at the time of this incident, and the defendant regularly gave her money. She went to Mr. Bertrand’s place of work occasionally to ask for money or to help him out. C.C. admitted using marijuana and drinking; she also acknowledged that she had a conviction for selling crack cocaine. Although her conviction was for possession of cocaine, she stated that she had two rocks that she was trying to sell.

Joan Williams, a forensic interviewer for the Child Advocacy Center, testified that she interviewed the victim on February 5th. The videotape of the interview was shown to the jury. When questioned by the defense attorney, Ms. Williams said that the child told her that the abuse occurred twice: once when he was five and again when he was six.

T.C., the six-year-old victim, testified that he lived with his mother and stepfather. When asked if he knew John Bertrand, he responded that John was his “old daddy.” When asked to describe the last time he watched television with John, the child said that his mother, brothers and sister were asleep in the same room. Only he and John were awake. At that time, John “put his hand in my butt.” T.C. stated that the same thing had happened when he lived in a different house. He said he told his mother about the first time, but she did not see it. When asked if anyone had told him what to say in court, T.C. answered that his mother had told lahim what to say. However, when asked if he was telling the truth, he answered that he was.

Eight character witnesses took the stand and declared that they were aware of the defendant’s reputation in the community. They reported that he was known for his good character.

Mr. John Bertrand, the fifty-nine year old defendant, testified that he graduated from high school in New Orleans and served in the U.S. Army in Viet Nam. He has worked in construction for years. He met C.C. in 1989 and has had a relationship with her since that time. C.C. told him that T.C. was his child, but he was not named on the birth certificate as the child’s father. During their entire relationship, he has provided C.C. with money for her rent, clothing, and child expenses. He served as baby-sitter for her children frequently. He occasionally took T.C. to work with him when C.C. did not return home before Mr. Bertrand had to leave for his job. He stated that before the incident he had stopped giving C.C. money because she would never tell him what she did with the money. About 9 p.m. on January 27, 2003, he and C.C. and her four children were watching a movie on television when the telephone rang. C.C. asked him when he was leaving, and he said he could leave then, and he did. He was living around the corner from C.C., and he was at home in bed when the police arrived and arrested him. He denied ever touching T.C. in a sexual manner.

A review of the record for errors patent reveals an error. The defendant was sentenced for attempted sexual battery. La. R.S. 14:27, the attempt statute, requires that a person convicted under that statute be sentenced “in the same manner as for the offense attempted”; La. R.S. 14:43.1, the sexual battery statute, prohibits the benefits of parole, probation, or suspension of sentence. Thus, the | ¿trial court erred in suspending Mr. Bertrand’s sentence and placing him on active probation. Accordingly, the sentence must be vacated.

In a single assignment of error, the defense maintains that the evidence is insufficient to support the conviction.

The standard for reviewing a claim of sufficiency of the evidence is well settled. Simply stated, all evidence, direct and circumstantial, must meet the reasonable doubt standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Jacobs, 504 So.2d 817 (La.1987).

Mr. Bertrand was convicted of attempted sexual battery. Sexual battery is defined as:

the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender

An attempt to commit a crime occurs when a:

person who, having a specific intent to commit a crime, does ... an act for the purpose of and tending directly toward the accomplishing of his object

Thus, the State must prove that the defendant tried to touch the anus of T.C.

IsThe defendant maintains that the jury verdict is not supported by the facts of the case given that he is a sixty-year-old with no criminal history whose family and friends were able to testify as to his good reputation in the community, in contrast to C.C. who admitted selling cocaine and working as a stripper and whose veracity is questionable at best.

An appellate court must defer to the fact finder’s credibility choices and justifiable inferences of fact. State v. Lee, 94-2584, p. 7 (La.App. 4 Cir. 1/19/96), 668 So.2d 420, 426. It is not the function of this court to assess credibility or to reweigh the evidence. State v. Rosiere, 488 So.2d 965, 968 (La.1986). The credibility determination is within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984); State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989). The issue of credibility is reviewed on an abuse of discretion standard. State v. Cashen, 544 So.2d 1268 (La.App. 4 Cir.1989).

