author: I JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Walter L. BAILEY.
    No. 04-KA-85.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Appellate Counsel, Vincent A. Paciera, Jr., Trial Counsel, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Martin E. Regan, Jr., Kristen A. Moe, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   I JAMES L. CANNELLA, Judge.

The Defendant, Walter Bailey, appeals his conviction of possession of cocaine, and his enhanced sentence as a fourth felony offender. We amend the enhanced sentence, affirm the conviction and enhanced sentence as amended and remand.

On May 15, 2002, the Defendant was charged with possession of cocaine, a violation of La. R.S. 40:967(c), and he pled not guilty. In August of 2002, a motion to suppress the evidence was denied after hearing. Following a jury trial on February 12, 2003, the Defendant was found guilty as charged.

The State filed a Habitual Offender Bill of Information on February 18, 2003, alleging the Defendant to be a fourth felony offender. The Defendant denied the alie-gations and a hearing was held on April 1, 2003. At the conclusion, the trial judge found the Defendant to be a fourth felony offender and sentenced the Defendant to 20 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

IsAt approximately 1:30 a.m. on April 21, 2002, Gretna Police Officer Ryan Mekdes-sie was on patrol in a marked police unit in the area of Solon and Pratt Streets, a known drug area, when he observed a vehicle with a burned out right brake light and no license plate. He activated his lights and pulled the vehicle to the side of the road. As he approached the driver’s side window, he noticed through the tinted glass that the license plate was in the back rear window. He then saw the driver, later identified as the Defendant, trying to conceal something between his legs. Officer Mekdessie asked the Defendant for his driver’s license, registration and proof of insurance, at which time he saw an open can of beer. He then told the Defendant to exit the vehicle and advised him that he was under arrest for violation of the open container law.

Once the Defendant was out of the vehicle and under arrest, Officer Mekdessie searched him, which disclosed a cigarette pack in the right front pocket of the Defendant’s pants. Inside the cigarette pack, the Officer found three off-white, rock-like substances that later tested positive for cocaine. A back-up officer arrived at the scene and placed the Defendant in a police vehicle for transport to jail.

On appeal, the Defendant asserts that his conviction should be reversed because the trial judge erred in accepting the prosecutor’s race-neutral reason for peremptorily challenging an African-American juror, that the evidence was insufficient to convict, and the trial judge erred in excluding a certain affidavit. He further asserts that the sentence is excessive and requests a review for patent error. Pursuant to State u Hearold, 603 So.2d 731, 734 (La.1992), we will address the sufficiency 0f the evidence issue first,

| SUFFICIENCY OF THE EVIDENCE

The Defendant asserts that there was insufficient evidence to support his conviction for possession of cocaine. He contends there were inconsistencies in the police officers’ testimonies about whether the drugs were found before or after he was arrested. The Defendant relies heavily on the proffered affidavit of Laurie Scott or Bridget Mareus (Scott/Mareus affidavit) to challenge the credibility of the police officers. The Defendant also states that the drugs were seized after a war-rantless search of the vehicle and not incident to arrest. The Defendant does not assign as an error or challenge the trial court’s denial of his motion to suppress the evidence. Thus, the only issue is whether the evidence produced by the State was sufficient to support the conviction.

To support a conviction for possession of cocaine, the State must prove that defendant knowingly or intentionally possessed the substance. La.R.S. 40:967(C). The standard for appellate review of the sufficiency of evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Johnson, 01-1362, pp. 7-8 (La.App. 5th Cir.5/30/02), 820 So.2d 604, 608, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32. When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Cazenave, 00-183, p. 14 (La.App. 5th Cir.10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La.10/26/01), 799 So.2d 14151. It is not the function of. the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Id.; State v. Marcantel, 00-1629, p. 9 (La.4/3/02), 815 So.2d 50, 56.

At trial, Officer Mekdessie testified that he searched the Defendant after arresting him for violating the open container law. During the search, he found a cigarette pack containing the three off-white, rock-like substances in the right pocket of the Defendant’s pants. Thomas Angelica, an expert in drug chemistry, tested two of the three rocks and testified that they were positive for cocaine. Nothing in the evidence refuted the facts asserted in the testimony. Although the Defendant claims that the ScottyMareus affidavit contradicted Officer Mekdessie’s testimony, it was held to be inadmissible evidence.

The Defendant also claims there were contradictions in Officer Bill Johnson’s testimony. The Defendant claims that Officer Johnson contradicted himself by first stating that he had seen “property” on the back of the car and then stating that he did not know whether the evidence had been seized prior to his arrival. Officer Johnson stated that he arrived at the scene to back up Officer Mekdessie and that when he arrived on the scene, the Defendant was outside the car “on the back” of the vehicle. Officer Johnson handcuffed the Defendant and placed him in the rear seat of a police car. The Officer stated that he saw “property” on the back of the car but did not pay attention to it. He further stated that he did not seize any evidence and did not know if any evidence had been seized prior to his arrival.

There is no contradiction in these statements. The Defendant could have had other personal effects on him at the time the drugs were placed on the back of the car. Furthermore, whether the evidence had been seized prior to Officer Johnson’s arrival is not relevant to whether the Defendant possessed the cocaine. Officer Mekdessie had previously testified that he retrieved the cigarette pack containing |fithe cocaine from the Defendant’s pants. Nothing in Officer Johnson’s testimony contradicts Officer Mekdessie’s testimony that the contraband was found in the Defendant’s possession. Based on the evidence, we find that, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

BATSON CHALLENGE

The Defendant next argues that the trial judge erred in denying his Batson challenge. He asserts that the trial judge correctly found a pattern of discrimination in the State’s peremptory challenges, but erroneously accepted the State’s race-neutral reason for excusing juror Kacie Hoc-kins- (Hockins) because she lived on the street where the incident occurred. The Defendant asserts that such a reason is not sufficiently race-neutral, but rather is a pretext for racial discrimination.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the U.S. Supreme Court held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race. See also, State v. Dunn, 01-1635, p. 7 (La.11/1/02), 831 So.2d 862, 869; La. C.Cr.P. art. 795 C. The Court in Batson set out a three-part analysis to determine whether a violation has occurred, which was also codified in C.Cr.P. art. 795 C. First, the defendant must establish a pri-ma facie case of discrimination. Second, if the requisite showing is made, the burden shifts to the opposing party to offer racially-neutral explanations for the challenged members. Dunn, 01-1635 at pp. 7-8; 831 So.2d at 869. “The neutral explanation must be one which is clear, reasonably specific, legitimate, and related to the particular case at bar.” Id. at p. 8, 831 So.2d at 869. Third, if the race-neutral explanation is tendered, the trial court must decide whether the challenger has proven purposeful discrimination. Id. A trial judge’s determination in this regard rests on credibility evaluations. Thus, the 17trial judge’s decision is entitled to great deference and the reviewing court should not reverse it unless the ruling is clearly erroneous. Batson, 476 U.S. at 98, n. 21, 106 S.Ct. at 1724; Dunn, 01-1635 at p. 8, 831 So.2d at 869. The proper inquiry in this third step is “whether the defendant’s proof, when weighed against the prosecutor’s proffered race-neutral reasons, is sufficient to persuade the trial court that such discriminatory intent is present.” State v. Hobley, 98-2460, pp. 19-20 (La.12/5/99), 752 So.2d 771, 783, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000). The focus is upon the intent of the prosecutor at the time the peremptory strike was used. Id. The trial court should consider all other statements or actions by the prosecutor during voir dire to determine discriminatory intent. Hobley, 98-2460 at p. 20, 752 .So.2d at 783. Responses by the state qualify as race-neutral unless a discriminatory intent is inherent in the prosecutor’s explanation. Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991); State v. Taylor, 99-1311, p. 5 (La.1/17/01), 781 So.2d 1205, 1212, cert. denied, 534 U.S. 844, 122 S.Ct. 106, 151 L.Ed.2d 64 (2001).

In this case, the State exercised five of its six peremptory challenges before a jury was selected. After the jury was selected, but prior to the jury being sworn, the Defendant made a Batson challenge. The trial judge did not hear the Batson challenge until after the jury was sworn. At that time, the Defendant argued that four of the State’s five peremptory challenges were exercised on prospective black jurors, Hockins, J.W. Nunnery (Nunnery), Leslie Sanders (Sanders), and Eric Anderson (Anderson), which resulted in an all-white jury. The trial judge noted |sthat the Defendant’s Batson challenge was properly made and asked the prosecutor to provide race-neutral reasons for challenging the jurors.

