author: STEVEN R. PLOTKIN, Judge. h ARMSTRONG, J.,

text:
    Dorothy M. GLAPION, individually and on Behalf of Her Minor Son, Matthew Glapion, and Diana Glapion, Djuana Glapion and Melvin Glapion, Jr. v. Dr. Gary BERGEAUX and XYZ Insurance Company.
    No. 2001-CA-1865.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Joseph W. Thomas, Law Offices of Joseph W. Thomas, New Orleans, LA, for Plaintiff/Appellee.
    Bruce A. Cranner, Gary L. Hanes, Fri-lot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   STEVEN R. PLOTKIN, Judge.

The pivotal issue in this appeal of a judgment in a medical malpractice action is an evidentiary issue concerning the admissibility of evidence concerning the defendant physician’s mental health history and a report issued by the Louisiana State Board of Medical Examiners (“Board”). Statutory intervenor, Louisiana Patients’ Compensation Fund (“LPCF”), appeals a trial court judgment on a jury verdict awarding plaintiffs, Dorothy M. Glapion, individually and on behalf of her minor son, Matthew Glapion, and her major children, Diana Glapion, Djunna Glapion, and Melvin Glapion, Jr. (hereinafter referred to collectively as “the Glapions”), wrongful death and survivor damages arising out of the death of Melvin Glapion, Sr., resulting from the alleged medical malpractice of defendant, Dr. Gary Bergeaux. For the reasons explained below, we reverse the trial court judgment and remand the case for retrial.

FACTS

Dr. Bergeaux, who practiced internal medicine prior to his voluntary retirement in 1995, treated Mr. Glapion for hypertension and other medical issues from 1983 until his death on December 23, 1992. That morning, Mr. Glapion ^telephoned Dr. Bergeaux with certain complaints, as a result of which Dr. Bergeaux prescribed antibiotics, which Mr. Glapion started to take. Later in the day, Mr. Glapion collapsed at home and was rushed to Methodist Hospital, where he was pronounced dead shortly after his arrival. The cause of death was sudden total cardiac arrest.

The Glapions filed the instant medical malpractice suit against Dr. Bergeaux, claiming that Dr. Bergeaux negligently misdiagnosed Mr. Glapion’s symptoms during the telephone call. Moreover, they claim that they relied on Dr. Bergeaux’s advice when they decided not to take Mr. Glapion to the emergency room that morning. As a result of Dr. Bergeaux’s alleged malpractice, the Glapions claim damages for destruction or decrease of “a significant chance that Mr. Glapion’s death could have been avoided.”

Prior to the original trial date, April 25, 2000, the plaintiffs settled with Dr. Ber-geaux for $50,000, reserving their right to seek excess damages from the LPCF. Thereafter, the LPCF intervened in the action and defended the suit at trial. Because the Glapions settled with Dr. Ber-geaux for less than $100,000, the LPCF was allowed to contest Dr. Bergeaux’s liability for Mr. Glapion’s death.

At an October 24, 2000, pre-trial conference, the case was reset for trial on April 23, 2001, with a cut-off date to complete discovery of March 9, 2001, 45 days prior to trial. On March 29, 2001, the Glapions submitted a Pre-Trial outline, listing three contested issues of fact and law: (1) the contents of the telephone conversation between Mr. Glapion and Dr. Bergeaux, (2) whether Dr. Bergeaux breached the applicable standard of care, and (3) the measure of damages due the Glapions. The Glapions also presented an exhibit list on that date. Significantly, |3Pr. Bergeaux’s mental health history was not raised by the Glapions’ pre-trial submissions.

Trial was then continued to July 9, 2001. Another pre-trial conference was held on April 5, 2001, at which time the trial judge re-opened discovery to allow the LPCF to depose Dr. Nicholas Pappas, the Glapions’ expert witness, and to allow the Glapions’ new counsel to re-depose Dr. Bergeaux.

At the redeposition of Dr. Bergeaux, held on June 7, 2001, the Glapions’ new counsel attempted for the first time to raise a number of issues, including the status of Dr. Bergeaux’s medical license at the time of his retirement in 1995 and other malpractice claims made against him. On advice of his counsel, Dr. Ber-geaux refused to answer those questions. Thus, the Glapions filed a Motion to Compel Discovery, as well as a Notice of Records Deposition and request for subpoena duces tecum directed to Dr. Richard Ri-choux, seeking records relative to his psychiatric treatment of Dr. Bergeaux. The trial court granted the Motion to Compel Discovery, ordering Dr. Bergeaux to submit to another deposition and prohibiting Dr. Bergeaux’s counsel from making objections during the deposition. During Dr. Bergeaux’s third deposition, the Glapions’ counsel referred to an opinion of the Board relative to Dr. Bergeaux’s 1995 surrender of his medical license.

The LPCF filed a Motion in Limine, seeking an order prohibiting the Glapions from discovering or using evidence relative to Dr. Bergeaux’s mental health and the Board’s report, at least without laying a proper foundation. That motion was heard and denied the morning of trial. Prior to trial, Dr. Bergeaux had announced his intention to present the testimony of Dr. Richoux if the court Rpermitted the Glapions to use his mental health history or the Board’s report. However, the trial court excluded Dr. Richoux from testifying.