After reviewing all the record evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found all of the essential elements of the offense proven beyond a reasonable doubt. The defendant, who was in a small room with the victim and his mother, was seen by the mother removing his hand from the victims pants. Furthermore, the six-year-old boy testified that the defendant put his hand in my butt.

The jury heard the testimony of all the witnesses and obviously found the victims and his mothers version of events to be compelling and credible. This determination is not contrary to the evidence, and we do not find that the jury abused | fits discretion. Accordingly, this assignment of error is without merit.

The defendant’s conviction is affirmed. His sentence is vacated, and the case is remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . As we noted in State v. Major, 2002-0133, p. 7 n. 5 (La.App. 4 Cir. 10/2/02), 829 So.2d 625, 631-32:
      In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Scott, 97-0028 (La.App. 4 Cir. 3/18/98), 709 So.2d 339. However, an appellate court may not disregard this duty simply because the record contains evidence that tends to support each fact necessaiy to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). An appellate court is not permitted to consider just the evidence most favorable to the prosecution, but it must consider the record as a whole since that is what a rational trier of fact would do. State v. Harge, 98-1321 (La.App. 4 Cir. 2/17/99), 730 So.2d 983. If a rational trier of fact could disagree as to the interpretation of the evidence, the view of the rational trier of fact of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, supra. An appellate court is not called upon to determine if it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992).


author: I MAMES F. McKAY III, Judge. 11 CANNIZZARO, J.,

text:
    Germain CRAFT, Individually and on Behalf of Minor Child, Oriana Craft and Kendrick Craft v. SEWERAGE AND WATER BOARD OF NEW ORLEANS and Boh Bros. Construction Co., L.L.C.
    No. 2003-CA-1886.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 2004.

      Steven J. Rando, The Law Offices of Steven J. Rando, L.L.C., New Orleans, LA, for Plaintiff/Appellee.

      Mary-Elizabeth Paltron, General Counsel, Jacob Taranto, III, Assistant Special Counsel, John D. Lambert, Jr., Special Counsel, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge LEON A. CANNIZZARO JR.).
   I MAMES F. McKAY III, Judge.

On September 19,1998, a vehicle operated by Kendrick Craft crashed as the roadway in the vicinity of 10100 Morrison Road collapsed directly above an eighteen-inch sewer line. Kendrick Craft’s mother, Ger-maine Craft, and his sister, Oriana Craft, were passengers in the vehicle. The collapse of the roadway was caused by a washout, which resulted due to the failure of the eighteen-inch sewer line below the roadway. As a result of the accident, all three of the vehicle’s occupants were injured.

Germaine Craft, individually and on behalf of the minor child, Oriana Craft, and Kendrick Craft filed suit against Sewerage and Water Board of New Orleans (S & WB) and Boh Brothers Construction Company, L.L.C. A bench trial was held on February 11 and February 12, 2003. On August 11, 2003, the trial court rendered a judgment with written reasons finding that the sewer line in question was in the care, custody and control of the S & WB. The judgment further held that S & WB had notice of the defective sewer line and had a reasonable opportunity to make the necessary repairs. The trial court made the following damage awards: | ^Germaine Craft was awarded $65,000.00 plus medical specials in the amount of $45,871.53; Kenneth Craft was awarded $9,000.00 plus medical specials in the amount of $4,230.75; and Oriana Craft was awarded $1,000.00 plus medical specials in the amount of $278.70. The trial court also awarded State Farm Mutual Automobile Insurance Company, as subrogee of Ger-maine Craft and as her automobile liability carrier, a reimbursement of $979.84. The S & WB appeals this judgment. The plaintiffs have answered the appeal and seek an increase in the damages awarded to them.

On appeal, the S & WB raises the following assignments of error: 1) the court below was manifestly erroneous in finding that there was notice of the condition which caused the collapse of the street; 2) the court below erred in finding any liability on the part of the S & WB given that the evidence produced did not meet and satisfy the statutory and jurisprudential requirements for assigning liability to the S & WB, particularly in light of La. R.S. 9:2800; and 3) the court below erred in the amount of damages awarded in this matter. The plaintiffs seek an increase in quantum. Germaine Craft also seeks a modification of the trial court’s judgment in that $9,000.00 of stipulated lost wages were not made part of the judgment despite statements from the trial court to the contrary as well as a modification of the trial court’s judgment in that property damages in the amount of $1,145.48, rental car bills in the amount of $235.53 and towing charges in the amount of $66.25 were not made part of the judgment and were uncontested at trial.

lain reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. at 883. The issue to be resolved is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Id. at 882. The reviewing court may not disturb evaluations of credibility and inferences of fact when the findings are reasonable in light of the record in its entirety, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883.