The prosecutor stated that he excused Hockins because she lived on the street on which the crime occurred, Pratt Street. He noted that she might have seen or heard something or might know two of the defense witnesses. The prosecutor stated that he excused Nunnery because he was very nervous. The prosecutor noted that Nunnery’s hands were shaking, that he had problems speaking to the trial judge, and that he took a long time to answer the voir dire questions. The prosecutor explained that he challenged Sanders because her nephew had been charged with armed robbery. He excused Anderson because he had been a victim of burglary and was not satisfied with the way the police handled the investigation into the burglary. Thereafter, the trial court accepted the prosecutor’s reasons as race-neutral and denied the Defendant’s Batson challenge. The prosecutor’s explanations in this case were racially neutral. Thus, the thrust of the Defendant’s argument pertains to the third step, which is proof of purposeful discrimination.

At trial, the Defendant challenged the prosecutor’s explanation for excusing Hoc-kins by stating, “[the prosecutor] had the information where she lived. He could have asked her those questions and rehabilitated her or attempted to cause her for that reason.” The Defendant did not dispute that Hockins lived on the street where the crime occurred.

In State v. Harris, 01-408 (La.6/21/02), 820 So.2d 471, the Louisiana Supreme Court was faced with a similar issue of whether the State’s explanation for excluding a prospective juror because he lived near the crime was a pretext for race. The Supreme Court acknowledged that some courts have accepted such a justification as a race-neutral reason. However, in Harris, the Court determined |sthat the prosecutor’s explanation was a pretext for racial discrimination because the prosecutor first offered the explanation that the prospective juror was the only single black male on the panel with no children, but then stated he did not want the juror relating more to the defendant’s side of the case. It was only after offering these explanations that the prosecutor added that the juror lived in Harvey, which was near the crime scene. The court determined that the state’s explanation that its sole reason for excluding the juror based on his residency was unpersuasive and was simply a pretext to its true racial reason for excluding the juror.

This case is distinguishable from Harris. Here, the prosecutor did not mention race when providing his explanation for challenging Hockins and the juror’s residency was not the prosecutor’s after-thought or secondary explanation. In addition, the Defendant made no showing that the residence based challenge was a surrogate for race. The prosecutor explained his concern that because the juror lived on the same street as the arrest, she may have seen or heard something about the crime. None of the reasons indicate a pretext for racial discrimination. Further, the record reflects that the prosecutor provided reasons other than residence when explaining the challenges for the other prospective black jurors.

Considering that a trial judge’s determination pertaining to purposeful discrimination rests largely on credibility evaluations and great deference is given to the trial judge in his determination, we find that the trial judge did not err in denying the Defendant’s Batson challenge.

EXCLUSION OF THE SCOTT/MA-REUS AFFIDAVIT

The Defendant claims that the trial court erred in finding the Scott/Mareus affidavit inadmissible. He argues that its maker was an unavailable witness because she previously asserted her Fifth Amendment right against self-incrimination. As such, the Defendant maintains that her affidavit was admissible as an exception to the hearsay exclusion. The Defendant argues that the affidavit ¡ 10was admissible as a statement against interest by a witness who was unavailable for trial.

At the hearing on the motion to suppress prior to trial, the Defendant requested an instanter subpoena for Bridget Ma-reus (Mareus). She was brought to the hearing and sworn as a witness, at which time she refused to answer and invoked her Fifth Amendment right against self-incrimination to all questions. At trial, the Defendant sought to introduce the affidavit of Laurie Lynn Scott (Scott), allegedly Ma-reus, who he claimed was with him at the time of his arrest. He offered her affidavit rather than her live testimony on the basis that she would again assert her Fifth Amendment rights and was thus,' an unavailable witness and there was no other way to get her statement into evidence. The Defendant also offered the testimony of attorney John Benz (Benz), the attorney that prepared the affidavit, regarding the contents of the document and the circumstances under which it was prepared. The State objected on the basis that Benz’s testimony was hearsay, but the trial court allowed the testimony to be proffered.

Benz testified that a person named Laurie Lynn Scott came to his office with the Defendant and Steven Bailey (Bailey), the Defendant’s father, on May 29, 2002. Benz stated that he prepared a notarial affidavit in which Scott swore she was with the Defendant on April 21, 2002 when they were stopped by the police and that the police searched the car and found drugs in a cigarette pack that she had hidden in the dash of the car. Scott stated that the police never asked her if the drugs were hers, but told her to leave the scene. She further stated that the three rocks of cocaine were hers and the Defendant did not know she had the drugs. Benz explained that he talked to Scott in private and that Scott signed the affidavit out of the others’ presence. Benz further testified that could not confirm Scott’s identity because she could not produce a driver’s license.

|nAfter Benz’s testimony, the trial judge ruled that Benz’s testimony and the affidavit were inadmissible at trial. The trial judge stated that the affidavit was unreliable because there was a question as to who the person was, her motivation, whether she was coerced because she was accompanied by the Defendant, and the State would not have the opportunity to cross-examine her.

The admissibility of statements against interest is controlled by La.C.E. art. 804. Article 804 provides certain exceptions to the general rule against admissibility of hearsay statements when the declarant is unavailable. Article 804 provides in pertinent part:

A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement;
B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
3) Statement against interest. A statement which was at the time of its making so far contrary to. the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. [Emphasis added]

The admission of statements against interest is based on necessity and trustworthiness. State v. Hammons, 597 So.2d 990, 996 (La.1992). A statement exposing the declarant to criminal liability and which is offered to exculpate the | ^accused requires corroborating circumstances indicating its trustworthiness. La. C.E. art. 804(B)(3). The accused bears the burden of satisfying the corroboration requirement. Hammons, 597 So.2d at 996-997. Evidence independent of the statement which directly or indirectly tends to establish a matter asserted by the statement may satisfy the burden. Id at 997. Examples of typical corroborating circumstances include, “statements against the declarant’s interest to an unusual or devastating degree, or the declarant’s repeating of consistent statements, or the fact that the declarant was not likely motivated to falsify for the benefit of the accused.” Hammons, 597 So.2d at 997.

In Hammons, the defendant sought a new trial on the basis of newly discovered evidence. At the hearing, the defendant introduced the statements of a man who admitted organizing and participating in the robbery. The statements had been made by the man to an informant. The trial court denied the defendant’s motion for a new trial after finding the evidence would not be admissible because of the lack of corroborating circumstances indicating the trustworthiness of the statements. The Court of Appeal affirmed the trial court’s ruling, but the Supreme Court reversed. The court found that the declar-ant was unavailable because he asserted his privilege against testifying at the hearing on the motion for new trial and the statements were against the declarant’s penal interest because of his admission to criminal acts which the declarant knew to be criminal and punishable by a significant length of imprisonment. The court then concluded that there was enough corroborating circumstances to indicate the trustworthiness of the statements and, hence, their admissibility at a new trial. The court relied on the following factors: (1) the declarant made the statements to an unknown informant, (2) the declarant repeated his statements concerning his participation in the robbery on several occasions and not in a single isolated incident, (3) some of the statements were recorded which provided irrefutable evidence that the statements 11swere in fact made, (4) the declarant had not been charged with a crime and was not making the statement to put himself in a bargaining position with the police, and (5) there was nothing to suggest the statements were made under motivation to benefit the defendant. The court also noted external corroborating circumstances, that the declarant’s identification of the actual gunman during the robbery bore a significant resemblance to the defendant and that the fingerprints on the tape casing handled by the robber did not match the defendant’s prints.

In the present case, it is questionable whether the declarant was “unavailable.” The affidavit purports to be the statement of Scott. Benz testified that Scott could not provide any identification and that he could not state that the person who claimed to be Scott was actually Scott. The Defendant represented to the trial judge that Scott was the same person who had testified at the pre-trial motion to suppress hearing as Mareus and who had invoked her Fifth Amendment right against self-incrimination at that hearing. This connection was questioned by the State. The Defendant also indicated that the witness was not subpoenaed for trial and defense counsel had no idea where the witness was located.

In Hammons, the court found the de-clarant unavailable because he asserted his privilege against testifying at the hearing on the motion for new trial. However, the court noted that the defendant would have to show that the declarant was unavailable at the time of the new trial in order to introduce the statements. State v. Hammons, 597 So.2d at 997, footnote 6.

Even assuming Scott and Mareus are one and the same, the motion to suppress the evidence hearing at which Mareus testified was held on August 6, 2002. Trial was held February 12, 2003. The record indicates that Mareus was imprisoned at the time she invoked her right against self-incrimination at the motion to suppress hearing. Furthermore, the record indicates that Mareus asserted her privilege “at this time.” Circumstances could have changed in six months and 114she may not have asserted the privilege at trial. There is no indication that Mareus intended to assert her privilege at trial. Thus, we find that the Defendant failed to show that Scott/Mareus was unavailable for trial.