Following the trial, at which the Gla-pions placed particular emphasis on the evidence concerning Dr. Bergeaux’s mental health history and the Board’s report, the jury returned a verdict in favor of the Glapions, awarding $40,000 in survivor benefits, $675,000 in wrongful death damages to Mrs. Glapion, and $100,000 in wrongful death benefits to each of the Glapion children. These amounts were discounted pursuant to the statutory limitations set forth in the Medical Malpractice Act, LSA-R.S. 40:1299.41 et seq., and a credit was given for the amount of Dr. Bergeaux’s settlement. Judgment was then entered pursuant to the jury verdict.

The LPCF appeals, assigning four errors: (1) the trial court improperly admitted evidence relative to Dr. Bergeaux’s mental health and the status of his medical license at the time of his retirement in the absence of a proper foundation; (2) the trial court evidenced “a systematic and selective disregard of the court’s own pretrial procedure,” permitting the Glapions to expand issues and exhibit lists just prior to trial, but prohibiting the LPCF from responding to the new evidence; (3) the appellate record is woefully inadequate, necessitating the remand of this matter to the trial court for supplementation of the record; and (4) the jury improperly awarded survivor damages.

ADMISSIBILITY OF EVIDENCE

In its first assignment of error, the LPCF argues that the trial court improperly admitted evidence relative to Dr. Ber-geaux’s mental health history and the Board’s report. Determination of the admissibility of evidence is generally governed by the following three-part test: (1) Is the evidence relevant to the issues | .¡before the court, as required by La. C.E. art. 402? (2) Does the evidence pass the “balancing test,” established by La. C.E. art. 403? and (3) Do any of the exceptions established by La. C.E. art. 404(B) apply. In re Cerniglia v. French, 2000-2768, 2000-2769, p. 5 (La.App. 4 Cir. 4/3/02), 816 So.2d 319, 323.

Relevance of evidence

The first question that this court must answer in order to determine whether the trial court properly admitted the contested evidence in the instant case is whether the testimony was relevant. Id. La. C.E. art. 402 states as follows:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.

La. C.E. art. 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The LPCF argues that the contested evidence was inadmissible because the Glapions “utterly failed to come forward with a reasonable foundation of fact and expert opinion linking Dr. Bergeaux’s condition and his treatment to his conduct in this case.” Because the Glapions failed to establish the necessary foundation, the LPCF claims the evidence had “no rational connection to the issues the jury needed to decide.” In fact, the LPCF points out, the Board’s report was not prepared until several years after Mr. Glapion’s death.

The Glapions counter by arguing that the evidence of Dr. Bergeaux’s mental health history and the Board’s report was relevant to the question of credibility. The Glapions point out that credibility was an important issue in this case because |fithe content of the telephone conversation between Mr. Glapion and Dr. Bergeaux is the subject of an important factual dispute. Specifically, the Glapions claim that Mr. Glapion told Dr. Bergeaux that he was experiencing a number of physical symptoms, including nausea, and that his family was preparing to take him to the emergency room until Dr. Bergeaux told him that he didn’t need to go. Dr. Bergeaux claims that Mr. Glapion did not tell him that he was nauseated, and that he told Mr. Gla-pion to go to the emergency room, but Mr. Glapion refused.

In support of their argument that the contested evidence was relevant to the issues in this case, the Glapions cite the Louisiana Supreme Court’s decision in State v. Luckett, 327 So.2d 365 (La.1975) (on rehearing). In that case, the Supreme Court held that evidence of the defendant’s marijuana use on the night of the alleged criminal action was relevant to the defendant’s credibility. Id. The court stated, in pertinent part, as follows:

Various ways are recognized as proper to attack the credibility of a defendant who has testified to facts that occurred at the time of the offense. Thus, defects of capacity, sensory or mental, which would lessen the ability to perceive the facts which the witness purports to have observed, are provable to attack the credibility of the witness, either upon cross-examination or producing other witnesses to prove the defect. Clearly, a defect in capacity may result from the use of drugs or alcohol. Whether a witness was intoxicated, by use of drugs or alcohol, on the occasion respecting which he is called upon to testify goes to his credibility and weight of his evidence and not to his competency. See State v. Sejours, 113 La. 676, 37 So. 599 (1904).
Therefore, it was permissible for the state to cross-examine defendant as to his use of marijuana at the time of the alleged offense. It represented a proper attempt to attack his credibility which was crucial to the state’s case. After receiving negative responses to the two or three questions asked by the prosecutor, the matter was pursued no further. Under the circumstances, we do not find that the questioning of defendant was inflammatory. Assignment of Error No. 3 is without merit.

Id. at 372-73.

[7The record evidence in this case reveals that Dr. Bergeaux has admitted that he has mental health problems, that he suffers from bipolar disorder, that he suffered from hallucinations at some points in time between 1990 and 1992, that his mental condition has rendered him incompetent to practice medicine at some points in time, and that he takes medication for those problems. As the Louisiana Supreme Court has found that information about mental conditions that might affect credibility is relevant to the issue of credibility, we find that the evidence regarding Dr. Bergeaux’s mental health history, including the Board’s report, was relevant, but only to the issue of Dr. Bergeaux’s credibility.