In the instant case, several employees of the S & WB testified concerning actual or constructive notice of the defective condition of the sewer line. According to John Wilson, the S & WB had records of the complaints relative to the area in question on at least two occasions prior to the September 19, 1998 accident; one involved an inlet leak at the main on February 6, 1998 for which there was no record of repair, the other, on May 2, 1998, involved a complaint of subsidence some 300 feet away from the site of the Craft accident. John Huerkamp confirmed that there had been subsidence problems near the intersection of Morrison and Read and acknowledged the February 6, 1998 complaint of an inlet leak with no record of repair. Mr. Huerkamp suggested that this lack of a record of repair was because the representative of the S & WB who went out to the area determined that | ¿there was no leak. Curtis August testified that as part of his job he would travel up and down Morrison Road approximately once a week responding to complaints in the area. Mr. August acknowledged that he did the initial response to the February 6, 1998 complaint of a leak on Morrison near the area in question and found an inlet leak, which he requested to be repaired. Based on the testimony of these S & WB employees, we find nothing manifestly erroneous in the trial court’s finding that there was notice of the condition which caused the collapse of the street.

La. R.S. 9:2800, which deals with the limitation of liability for public bodies, provides:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
C. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
F. A violation of the rules and regulations promulgated by a public entity is not negligence per se.
G. “Public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, | ^commissions, instru-mentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as defined in R.S. 40:384(15), and their commissioners and other officers and employees and sewerage and water boards and their employees, servants, agents, or subcontractors.

Therefore, in order to prove public entity liability for a thing, a plaintiff must establish: 1) custody or ownership of the defective thing by the public entity: 2) that the defect created an unreasonable risk of harm; 3) that the public entity had actual or constructive knowledge of the defect; 4) that the public entity failed to take corrective measures within a reasonable time; and 5) causation. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002.

At trial, the expert witnesses presented by the S & WB acknowledged that the S & WB is charged with the duty of installing, maintaining, inspecting and repairing all equipment and facilities such as the eighteen-inch sewer line. Accordingly, the S & WB was in the care, custody and control of the failed eighteen inch sewer line. As stated above, we find no error in the trial court’s finding that the S & WB had notice of the defect. It is also evident from the testimony of the S & WB employees that the S & WB failed to take corrective measures within a reasonable time. The defective condition of the sewer line and the S & WB’s failure to take corrective measures within a reasonable time caused the collapse of the roadway. A collapsed roadway is clearly an unreasonable risk of harm to the motoring public.

Both the plaintiffs and the defendant complain about the damage awards in this case. However, a reviewing court should not disturb a damage award absent a clear abuse of discretion by the trier of fact. Reichert v. State, Department of Transportation and Development, 96-1419, 96-1460 (La.5/20/97), 694 So.2d 193; Reek v. Stevens, 373 So.2d 498 (La.1979). A reviewing court should first determine that an award is below or above that which a reasonable trier of fact [ ¿¡could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). After that determination, an appellate court can resort to prior awards to decide the highest or lowest point which is reasonably within that discretion. Id. at 1260; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Based on the record (including stipulated medical expenses) before this Court, we cannot find that the general damages awarded in this case were below or above that which a reasonable trier of fact could assess for the effects of these particular injuries to these particular plaintiffs under these particular circumstances.

With regards to Germaine Craft’s claim for lost wages, we find that the trial court erred in not awarding her $9,000.00. At trial, the court stated: “But I will tell you that we have got a stipulation that if she succeeds in proving liability she has lost wages of $9,000.” The plaintiffs succeeded in proving the liability of the S & WB. As such, Ms. Craft should have been awarded $9,000.00 in lost wages. With regards to Germain Craft’s claim for property damage, a modification of the trial court’s judgment is also in order. Ger-maine Craft had uncontested property damage in the amount of $1,145.48, rental car bills in the amount of $235.53, and towing charges in the amount of $66.25 for a total of $1,447.26. However, State Farm has already paid Ms. Craft $979.84, for which it was awarded a reimbursement in that amount by the trial court. As such, Ms. Craft is entitled to an additional award of $467.42 for her property damage and associated costs.