Even if Scott/Mareus was unavailable for trial, the Defendant failed to carry his burden of proving corroborating circumstances, indicating the trustworthiness of the statement. The circumstances surrounding Scott’s statements suggest that they were made under motivation to benefit the Defendant. Scott was brought to the attorney’s office by the Defendant one month after the incident to make the statements. Additionally, there is nothing in the record to indicate that the statements were consistently repeated as opposed to an isolated declaration. Furthermore, the trustworthiness of the statements is highly questionable, considering the lack of identification provided by the declarant and the possibility that she used a fake name at the time she made the statements.

Accordingly, we find that the affidavit and the related testimony of Benz was inadmissible and the ruling of the trial judge properly excluded the proffered evidence.

EXCESSIVE SENTENCE

The Defendant asserts that his enhanced sentence is constitutionally excessive. He contends that his cocaine addiction and non-violent criminal history warranted a downward deviation from the mandatory minimum.

The Defendant was found to be a fourth felony offender and he was sentenced to the mandatory minimum of 20 years imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. La.R.S. 15:529.l(A)(l)(c)(i). The predicate convictions were for two drug offenses, possession of cocaine and attempted possession of cocaine, and felon in possession 11sof a firearm. Prior to sentencing, the Defendant stated to the trial judge that he had a drug problem for which he had consistently requested help. He further argued that his criminal history was non-violent and that, because of his drug problem, a lesser sentence than the mandatory minimum was warranted, under State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). The trial judge denied his request.

The Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. Id. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Smith, 01-2574 at p. 6, 839 So.2d at 4. On appellate review, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. Smith, 01-2574, at pp. 6-7, 839 So.2d at 4.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906, p. 6 (La.3/4/98), 709 So.2d 672, 675; State v. Johnson, 03-620, p. 14 (La.App. 5th Cir.10/28/03), 860 So.2d 180, 189. However, if the trial judge finds that an enhanced punishment mandated by La.R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge has the option and duty to reduce such sentence to one that would not be constitutionally excessive Dorthey, 623 So.2d at 1280; Johnson, 03-620 at p. 14, 860 So.2d at 189-190. Nevertheless, downward | ^departures from a mandatory minimum sentence should occur only in rare situations. Johnson, 97-1906 at p. 9, 709 So.2d at 676.

A trial court may depart from the minimum sentence only if it finds clear and convincing evidence rebutting the presumption of constitutionality. Johnson, 97-1906 at p. 7, 709 So.2d at 676. In order to rebut the presumption, the defendant has the burden of showing that:

[h]e is exceptional, which in this context means that because of unusual circumstances this defendant 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.

Id., (quoting State v. Young, 94-1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525, 528, Knit denied, 95-3010 (La.3/22/96), 669 So.2d 1223). This evidence must be substantial. Johnson, 97-1906 at p. 7, 709 So.2d at 676. Thus, the “trial court may not depart from the legislatively mandated minimum simply because of some subjective impression or feeling about the defendant.” Young, 94-1636 at p. 5, 663 So.2d at 528. See also: State v. Bell, 97-1134, p. 14 (La.App. 5th Cir.2/25/98), 709 So.2d 921, 927, unit denied, 98-0792 (La.9/16/98), 721 So.2d 477.

A defendant’s “record of nonviolent offenses cannot be the sole reason, or even the major reason, for declaring a mandatory minimum sentence excessive” because the Habitual Offender Law has already taken into account the question of a defendant’s history of violent or nonviolent offenses. State v. Johnson, 97-1906 at pp. 7-8, 709 So.2d at 676. The mere allegation of being a non-violent habitual offender and a drug addict is not sufficient to find the mandatory minimum sentence excessive. State v. Harbor, 01-1261, p. 7 (La.App. 5th Cir.4/10/02), 817 So.2d 223, 227, unit denied, 02-1489 (La.5/9/03), 843 So.2d 388.

|17In this case, the Defendant has not proven clearly and convincingly that a downward deviation from the mandatory minimum sentence is warranted. Thus, we find that the sentence is not excessive.

ERROR PATENT

The record was reviewed for patent errors, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198. We find two patent errors requiring action by this Court.

First, the trial judge imposed an illegal sentence detrimental to the Defendant when he improperly imposed the Defendant’s enhanced sentence without the benefit of parole. Neither La.R.S. 15:529.1(A)(1)(c)(i), nor La.R.S. 40:967(0) provide that this enhanced sentence must be served without benefit of parole. Therefore, we amend the sentence to allow for the possibility of parole in accordance with the applicable sentencing provisions. See, State v. Chirlow, 99-142, p. 10 (La.App. 5th Cir.6/1/99), 738 So.2d 679, 684-685, writ denied, 99-1996 (La.1/7/00), 752 So.2d 176.

Second, the commitment incorrectly states that the trial judge vacated the Defendant’s original sentence, when the transcript shows that the trial judge did not impose an original sentence. Where there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Consequently, we will order the commitment to be amended to correct this discrepancy.

Accordingly, we hereby affirm the Defendant’s conviction and amend his enhanced sentence to allow for the possibility of parole in accordance with the 11Rapplicable sentencing provisions. We remand the case for the trial court to correct the commitment in accordance with this opinion.

SENTENCE AMENDED, CONVICTION AND SENTENCE AFFIRMED AS AMENDED, REMANDED.

      . It is noted that the Defendant did not file a motion for post-verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821. Although he did file a motion for new trial, procedurally there is a distinction between the two motions. However, such failure does not preclude appellate review of the sufficiency of the evidence. State v. Washington, 421 So.2d 887, 889 (La.1982); State v. Hanell, 01-841 (La.App. 5th Cir.2/26/02), 811 So.2d 1015, 1017, footnote 3.

      . The admissibility of the proffered affidavit is addressed infra in assignment of error three.

      . A Batson challenge is timely if it is made prior to the jury being empaneled and sworn. La.C.Cr.P. art. 795(B)(1); State v. Duncan, 99-2615, p. 17 (La.10/16/01), 802 So.2d 533, 546-547, cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002).

      . A trial judge's demand that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense has presented enough evidence to meet the initial burden in step one, or that a prima facie case of discrimination' has been made. State v. Green, 94-0887, p. 25 (La.5/22/95), 655 So.2d 272, 288.

      . No original sentence was imposed on the underlying possession of cocaine conviction.

      . There are errors in the habitual offender bill of information, but they are typographical and/or are not prejudicial to the Defendant, i.e. incorrect date that the bill was filed and incorrect date of conviction of one of the predicate felonies. Thus, we need not address them in the opinion.

      . The trial judge is not mandated to sentence the defendant on the original offense prior to enhancing the sentence. See: State v. Bell, 00-1084 (La.App. 5th Cir.2/28/01), 781 So.2d 843, 845, footnote 1, writ denied, 01-776 (La.4/26/02), 813 So.2d 1098.


source: Caselaw Access Project

author: I ¿THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Robert E. TAYLOR.
    No. 04-KA-90.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Kia M. Habisreitinger, Kenneth Bordelon, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   I ¿THOMAS F. DALEY, Judge.

The defendant, Robert Taylor, has appealed his convictions of possession of cocaine and possession of hydrocodone. After pleading guilty to being a third felony offender, he received two concurrent five year sentences. For the reasons that follow, we affirm the convictions and remand this matter to the trial court with instructions.

FACTS:

Robert Taylor was charged with possession of marijuana, possession with intent to distribute cocaine, and possession of hy-drocodone. He pled not guilty to all counts. He proceeded to trial before a jury on the cocaine and hydrocodone charges and was tried by the judge on the marijuana charge. Robert Taylor was found guilty of possession of cocaine and possession of hydrocodone. He was also convicted of possession of marijuana, but that conviction has not been appealed.

At trial, Agent Richard Valley testified that on the morning of February 20, 2002, while working for the Jefferson Parish Sheriffs Office, he and Deputy |aLance Williams participated in a narcotics “roundup.” Agent Valley explained that a roundup consists of several officers carrying out a large number of arrests within a specified time period, targeting individuals for whom arrest warrants have been issued.

At 5:40 a.m., Agent Valley and Deputy Williams went to the residence at 3820 Clover Lane in Harvey to arrest one Robert Taylor on an outstanding warrant. The officers knocked on the door, and defendant’s mother, Kathy Taylor, responded. The officers identified themselves and asked whether Robert Taylor was there, and Ms. Taylor said that he was not. The officers asked whether they could enter and search the house. Ms. Taylor responded, “No problem. He ain’t here.”