For the foregoing reasons, we affirm the judgment of the trial court and amend it to award Germaine Craft $9,000.00 for lost wages and $467.42 for property damage and associated costs.

|7AFFIRMED AND AMENDED.

CANNIZZARO, J., concurs with reasons.

11 CANNIZZARO, J.,

concurs with reasons.

I concur with the result in the majority opinion, but I do not think that the evidence shows that the Sewerage & Water Board (the “S & WB”) had notice of the problem that caused the accident in this case. In my opinion the evidence shows that the condition that caused the accident arose so suddenly that the S & WB could not have been notified of the condition. Although the S & WB had been notified of other matters regarding its sewer line, the evidence demonstrates that these matters were unrelated to the cause of the accident in this case.

The fact that the S & WB did not have notice of the condition that caused the accident should not, however, preclude recovery by the plaintiff. The doctrine of res ipsa loquitur is applicable to this case, and the notice requirement under La. R.S. 9:2800 is, therefore, irrelevant. La. R.S. 9:2800 expressly refers to La. C.C. art. 2317, and La. C.C. art. 2817.1 provides the “[njothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur.”

Citizens lawfully operating a motor vehicle on a roadway should have an expectation that the roadway will not suddenly collapse and cause them injury. In this case that is exactly what happened. The evidence shows that a sewer line below the roadway failed unexpectedly and without any warning, causing the roadway’s sudden collapse. It is nonsensical to require that the S & WB receive Lprior notice of such a condition before an injured citizen, who is free from fault, can recover damages. Fortunately, the legislature has provided for just such a situation by sanctioning the use of the doctrine of res ipsa loquitur, where applicable, in situations subject to La. R.S. 9:2800 and La. C.C. art. 2317.

      . Louisiana Civil Code Article 2317 provides: "We are responsible, not only for damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”


author: bMAX N. TOBIAS, JR., Judge.

text:
    Dwayne J. LOCKETT v. Judge Kern REESE, et al.
    No. 2004-C-0328.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 2004.

      Dwayne J. Lockett, New Orleans, LA, In Proper Person, Plaintiff/Respondent.
    Charles C. Foti, Jr., Attorney General, Sonia Mallett, Assistant Attorney General, Baton Rouge, LA, for Defendant/Relator, Judge Kern Reese.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge MAX N. TOBIAS, Jr.).
   bMAX N. TOBIAS, JR., Judge.

We grant the application for supervisory writ of the defendant/relator, Judge Kern Reese (hereinafter “Reese”), to consider whether the trial court erred in overruling his “Motion to Dismiss” for the failure of Dwayne J. Lockett (hereinafter “Lock-ett”), the plaintiffirespondent, to request service upon him within 90 days of the filing of the petition. On 5 March 2004, we ordered that Lockett file a response, including therewith copies of all pleadings and motions that he filed in the trial court in this matter. Lockett timely filed a response. On 18 March 2004, we requested the parties to supplement the record before us with additional documents.

On 13 June 2003, Lockett filed a petition for damages against Reese and others alleging, inter alia, that Reese and Lockett’s former wife, Rhea Woods Lockett (hereinafter, ‘Woods”), had had an intimate relationship prior to Lockett’s marriage to Woods, that Woods testified on Reese’s behalf in attorney disciplinary proceedings against Reese, and that Reese had refused to recuse himself as .judge | ¡.hearing the divorce proceedings between Lockett and Woods. Reese is a judge of the Civil District Court for the Parish of Orleans and therefore an employee of the State of Louisiana. Lockett alleges that Reese is liable in both his individual and official capacity as judge.

In his original petition filed on 13 June 2003, for purposes of citation and service of process, Lockett set forth the names and addresses of all defendants, including Reese, but noted in boldface and underlined letters: “WITHHOLD SERVICE AT THIS TIME.” The request to withhold service clearly is meant to apply to all defendants. In his response to our 5 March 2004 order, Lockett alleges that on 8 September 2003 he filed an ex parte motion to extend the time to serve the defendants. Lockett states in this response to this court that:

The Judge deciding that plaintiff had shown “good cause” granted plaintiff and [sic] additional (30 days) or until October 10, 2003 to effect service. Plaintiff timely complied by issuing instructions to the Clerk of Court to serve the defendants.