Agent Valley and Deputy Williams looked around the second floor of the residence. They found defendant and his young son sleeping on a mattress on the floor of one of the bedrooms. The officers turned on a light in the room and asked defendant his name. Defendant, who was dressed only in underwear, told them he was Robert Taylor. The officers, assuming defendant was the Robert Taylor named in the arrest warrant, told him to get dressed. When they asked him where his pants were, he pointed to a pair of black jeans lying on the floor among a pile of adult male clothing.

Deputy Williams testified that he picked up the pair of pants to which defendant pointed, and checked the garment for weapons. Deputy Williams felt lumps in the pants pockets. He reached into one pocket and retrieved a bag containing narcotics, including several rock-like objects which he recognized as crack cocaine . In another pocket, Deputy Williams found a large roll of currency. When Deputy Williams removed the items from the pants, Robert Taylor said, | ¿“Oh, no, those aren’t mine.” Deputy Williams nevertheless placed Robert Taylor under arrest for possession of the narcotics, and advised him of his rights. He dressed in the pants and other clothing from the bedroom floor. Agent Valley asked him how he obtained the money found in the pants. He said that he had earned the money working as a barber.

The arresting officers ultimately discovered that defendant was not the Robert Taylor named in the arrest warrant; he was that man’s son. The Robert Taylor named in the warrant was not at the residence on the morning of February 20, 2002.

Sergeant Bruce Harrison of the Jefferson Parish Sheriffs Office was accepted by the court as an expert in the abuse, packaging, distribution, and value of illegal narcotics. Sergeant Harrison testified that the primary factors used in distinguishing possession of narcotics with intent to distribute from simple possession are (1) the amount of narcotics seized, (2) the manner of packaging, and (3) the value of the narcotics. Sergeant Harrison testified that the amount of cocaine seized from the pants had a street value of $5,600.00 and that he had never seen an individual have this amount of cocaine for personal use.

Lyntrell Taylor, defendant’s wife, testified that she, her husband, and their four-year-old son, were sleeping at her in-laws’ home on the morning of February 20, 2002. The family had gathered there due to the recent death of her husband’s grandmother. Lyntrell Taylor testified that when the officers arrived, she went to the door with her mother-in-law. She disputed the officer’s testimony that they spoke with the defendant’s mother, Kathy Taylor, rather she testified that she spoke with officers and repeatedly asked the officers to show her a search warrant. Lynt-rell Taylor testified that when the officers did not produce a search warrant, she telephoned 9-1-1 three times to lodge complaints. The defense moved the 1¡¡court to allow admission of tapes of those calls to 9-1-1. The judge ruled the tapes inadmissible, as the defense had not offered proper authentication.

Lyntrell Taylor further testified that the pants in which- the narcotics were found did not belong to her husband, the defendant. Rather, she explained that his pants were next to him on the bedroom floor, and that she handed them to him herself. She further testified that he was not wearing the black pants when the officers took him. Lyntrell Taylor speculated that the black pants seized by the officers belonged to her father-in-law, who kept some of his clothing in a closet in the room where her husband was sleeping. Lyntrell Taylor explained that when the her husband was taken to jail, he had $1,200.00 in cash, 14 keys, a belt, a watch, rings, and miscellaneous papers. She reasoned that if the black pants that contained the narcotics were for her husband, then the arresting officers would have removed all of the cash as well as the other items out of the pockets.

On State’s rebuttal, Agent Valley testified that Lyntrell Taylor, defendant’s wife, was not in the bedroom with defendant when the cocaine and hydrocodone were recovered. Agent Valley testified that he believed Kathy Taylor, defendant’s mother, was in the doorway to the bedroom when he and Deputy Williams entered.

LAW AND DISCUSSION:

In his first Assignment of Error, the defendant argues the trial court erred in failing to grant his Motion to Suppress the narcotics found in the black pants on the bedroom floor because this evidence was illegally retrieved. Specifically, defendant argues that the officers performed an improper pat-down search under LSA-C.Cr.P. art. 215.1, and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In the instant case, however, the police did not stop defendant in a public place, as was the case in Terry; they went to Ms door and knocked. See, State v. Sanders, 374 So.2d 1186, 1188 (La.1979).

[(¿The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. A search made without a warrant issued upon probable cause is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). A consent to search is such an exception when it is freely and voluntarily given by a person who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); State v. Edwards, 97-1797, p. 11 (La.7/22/99), 750 So.2d 893, 901, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999).

Oral consent is sufficient to constitute an exception to constitutional warrant and probable cause requirements. State v. Ossey, 446 So.2d 280, 287, fn. 6 (La.1984), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984); State v. Enclade, 03-353, p. 9 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 15. When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was freely given. State v. Enclade, supra. Voluntariness of consent is a question of fact which the trial judge is to determine based on the totality of the circumstances. Id. The trial judge’s ruling on a Motion to Suppress will not be disturbed on appeal unless it is clearly wrong. Id.

Based on the evidence adduced at the suppression hearing, the trial judge found that Agent Valley and Deputy Williams received valid oral consent from defendant’s mother, Kathy Taylor, to enter her home. This testimony was repeated at trial. The testimony elicited at the suppression hearing and trial supports the trial judge’s denial of defendant’s Motion to Suppress. Agent Valley testified at 17trial that Kathy Taylor answered when they knocked on the door of the residence. The officers determined that she was the wife of the Robert Taylor named in the arrest warrant. Agent Valley explained that he had a warrant for Robert Taylor’s arrest, and asked whether the subject was at home. She responded that he was not there. When Agent Valley asked whether he could conduct a search, she invited the officers into the house. Deputy Williams’s testimony corroborated that of Agent Valley. The trial judge found the officer’s testimony to be more credible than that of Lyntrell Taylor, defendant’s wife. The credibility of witnesses may not be reweighed on appeal. Id.

Having affirmed the trial judge’s finding that the officers entered the house legally, we must now consider whether they had the authority to search the black pants. Deputy Williams testified at the motion hearing that he and Agent Valley discovered defendant sleeping on a mattress in an upstairs bedroom, wearing only underwear. Defendant’s young son was also sleeping there. The officers turned on the light in the room and awakened defendant. They asked defendant for his name, and defendant replied that his name was Robert Taylor. Deputy Williams further testified:

So, I walk around to one side of the bed thinking this is our guy we’re looking for, Agent Valley stays on the other side. We — He’s in his underwear, I said: Sir, could you put some clothes on, you know, we need to talk to you. We thought we still had the right Mr. Taylor. And he said where’s your pants, Agent Valley asked him where’s his pants, and he indicated a pile of clothing at the foot of his bed.
At that time I retrieved a black pair of jeans, felt the pockets, felt objects in the pockets, reached into the right pocket and pulled a, what I know to be a decent amount of what I believe was crack cocaine, and some other items in the right front pocket in a plastic bag. I reached in the left front pocket, retrieved a huge wad of currency. At this time, Mr. Taylor kind of backpedaled and tried to say that that wasn’t his pants. It was a child’s room, and there were no other adult clothes right there or anywhere in the room. And I advised him of his rights per Miranda and told him he was under arrest.

laAnother of the recognized war-rantless search exceptions is a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Davis, 02-1008, p. 9 (La.App. 5 Cir. 2/25/03), 841 So.2d 952, 960, writ denied, 03-0948 (La.11/7/03), 857 So.2d 516. In a search incident to a lawful arrest, the officer may search the suspect’s person and the area within his immediate control in order to remove weapons and prevent evidence from being destroyed. Id. At the time Deputy Williams searched the pants, he possessed a good faith belief that he was executing an arrest warrant, and was thus entitled to perform a search incident to arrest. At trial, Deputy Williams testified that the pants were on the floor at the foot of the mattress where defendant lay. They were within defendant’s immediate control. Additionally, defendant had identified the pants as his and Deputy Williams searched the pants as a matter of officer safety.

Defendant argues that the officers should have known he was not the suspect named in the warrant, and that their attempt to execute the warrant was not in good faith because he was 22 years younger than his father. At the motion hearing, Deputy Williams testified that the arrest warrant listed the suspect’s date of birth as March 9, 1954. Defendant contends that since he was born in 1976 it was obvious to the officers that he was not the man named in the warrant.

We find that the officers were justified in their belief that defendant was the man named in the warrant. At trial, Agent Valley testified that he knew he was looking for a forty-eight-year-old man. Agent Valley testified that when he saw defendant asleep, he could not tell how old the defendant was. Deputy Williams testified at trial that he did not find any identification when he searched the pants. Defendant himself told the officers that he was Robert Taylor, and defendant was sleeping at the address given in the arrest warrant. Compare, Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), where the United States Supreme Court considered the validity of the arrest (without a warrant) of a man |gnamed Miller based on the mistaken belief that he was the defendant, Hill. The police had probable cause to arrest Hill and they in good faith believed that Miller was Hill when they found him in Hill’s apartment. The Supreme Court found that, considering the officers reasonably believed they had arrested the right man, they were entitled to do what the law would have allowed them to do had the arrestee had in fact been the defendant, that is, to conduct a search incident to arrest and to seize evidence of the crime the officers believed the defendant had committed. Id. at 803-804, 91 S.Ct. at 1110-1111. Accordingly, we find no error in the trial court’s denial of the defendant’s Motion to Suppress the evidence.

In his second Assignment of Error, defendant contends that the trial court erred in declining to admit in evidence a tape recording of 9-1-1 calls allegedly made by Lyntrell Taylor after officers arrived at the Clover Lane house. At trial, Ms. Taylor testified that she telephoned 9-1-1 three times to complain that the officers had entered the residence without a search warrant. She further testified that she purchased an audio tape of those calls from the Jefferson Parish 9-1-1 dispatch, and that the tape accurately reflected the content of those conversations. The prosecutor objected to the admission of the tape in evidence, based upon defendant’s failure to provide proper authentication. The judge agreed with the State’s argument and sustained the objection. The defense made a proffer of the tape and a communications printout with attached cash receipt.

To be admissible at trial, demonstrative evidence must first be authenticated. LSA-C.E. art. 901; State v. Coney, 97-2020, p. 3 (La.11/28/00), 779 So.2d 675, 678, cert. denied, 533 U.S. 907, 121 S.Ct. 2252, 150 L.Ed.2d 239 (2001). The authentication of evidence refers to the process by which the proponent of the evidence proves that it is what he claims it to be. Harges and Jones’ La. Evidence (4th Ed.), p. 346. The initial decision as to authentication is made by the trial judge, using the standard set forth in LSA-C.E. art. 901 A: “The requirement of | ^authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” State v. Frisard, 96-368, p. 16 (La.App. 5 Cir. 4/29/97), 694 So.2d 1032, 1039.

Defendant offers little authority in support of his argument aside from a cursory reference to Article 901. A search of Louisiana jurisprudence has uncovered no criminal opinions interpreting Article 901 with regard to authentication of a 9-1-1 tape by a witness who claims to be one of the parties heard on the recording. The Third Circuit, however, addressed a similar issue in a civil matter, Sutton v. Fleming, 602 So.2d 228 (La.App. 3 Cir.1992). In that case, the defendant-appellant argued that the district court erred in admitting in evidence the tape recording of a conversation he had had with a third party. The appellant asserted that a proper foundation was not laid so as to properly identify the tape. The reviewing court found that the tape was sufficiently authenticated for purposes of LSA-C.E. art. 901, as the appellant identified his own voice on the tape, and further identified the date and place of the recorded conversation. In support of its holding, the Third Circuit pointed to subpart B(5) of Article 901, which provides:

B. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Article:
(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

LSA-C.E. art. 901 tracks Rule 901 of the Federal Rules of Evidence. Courts in various states, interpreting evidence rules identical to Louisiana’s Article 901, have found that voice identification provides a sufficient foundation for admission of a 9-1-1 tape. In State v. Gaither, 161 N.C.App. 96, 587 S.E.2d 505 (2003), review Jj¿denied, 358 N.C. 157, 593 S.E.2d 83 (2004), the court found that a tape recording used as evidence in an armed robbery-trial was properly authenticated as a recording of a 9-1-1 call made during the incident. The court held that it was sufficient that the store security guards who made the call identified their own and each other’s voices on the tape.

In Johnson v. State, 823 So.2d 1 (Ala.Crim.App.2001), writ denied, 823 So.2d 57 (Ala.2001), cert. denied, 535 U.S. 1085, 122 S.Ct. 1978, 152 L.Ed.2d 1035 (2002), a murder case, the court held that the State provided sufficient evidence of the authenticity of a 9-1-1 tape recording. A witness testified that he had listened to the tape of the 9-1-1 calls he placed on the night of the murder, and that the tape was an accurate representation of what had transpired during those calls. Although the witness did not identify all of the voices and noises that could be heard in the background of the recording, the court found that identification of every sound on a tape is not necessary for its admission. Johnson, 823 So.2d at 24.

In State v. Jackson, 113 Wash.App. 762, 54 P.3d 739 (Div. 2, 2002), the court held that in a prosecution for first degree assault, the State properly authenticated a tape recording of the 9-1-1 call for help. A witness in that case testified that she made the telephone call for help, that she reviewed the tape recording of her call, and that the tape accurately portrayed what was said.

In State v. Muscari, 174 Vt. 101, 807 A.2d 407 (2002), the court rejected the defendant’s claim that a recording of the 9-1-1 telephone call placed by a domestic assault victim during the offense was not properly authenticated. At trial the State relied upon the victim’s testimony identifying the voice on the tape as her own. The court cited as authority V.R.E. 901(a), which provides that a tape recording is authenticated for admissibility “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The reviewing court held that the state could authenticate the recording by “ ‘[(Identification of a voice, ... by I ^opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.’ Id. 901(b)(5).” Muscari, 807 A.2d at 412. See also, United States v. Hamilton, 334 F.3d 170, 186-187 (2d Cir.2003), cert. denied, - U.S. -, 124 S.Ct. 502, 157 L.Ed.2d 378 (2003).

In the instant case, Lyntrell Taylor testified that she had listened to the recording, and could identify one of the voices on it as her own. Ms. Taylor stated that the tape did not leave her possession after she purchased it, and that it had not been altered. She further testified that the tape accurately reflects the conversations she had with the 9-1-1 operator. Based on the foregoing jurisprudence, we find that the trial court erred in ruling that the defense failed to provide a sufficient foundation for the tape’s admission in évidence.

The defendant proffered the tape into evidence, and this Court’s review of the tape indicated the following: At 5:47 a.m., Lyntrell Taylor telephoned 9-1-1 stating that the police were at the house going through the house and did not have a warrant. A female voice in the background stated that they had a warrant and would give it to Lyntrell Taylor when she was finished. Lyntrell Taylor requested that an officer be sent to the house. The next call was placed a 5:55 a.m. Lyntrell Taylor stated “they took my husband ... I don’t know where they are taking him.” Again she asked for an officer to be sent out. The third entry on the tape appears to be an officer calling from the residence, checking on the item number for the arrest. The fourth and final entry on the tape merely states an item number.

Based on our review of the proffered tape, we find that the impact of the copy of the 9-1-1 tape would have been minimal. Defendant wished to show, by use of the tape, that Lyntrell Taylor complained to authorities that officers had entered the house without a search warrant. Lyntrell Taylor herself testified extensively as to her request for a search warrant from the officers and her repeated 9-1-1 calls. Her testimony was not disputed by the State’s witnesses. The officers 113did not claim to have had a search warrant for the Clover Lane house. They testified that they had a warrant for the arrest of one Robert Taylor, and that they went to the house to execute that warrant.

In determining that an error was harmless, the reviewing court must be able to say that the jury’s verdict was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). If one considers what it was that the defense sought to prove through the use of the tape, it seems unlikely that the evidence would have altered the verdict. Defendant wished to show, by use of the tape, that Lyntrell Taylor complained to authorities that officers had entered the house without a search warrant. However, Lyntrell Taylor herself testified to that at trial. Her testimony was not disputed by the State’s witnesses. The officers did not claim to have had a search warrant for the Clover Lane house. They testified that they had a warrant for the arrest of one Robert Taylor, and that they went to the house to execute that warrant.

The officers did not require a search warrant to enter the house. Agent Valley and Deputy Williams testified that they had Kathy Taylor’s consent to enter. Lyntrell Taylor testified that the house belonged to Kathy Taylor and her husband. The evidence showed that Kathy Taylor had the authority to allow the officers into the house. Moreover, defendant does not argue on appeal that Kathy Taylor’s consent to search was invalid. It was, therefore, of no consequence whether the officers had a search warrant, or whether Lyntrell Taylor called 9-1-1 to complain that they did not have a search warrant. Thus, we eoncludé the trial court’s error in failing to admit the. 9-1-1 tape was harmless error.

The record was reviewed for errors patent in accordance with LSA-C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La.1975).

1 uLSA-C.Cr.P. art. 930.8 provides that a defendant has two years from the date “the judgment of conviction and sentence has become final” within which to file an Application for PosL-Conviction Relief. Subpart C of the article requires the trial judge to inform the defendant of the prescriptive period at the time of sentencing. The record does not show that the judge so instructed defendant. Accordingly this matter is remanded to the trial court, which is ordered to supply defendant, Robert Taylor, with written notice of the prescriptive period under Article 930.8, and to file written proof of said notice in the record. See, State v. Stelly, 98-578, p. 6 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.