We specifically note that Lockett does not allege that he sought an extension of time to request service. In his motion of 8 September 2003, Lockett alleged that the 90 days within which to serve (as opposed to request service upon) the defendants had not lapsed, that he had “recently requested information from Special Counsel of the Judicial [sic] Commission and the Louisiana Bar Association office of the Disciplinary Council [sic]” and that the information sought was needed “to amend and serve not only the citation and original petition, 13but also serve the citation and amended complaint.” He also alleged that he brought suit to protect and preserve his rights and that in his original petition he reserved the right to supplement and amend his petition. A judge of the trial court granted Lockett until 10 October 2003 to serve process upon the defendants; the trial court, contrary to Lockett’s statement quoted above, cited no reasons of record for the grant of the order. And the trial court did not by its order grant Lockett any additional time to request service.

Following service and citation upon him, Reese filed a motion to dismiss Lockett’s suit on 5 December 2003 based upon La. R.S. 13:5107D, which provides:

(1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. The requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
|4(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

Following a hearing on 22 January 2004, the trial court denied the motion to dismiss and commemorated its ruling by judgment signed on 28 January 2004. The trial court reasoned that because Lockett had obtained an order from a Civil District Court judge allowing him “until October 10, 2003 to serve defendants,” Lockett had timely complied with the court’s order. (We note that Reese has never waived citation or service.) From that judgment, Reese timely filed the present application for supervisory review.

In Naquin v. Titan Indem. Co., 2000-1585 (La.2/21/01), 779 So.2d 704, the Louisiana Supreme Court held that La. R.S. 13:5107 respecting requesting service within 90 days was clear and unambiguous and must be applied as written. We are bound by that ruling.

Similar to La. R.S. 13:5107 is La. C.C.P. art. 1672. La. C.C.P. art. 1672C, which provides:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by [Code of Civil Procedure] Article 1201(C), upon contradictory motion of the person or any party or upon the court’s own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

| ¡^Neither statute requires actual service within 90 days of the filing of the original petition. La. R.S. 13:5107, being a specific, special statute dealing with service of citation and process upon the state, a state agency, a political subdivision, or an officer or employee of the state, state agency or political subdivision, supersedes La. C.C.P. art. 1672C, a general statute respecting service of citation and process upon ordinary persons when the party to be served is the state, a state agency, a political subdivision, or an officer or employee of the state, state agency, or political subdivision. Macon v. Costa, 437 So.2d 806, 813 n. 14 (La.1983); Esteve v. Allstate Ins. Co., 351 So.2d 117, 121 (La.1977); Roby v. Board of Trustees of Employees Retirement System of New Orleans, 94-0671, p. 5 (La.App. 4 Cir. 1/31/95), 650 So.2d 811, 813.

In Cubas v. Brown, 03-0664 (La.App. 4 Cir. 9/3/03), 853 So.2d 1138, this court held that even though the defendant accepted service of the petition and waived citation more than 90 days after the action was commenced, failure of the plaintiff to request service of the citation within the 90 days specified by La. C.C.P. arts. 1672C and 1201C required the dismissal of the suit without prejudice. See also, Johnson v. Brown, 03-0679 (La.App. 4 Cir. 6/25/03), 851 So.2d 319. It therefore follows, in light of Cubas, that one must actually request service of citation upon the state, a state agency, a political subdivision of the state, or any officer or employee thereof within 90 days from the date the action is commenced in the trial court. (Again we note that the statute does not require that service be actually made within 90 days, only that it be requested.) A person is not entitled to an extension of the time delay for any reason under La. R.S. 13:5107D absent good cause to request an extension of time to request service. We note specifically that Lockett only requested additional time to serve the defendants; he did not request ^additional time to request service. The order of the trial court only granted Lockett additional time to serve the defendants. It follows, therefore, that a trial court errs in granting a plaintiff, such as Lockett, an ex parte extension of time to request service of citation upon an officer or employee of the state when, as here, the plaintiff alleged damages relating to acts and actions of the judge in his official capacity and the mover fails to state actual bona fide, reasonable grounds for the delay. A party has no statutory duty to request an extension of time to effect service upon the defendant. In the case at bar, Lockett stated no legal grounds for the ex parte extension of time; whatever information he was seeking from the Judiciary Commission or the bar association could have been supplemented at a later date by an appropriate pleading. La. C.C.P. art. 1151.