Further, the trial court improperly denied defendant, Robert Taylor, parole eligibility when it imposed the habitual offender sentence on count two. LSA-R.S. 15:529.1(G) requires only that a habitual offender sentence be served without benefit of probation and suspension of sentence. Accordingly, we vacate defendant’s habitual offender sentence and remand for re-sentencing in accordance with the Habitual Offender Law.

The record further reflects that the commitment is incorrect and/or misleading in several respects. First, it states that “[t]he following charges have been resolved on February 24, 2003.” While the date of the sentencing was February 24, 2003, the date on which defendant was found guilty was January 29, 2003. The transcript properly indicates that defendant was found guilty of the lesser offense of possession of cocaine as to count one. However, the commitment contains a reference to the original charge of possession with intent to distribute cocaine. The commitment shows that defendant “pleaded guilty” to count two, possession of hy-drocodone, when he was in fact found guilty of that offense by a jury. The entry regarding the habitual offender sentence does not clearly indicate which of defendant’s two sentences was enhanced, or that the original sentence |1Bwas vacated. Moreover, the commitment fails to show that the trial court ordered the enhanced sentence on count two run concurrently with the sentence on count one. On remand the trial court is ordered to amend the commitment so that it properly reflects the proceedings below and is in agreement with the transcript.

CONCLUSION:

For the foregoing reasons, the defendant’s, Robert Taylor’s, conviction is affirmed and his habitual offender sentence is vacated. This matter is remanded to the trial court for resentencing in accordance with the Habitual Offender Law, for instructing the defendant, Robert Taylor, of the time period for seeking post conviction relief, and for correction of the commitment.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS

      . The parties entered into a stipulation that the report of crime lab technician Daniel Waguespack showed that the off-white substance seized tested positive for cocaine, and that five white tablets marked “Vicodin ES” tested positive for hydrocodone. The parties further stipulated that if Waguespack were to testify at trial, his testimony would be consistent with his report in the instant matter.

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

      . In reviewing Me ruling on the Motion to Suppress, the appellate court will look to the totality of the evidence presented at both the hearing on the Motion to Suppress and at trial. State v. Joseph, 02-717, p. 4 (La.App. 5 Cir. 6/27/03), 850 So.2d 1049, 1052.

      . A warrantless search may be valid even if consent was given by one without authority, if the facts available to the officers at the time of entry justified the officers’ reasonable, albeit erroneous, belief that the one consenting to the search had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 185-189, 110 S.Ct. 2793, 2799-2801, 111 L.Ed.2d 148 (1990).

      . Where the transcript and a minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (1983).


author: I,SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Michael ADAIR.
    No. 04-KA-120.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Anthony G. Falterman, District Attorney, Donald D. Candell, Assistant District Attorney, Twenty-Third Judicial District, Parish of St. James, Convent, LA, for Plaintiff/Appellee.

      Jennifer L. Pate, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and THOMAS F. DALEY.
   I,SOL GOTHARD, Judge.

Defendant, Michael Adair, filed this criminal appeal seeking review of his sentence. For reasons that follow, we affirm.

Adair was charged with negligent homicide in violation of La. R.S. 14:32.1(2) as a result of the death of a passenger, Pershing Dempster, III, in a vehicle Adair was driving. At the time of the accident, Adair’s blood alcohol level was .19%. Adair pled guilty as charged and was sentenced to ten years at hard labor, with the first year to be served without benefit of probation, parole or suspension of sentence.

In brief to this court, Adair assigns two errors. In the first, he contends he had ineffective assistance of counsel because his trial counsel failed to file a motion to reconsider sentence. In the second he argues his sentence is excessive.

La.C.Cr.P. art. 881.1(B) provides that a motion for reconsideration of sentence “shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.” La.C.Cr.P. art. 1S881.1(E) provides that “failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” At the time of sentencing, the defense attorney stated that he “would like to object to the sentencing.” However, he did not urge that the sentence was excessive or specify any grounds for the objection to the sentence. Nevertheless, this court has reviewed a defendant’s constitutional challenge of a sentence even in the absence of a motion to reconsider sentence. State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, merely limits a defendant to a bare review of the sentence for constitutional excessiveness. Id. In accordance with our prior jurisprudence, the defendant’s claim of constitutional exces-siveness is addressed.

Because we are considering the merits of defendant’s claim that his sentence is unconstitutionally excessive, we find no merit in the claim of ineffective assistance of counsel. The defendant was not prejudiced by counsel’s failure to file a motion to reconsider sentence when the sentence is reviewed for constitutional ex-cessiveness on appeal. State v. Lewis, 98-672 (La.App. 5 Cir. 3/10/99), 732 So.2d 556, 561, turit denied, 99-2818 (La.4/20/00), 760 So.2d 334.

The Eighth Amendment of the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is generally considered to be excessive if it is grossly disproportionate to the offense or imposes needless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Pendelton, 783 So.2d at 465. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pendelton, supra; La.C.Cr.P. art. 881.4(D).

The penalty for vehicular homicide is provided in La. R.S. 14:32.1(B) as follows:

Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than two years nor more than twenty years. At least one year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court shall require the offender to participate in a court-approved substance abuse program or a court-approved driver improvement program, or both. All driver improvement courses required under this Section shall include instruction on railroad grade crossing safety.

Defendant received one-half of the maximum term of imprisonment. His chief complaint is that the trial judge had no basis for imposing the sentence. The trial judge’s written reasons list the following in support of the imposed sentence:

1. There is an undue risk that during the period of a suspended sentence or probation the defendant would commit another crime.
2. The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
3. A lesser sentence would deprecate the seriousness of the defendant’s crime. The defendant has shown a complete disregard for a human life. The defendant denied driving the vehicle and delayed giving information about the location of the victim to emergency rescue personnel. A human life was loss [sic] because of the actions of the defendant.

The Louisiana Supreme Court has stated that the question presented when reviewing a defendant’s sentence is not “whether another sentence would have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131, 1133. Prior criminal activity is one of the factors to be considered by the trial judge in | .^sentencing a defendant.,. Prior criminal activity is not limited to convictions. State v. Washington, 414 So.2d 313, 315 (La.1982); State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219.

The pre-sentence investigation report (PSI) contains evidence of defendant’s pri- or criminal activity, including several prior arrests. Among the offenses for which defendant was arrested are disturbing the peace and speeding in 1983, and aggravated assault in 1988. The defendant was also arrested for first offense DWI in 1993, which led to a conviction, followed by the instant offense in 1999.

The PSI indicates that defendant has a history of alcohol use. Defendant, who was forty-one years old at the time of the offense, told the officer conducting the pre-sentence investigation that he consumes a case of beer every other weekend since his divorce. The victim’s mother, Kathy Dempster, said in her statement attached to the PSI, that defendant had been previously warned about drinking and driving to no avail. The victim’s fourteen-year-old sister pled for a severe sentence to prevent defendant from drinking and driving as he had done in the past. Even one of the letters on defendant’s behalf acknowledges that defendant “did have a drinking problem.”

The trial judge’s written reasons indicate that the judge found defendant’s actions following the accident adversely affected the victim’s survival. The information in the record seems to support the trial judge’s finding. According to Mrs. Dempster, the victim drowned in two feet of water. Mrs. Dempster related that rescue personnel were on the scene within five minutes of the crash, and told her the victim could have been saved. The state trooper’s narrative supplement reflects that defendant did not admit driving the car until after he was arrested at the hospital.

Under similar factual circumstances, State v. Cook, 95 2784 (La.5/31/96), 674 So.2d 957, 958-959 (per curiam), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, |fi136 L.Ed.2d 539 (1996), held that a nine-year sentence was not constitutionally excessive for a defendant who pled no contest to vehicular homicide after striking an eighteen-year-old bicyclist and then left him to die by drowning in a muddy ditch. In that case, the defendant was a single mother who maintained gainful employment. However, the trial court found the defendant’s flight from the scene “ ‘manifested deliberate cruelty to the victim’ adding to ‘this already serious act ... a greater degree of culpability’ because it ‘could have meant the difference between an individual living and dying.’ ” Id. at 958. See also, State v. Trahan, 93-1116 (La.App. 1 Cir. 5/20/94), 637 So.2d 694, 708-709.

In the present case, the trial court concluded that defendant’s actions following the accident showed a complete disregard for human life because he denied driving and delayed giving information to rescue personnel about the victim’s location. The record seems to support the trial judge’s conclusions, considering that the autopsy report indicates Dempster only had superficial injuries to his head and that there was no severe head or cerebral damage. After considering the record, including the letters attached to the PSI from the victim’s mother and sister, and defendant’s friends and former employer, the trial judge obviously concluded that a sentence of one-half the maximum term of imprisonment was appropriate. “The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.” State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158, 1167. Under all of the circumstances in this case, we see no abuse of the trial court’s sentencing discretion.

In our review of the record for errors patent pursuant ’to La.C.Cr.P. art. 920, we find that the sentence is illegally lenient as it does not impose the mandatory fine. Neither the state, nor the defendant has presented the issue for our review. While we recognize our authority to correct the sentence on our own motion, we |7decline to take such action. See; State v. Turner, 03-325 (La.App. 5 Cir. 6/19/03), 850 So.2d 811, 819, writ denied, 03-2170 (La.1/30/04), 865 So.2d 74. We also note that the trial court failed to require defendant to participate in appropriate treatment programs. Because we find this may be of benefit to defendant, we remand the matter to the trial court for compliance with this portion of La.C.Cr.P. art. 14:32.1(B).

Accordingly, the defendant’s guilty plea and sentence are affirmed. The matter is remanded to the trial court for consideration of the appropriate treatment program in accordance with La.C.Cr.P. art. 14:32.1(B).

AFFIRMED AND REMANDED.


author: | ¡MARION F. EDWARDS, Judge.

text:
    T.L. JAMES & COMPANY, INC. and Highlands Insurance Company v. SAM’S TRUCK SERVICE, INC.
    No. 03-CA-1470.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Charles M. Lanier, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Steven K. Faulkner, Harahan, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | ¡MARION F. EDWARDS, Judge.

Appellants, T.L. James & Company, Inc., and Highlands Insurance Company, appeal a judgment which dismissed their claims against plaintiff, Sam’s Truck Service, Inc., with prejudice. For the foregoing reasons, the judgment of the trial court is hereby reversed.

FACTS AND PROCEDURAL HISTORY

Appellant, T.L. James & Company, Inc. (“T.L. James”), was hired to help facilitate work on the St. Charles hurricane levee, owned by the U.S. Army Corps of Engineers, New Orleans District. On July 25, 1994, T.L. James signed a Subcontract Agreement with Sam’s Truck Service, Inc. (“Sam’s”), to assist them with a portion of the hurricane levee project. Thereafter, Sam’s further orally agreed to subcontract a portion of its work for T.L. James to yet another entity, Arabi Brothers Trucking, Inc. (“Arabi”).

On September 7, 1994, an employee of Arabi Brothers was involved in a collision at the levee job site with a vehicle owned by Miller Excavating Services, Inc. (“Miller.”), who, incidentally, had also entered into a subcontract |awith T.L. James for work on the hurricane levee project. An employee of Miller, Viola Charles, was injured as a result of the accident, and filed suit against T.L. James to recover benefits under the Louisiana Worker’s Compensation Act, alleging that she was T.L. James statutory employee. Sam’s refused T.L. James’ request for defense and indemnity made on April 18, 1996.

T.L. James’ worker’s compensation insurer, Highlands Insurance Company (“Highlands”), ultimately paid Charles $18,000 in worker’s compensation benefits. In the process of defending Charles’ claim for benefits, Highlands incurred $17,356.91 in attorney’s fees, and $1,953.07 in costs. T.L. James and Highlands then intervened in Charles’ tort suit against Arabi to recover their compensation lien and to resolve the issue of workers compensation benefits. When Charles’ tort suit was settled, T.L. James received all but $5,000 of the worker’s compensation benefits that it had paid to Charles.

In the present suit, T.L. James and Highlands filed suit in the 24th Judicial District Court for the Parish of Jefferson to recover the $5,000 in worker’s compensation benefits, which it claims is owed by Sam’s pursuant to their indemnification agreement, as well as $19,309.98 in attorney’s fees and court costs.

After a trial on April 26, 2002, which was submitted without witnesses and on a stipulation of facts between the parties, the court dismissed T.L. James’ case against Sam’s with prejudice.

It is from this judgment that T.L. James and Highlands timely filed the present appeal.

LAW AND ANALYSIS

On appeal, T.L. James and Highlands raise two assignments of error: 1) The trial judge committed legal error in applying equitable principles in lieu of ^established law of contractual interpretation, and; 2) The trial judge committed legal error in failing to give application to the provisions of the Subcontract Agreement requiring Sam’s Truck Service, Inc., to indemnify T.L. James & Company and Highlands for attorney’s fees it incurred as well as for benefits it paid to Viola Charles.

In this case, the trial court gave the following reasoning in determining that Sam’s did not owe a duty to indemnify T.L. James:

THE COURT:
Sam’s had [sic] indemnity agreement with T.L. James and Highland Insurance Company. Highland does, in the Court’s opinion, step into the shoes of T.L. James ...
I think by operation of law and conventional obligations, Highlands steps into the role of T.L. James.
Sam’s had an indemnity agreement basically to hold harmless T.L. James for anything — any suits that they got because of their work or whatever.
The Court is of the opinion that Sam’s has met its obligation under that indemnity agreement by settling the tort lawsuit.
The Court is of the opinion that the remaining damages or expenses that have been paid by Highlands in attorney’s fees and settlement in the workmen’s comp case are not what was intended with the indemnity agreement with Sam’s; that no way could T.L. James and Sam’s have contracted for an indemnity agreement for another company’s status.
... the Court just does not feel that the indemnity agreement included a[sic] worker’s comp.
The trial Court later explained:
THE COURT:
But the bottom line is that, even under contract, I think that Sam’s contracted with T.L. James to indemnify it for whatever damages they caused and by the settlement of the tort suit, they met their obligation. And that’s the bottom line as to the way that I see the contract also.

As this Court noted in Rossi v. Bailey,

When appellate review is not premised on any factual findings made by the trial court but is based upon an independent review and examination of the contract on its face, the manifest error rule is inapplicable. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect.

LFurther, the general rules which govern the interpretation of other contracts apply in construing a contract of indemnity.

As noted by the Louisiana Supreme Court in Campbell v. Melton:

In interpreting contracts, we are guided by the general rules contained in articles 2045-2057 of the Louisiana Civil Code. The interpretation of a contract is the determination of the common intent of the parties with courts giving the contractual words their generally prevailing meaning unless the words have acquired a technical meaning. La. Civ. Code arts.2045, 2047; see e.g., Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911 (La.1994), 630 So.2d 759, 763. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of the parties. La. Civ.Code art.2046.

Sam’s argues, however, that this Court should first consider a finding of fact made by the trial court, wherein the court stated:

THE COURT:
Regardless of the [sic] whose fault it is, we all agree that if Miller had workers comp or if the agent hadn’t stolen the money, that we wouldn’t be here and that Sam would be off — the hook.

Sam’s further argues, “It is absolutely of no moment that Charles’ injury happened to be caused by a vehicular accident with one of Sam’s subcontractors. This claim would be the same if Viola Charles’ vehicle had been struck by another Miller vehicle, or for that matter, if she had simply fallen while stepping out of her truck.”

A court of appeal may not set aside the findings of the trial court unless they are clearly wrong or manifestly erroneous. Under this standard, the issue is whether the trier of facts conclusion was reasonable, not whether it was right or wrong.

| ⅛⅛. regard to appellants’ first assignment, that the trial court erred in apparently applying equitable principles in lieu of established law of contractual interpretation, we first note our opinion in the case of Labadie v. Physician Network Corp. of Louisiana, Inc., wherein we stated:

Contractual ambiguities must be construed in light of equity, usage, and the parties’ conduct. Louisiana Civil Code articles 2053 and 2054 provide:
A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties.
When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.

Accordingly, we have recognized that under circumstances where provisions of a contract do not specifically enumerate an outcome of obligations between the parties, equity may be used as a factor by the court to resolve disputes. As stated above, however, the use of equity in determining contractual obligations is contingent upon whether portions of the contract at issue are ambiguous.