In opposition to the application for a supervisory writ, Lockett cites Bordelon v. Medical Center of Baton Rouge, 2003-0202 (La.10/21/03), 857 So.2d 376, and Patterson v. Jefferson Davis Parish School Bd., 2000-00580 (La.App. 3 Cir. 12/6/00), 773 So.2d 297, to support his position. We find that neither case supports a conclusion that Lockett is entitled to prevail under La. R.S. 13:5107D.

In Bordelon, supra, the Louisiana Supreme Court defined the issue before it:

We granted this writ application to determine whether failure to request service of citation on a defendant within 90 days of the filing of a lawsuit, as required by La. C.C.P. art. 1201, renders the entire lawsuit an absolute nullity by operation of law, such that the filing of that suit does not serve to interrupt prescription under La. C.C. art. 3463. After reviewing the record and the applicable law, we affirm the judgment of the court of appeal and find that, in the absence of non-service for bad faith reasons, the filing of the lawsuit interrupts prescription, even if the defendant is not served.

Id. at p. 1, 857 So.2d at 376. The court was concerned with whether prescription was interrupted against all parties after a dismissal of a first suit for failure to |7timely request service had an effect on a second suit filed against the same parties. The court was primarily concerned with a dismissal pursuant to La. C.C.P. art. 1672, which, as we noted above, technically applies to private persons, not the state, a state agency, a political subdivision of the state, or an officer or employee of the state, state agency, or political subdivision. In the case at bar, we are concerned only with a dismissal of Reese, a state employee; we do not address nor are we concerned with any other party defendant. Because Reese is a state employee and sued in that capacity, Lockett was required by La. R.S. 13:5107D to request service upon Reese within 90 days of the commencement of the action. No evidence of “good cause,” required by La. C.C.P. art. 1672, appears in the record before us and a trial court’s grant of an extension must on its face reflect bona fide grounds for the extension specifically (or by incorporation) in its order. Unlike Bordelon, the issue of prescription is not before us.

In Patterson, supra, the Third Circuit affirmed a trial court decision that the plaintiff had failed to show good cause for withholding service beyond the 90-day limitation upon a school board employee. The court reasoned that the untimely-served defendant, a coach of a public high school athletic team, could easily be located at the school at which he worked; therefore, service could have been requested at the school, there being no requirement in law that service had to be made upon the defendant at his domicile.

The Third Circuit’s decision supports our decision herein. We specifically note that in the case at bar (1) Lockett had Reese’s residential address, for he stated it in his original petition requesting that service be withheld and (2) Reese was at all times a judge of the Civil District Court for the Parish of Orleans and service 1 scould have been requested upon him at the courthouse. Thus, no grounds are shown or existed for delaying the request for service.

The trial court below erred in giving effect to Lockett’s ex parte extension of time to serve the citation. It therefore erred in failing to grant Reese’s motion to dismiss Lockett’s suit without prejudice.

For these reasons, we reverse the judgment of the trial court and dismiss without prejudice Lockett’s suit against Reese.

WRIT GRANTED; JUDGMENT REVERSED.

      . Although Lockett makes other allegations, the underlying facts of the case are technically immaterial to the disposition of this writ; accordingly, they are neither detailed nor explained further herein.

      . Although Lockett asserts in the motion that he reserved the right to supplement and amend in an allegation in his original petition, the statement is terminologically inexact, for no such allegation is made in the petition filed on 13 June 2003. Nevertheless, Lockett was free to supplement and/or amend his petition at any time before answer without leave of court and after answer could supplement and/or amend with leave of court. La. C.C.P. art. 1151.

      .Specifically, the order stated that “plaintiff's motion to enlarge the period within which he may serve process to the defendants is granted until October 10, 2003.”

      4. Article 1201(C) sets the time limit at 90 days from commencement of the action.