The applicable provisions of the contract between Sam’s and T.L. James provide, in relevant part:

3.1 [Sam’s] shall not assign all or any part of this Subcontract, including the proceeds, or sublet all or any part of the Subcontract Work provided for hereunder without the prior written consent of [T.L. James], but in any event, and without regard to whether such consent is given or not, [Sam’s] agrees to indemnify and save [T.L. James] harmless. No assignment or subletting, with or without consent, shall reheve [Sam’s] from any obligation herein assumed ... [Emphasis provided]
7.1 [Sam’s] shall defend, indemnify, and hold harmless [T.L. James] ... against any loss, damages, claim, suit, liability, judgment and expenses (including but not limited to attorney fees and other costs of litigation), ... arising out of injury ... arising from or in connection with performance or non performance of the work under this Subcontract by [Sam’s], its agents or subcontractors, even though caused by the joint negligence ... or fault of the party indemnified herein ..., at its expense, shall |7defend any such claim or suit against an indemnified party and shall pay any resulting settlement or judgment ... [T.L. James] shall have the right, but not the duty, to participate in the defense of any such claim or suit with attorneys of its own selection which it shall pay as incurred which fees shall, however, be subject to reimbursement by [Sam’s] as set forth above, but shall not relieve [Sam’s] of any obligations hereunder. [Emphasis added].
11. ATTORNEY’S FEES. [Sam’s] shall be responsible and liable for all costs, disbursements, and expenses, including attorney’s fees, incurred by [T.L. James] ... as a result of [T.L. James] having to defend or take part in any action or proceeding which directly or indirectly relates to acts or omissions of [Sam’s] or its subcontractors or suppliers.

After a de novo review of the contract between the parties, we find no ambiguity that would warrant further interpretation of the parties’ intent beyond the four corners of the contract. The contract between T.L. James and Sam’s clearly provides that Sam’s would indemnify T.L. James against any damages or attorney’s fees arising out of work performed by Sam’s or any of Sam’s subcontractors. Arabi Brothers was a subcontractor of Sam’s at the time of the accident on September 7, 1994. Therefore, under the clear and explicit terms of the contract, there seems to be little question that Sam’s owes a duty of indemnification to T.L. James for attorneys fees and damage awards that it paid as a result of defending the worker’s compensation claim that arose from an injury caused by Arabi Brothers.

We further disagree with the trial court’s notion that the clear intention of the parties in the contract is invalid, simply because of a happenstance that the injured party worked for another T.L. James contractor, and we deem this finding of fact to be manifestly erroneous.

Accordingly, for the foregoing reasons, the judgment dismissing the claims of T.L. James and Highlands is reversed. We further award to Appellants $5,000, representing the amount of worker’s compensation benefits that it had paid to Viola Charles, as well as $17,356.91 in attorney’s fees, and $1,953.07 in costs ]sthat appellants paid in defending those actions. Ap-pellee is further ordered to bear all costs of this appeal.

REVERSED.

      . Miller reportedly did not have insurance as the result of fraudulent dealings by its insur-anee agent.

      . 99-1164 (La.App. 5 Cir. 4/25/00), 759 So.2d 282; writ denied, 2000-1932 (La.9/29/00), 770 So.2d 353

      . Soverign Ins., Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986).

      . 2001-2578 (La.5/14/02), 817 So.2d 69.

        . Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); LaSalle v. Benson Car Co., Inc., 00-1459 (La.App. 5 Cir. 1/30/01), 783 So.2d 404, 408.

        . Stobart v. State, DOTD, 92-1328 (La.4/12/93), 617 So.2d 880, 882.

      . 01-1180 (La.App. 5 Cir. 1/29/02), 805 So.2d 1278.


author: | .MARION F. EDWARDS, Judge.

text:
    Sylvannus G. REESE & Lola Reese v. Victor A. DUBUCLET, III, Borrello & Dubuclet A Professional Law Corporation & Liberty Mutual Insurance Company.
    No. 03-CA-1476.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      John M. Robin, Covington, LA, for Plaintiff/Appellant.
    Judy Y. Barrasso, Meredith A. Cunningham, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   | .MARION F. EDWARDS, Judge.

Appellants Sylvannus G. Reese and Lola Reese appeal a summary judgment granted in favor of appellee Liberty Mutual Insurance Company. For the following reasons, we affirm.

The present matter arises out of the litigation Paula Francis v. Sylvanus Reese and Liberty Mutual Insurance Co., filed in the Civil District Court for the Parish of Orleans. In that ease, Paula and John Francis sued Reese and his insurer, Liberty Mutual, after an auto accident which occurred on September 24, 1999. Reese’s policy with Liberty Mutual carried limits of $250,000.00. Victor Dubuclet, of the law firm Borrello & Dubuclet, was retained to represent Liberty Mutual and Reese.

During the litigation, Reese obtained separate counsel and filed a cross-claim against Liberty Mutual, alleging that the Francis plaintiffs intended to seek a judgment against him beyond the policy limits. The cross-claim also alleged that Francis made a written offer to settle all claims for the policy limits, and that|sLiberty Mutual did not respond to the offer. Reese made a claim under La. R.S. 22:1220, as well as for negligence under La. Civil Code art. 2315, “due to the breach of Liberty Mutual Insurance Company’s duty to adjust the claims herein fairly and promptly and to make reasonable effort to settle with Paul K. Francis wife of/and John Francis, Jr.” Reese prayed for indemnification of any judgment in the Francis action in excess of his policy limits, as well as all damages provided for in R.S. 22:1220, mental anguish, and for all general and equitable relief.

Liberty Mutual filed an exception of prematurity, arguing that damages on the cross-claim would not accrue until and unless Reese sustained damages in the form of an excess judgment. The exception was sustained by the trial court, and the cross-claim was dismissed without prejudice.

Both. Mr. and Mrs. Reese filed the instant suit in Jefferson Parish shortly after the dismissal of the cross-claim, and before the trial of the original Francis suit. The claims therein, as in the cross-claim, also dealt with the exposure of Reese to a possible excess judgment. In this suit against Dubuclet, Borrello & Huber, and Liberty Mutual, the Reeses averred that they were not advised that they were exposed to a “very substantial” excess judgment, and that Liberty Mutual had paid its policy limits to Francis without obtaining a release on their behalf. Damages were sought for all losses in payment of excess judgment; emotional distress, anxiety and pain caused by the alleged malpractice; “consequential” damages; damages under La. R.S. 22:658 and La. R.S. 22:1220; and general and equitable relief. Liberty Mutual was sued'as the professional liability insurer of Dubuclet and his firm, as well as in its capacity as his employer.

In response to exceptions filed by Liberty Mutual, a consent judgment dismissed the claims against it as the professional liability insurer of Dubuclet and Borrello & Dubuclet. Exceptions of Res Judica-ta/Issue Preclusion and Prematurity also filed by Liberty Mutual were stayed until the conclusion of the Francis trial.

|4In the Francis litigation in Orleans Parish, Liberty Mutual was dismissed after tendering the policy limits plus interest. The Francis case was tried to a jury in July 2002, following which the jury awarded the plaintiffs $60,451.00. The judgment resulting from that trial stated that because Liberty Mutual had tendered its policy limits, and the amount of the verdict was less than that payment, the Francis’ suit against the Reeses was dismissed.

After the Francis judgment became final, Liberty Mutual, Dubuclet, and Borrel-lo & Dubuclet filed a Motion for Summary Judgment in the 24th Judicial District Court, alleging that the Reeses could not establish the elements necessary to prove their claims, since there was no excess judgment. In April 2003, the Reeses moved to dismiss their claims without prejudice, reserving their rights against Liberty Mutual “in all other actions pending or which may be brought,” The court granted the voluntary dismissal on April 24th. On April 25th, Liberty Mutual filed a motion to set the matter for hearing, opposing a dismissal without prejudice. Subsequently, Dubuclet, his law firm, and Liberty Mutual filed a Motion for New Trial with respect to the dismissal without prejudice. In that motion, it was alleged that another suit, based on the same transaction and same damages, had been filed by the Rees-es against Liberty Mutual in the 22nd Judicial District Court in February 2003, and that the Reeses were forum shopping.

The court granted the Motion for New Trial, and the Motion for Summary Judgment filed earlier by Liberty Mutual, Du-buclet, and Borrello & Dubuclet, was set for hearing. On the record, the Reeses did not oppose summary judgment as against Dubuclet and the law firm, or against Liberty Mutual as Dubuclet’s employer. Further, it was again acknowledged that Liberty was not the liability insurer of Dubuclet. After the hearing, the court granted the motion and dismissed all claims with prejudice. From this judgment the Reeses have appealed.

|RThe narrow issue before this court is whether summary judgment is appropriate in the present case on the record before us. Appellate courts are to review summary judgments de novo, under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.

The appellate record' reveals that the Reeses agreed to dismiss all parties, in all capacities in which they were sued, in the matter before the 24th Judicial District Court. A reading of the petition reveals that the only capacity in which Liberty Mutual was made a party was as liability insurer and employer of Dubuclet and his law firm. The transcript evidences that claims in these capacities were dismissed by the Reeses. Therefore, Liberty Mutual was entitled to summary judgment in its favor, there being no further causes of action alleged against it in the action before us.

The judgment on appeal is affirmed. All costs of this appeal are taxed to the Reeses.

AFFIRMED.

      . Schroeder v. Board of Supervisors, 591 So.2d 342 (La.1991).