The Glapions further argue that the Board’s report is also relevant to the issue of whether Dr. Bergeaux’s decision to prescribe an antibiotic to Mr. Glapion during the telephone call was appropriate. In support of this argument, the Glapions point out that the Board’s report refers to charges concerning Dr. Bergeaux’s improper prescribing of controlled substances. However, our review of the Board’s report, especially its Findings of Fact, indicates that the Board’s concerns regarding Dr. Bergeaux’s prescribing of controlled substances related primarily to medications used to treat obesity, not his prescribing of antibiotics to a patient with whom he obviously had an on-going relationship, like Mr. Glapion. It is true, however, that the first charge against Dr. Ber-geaux documented in the Board’s report does generally reference improper prescribing of controlled substances, meaning that the Board’s report might have some relevance to issues in this case beyond credibility.

| ^Probative value vs. unfair prejudice

The second question that this court must answer in order to determine whether the trial court properly admitted the contested evidence in the instant case is whether the evidence is admissible under the balancing test established by La. C.E. art. 403, which requires the exclusion of even relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” In re Cerniglia, 2000-2768 at 7, 816 So.2d at 324. The LPCF argues that the evidence of Dr. Bergeaux’s mental health history and the Board’s report is more prejudicial than probative in the instant case. In support of this argument, the LPCF refers to the general populace’s lack of understanding of mental illness and its treatment that “tends to translate into a level of unjustified aversion and mistrust toward the mental-health patient.”

Our review of the record evidence in this case convinces us that the unfair prejudice that resulted from the evidence of Dr. Bergeaux’s mental health history and the Board’s report outweighed the probative value of that evidence, especially when the evidence is considered in context. A review of the transcript indicates that the Glapions’ attorney use of the contested evidence far exceeded its relevance to the issue of Dr. Bergeaux’s credibility. As noted above, the LPCF had filed a motion in limine seeking the exclusion of the evidence of Dr. Bergeaux’s mental health history and the Board’s report. The trial judge denied that motion, ruling that the contested evidence could be used.

However, in addition to using the contested evidence for impeachment and for other purposes related to Dr. Bergeaux’s credibility, the trial judge allowed the Gla-pions to use Dr. Bergeaux’s mental health history and the Board’s report to j 9completely discredit Dr. Bergeaux as its primary trial tactic. When Dr. Bergeaux took the stand, the very first question the Glapions’ attorney asked was “Before we get too far field [sic], did you take your medication this morning?” Then, apparently not satisfied with Dr, Bergeaux’s affirmative response, the Glapions’ attorney asked as the second and third questions, “You took your lithium?” and “You took your Zoloft?” Dr. Bergeaux answered “Yes” to both questions. As the questioning of Dr. Bergeaux progressed, many of the questions asked by the Glapions’ attorney were based on Dr. Bergeaux’s previous deposition. When the attorney perceived that Dr. Bergeaux’s answers failed to conform exactly to his former statements, he repeatedly asked Dr. Bergeaux questions relative to whether he was lying or had been lying at the time of the deposition. Further questioning then revealed that the minor differences in some of Dr. Bergeaux’s answers that were highlighted by the Glapions’ attorney were caused by a difference in semantics, or differences of opinion, not true previous inconsistent statements by Dr. Bergeaux. The attorney’s questions were designed to establish that Dr. Bergeaux was unreliable, at least in part, because of his mental health history and/or because of his need for medication to control a medical problem. The trial court also admitted the Board’s report without explanation or redaction, allowing the jury to infer that Dr. Bergeaux had violated criminal laws and medical standards at a time and place unconnected to the incident in question. Thus, the Glapions were allowed to highlight Dr. Bergeaux’s mental health history and the Board’s report for purposes unrelated to the events of December 23, 1992 or to any other issue in the case. The trial court consistently overruled the LPCF’s objections to the myriad of inappropriate questions asked by the Glapions’ attorney.

|inAlthough we have found above that the evidence of Dr. Bergeaux’s mental health history and the Board’s report was relevant to the issue of Dr. Bergeaux’s credibility as it was related to the content of the telephone conversation between Dr. Bergeaux and Mr. Glapion on December 23, 1992, the evidence was clearly prejudicial to the LPCF’s case. In fact, little if any of the use of the evidence by the Glapions was related to the only issue for which it was relevant — i.e., Dr. Bergeaux’s credibility. Thus, the contested evidence was misused in a way that created unfair prejudice that clearly outweighed probative value of the evidence to the issues in the case. Accordingly, we find that use of the evidence did not pass the “balancing test” established by La. C.E. art. 403. The trial court therefore improperly admitted the evidence of Dr. Bergeaux’s mental health history and the Board’s report.

La. C.E. art. 404(B) exceptions

The third question that this court must answer in order to determine whether the trial court properly admitted the contested evidence in the instant case is whether the contested evidence was admissible under the exceptions established by La. C.E. art. 404(B), which provides as follows:

Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Inin the instant case, the Glapions have not argued that the contested evidence was admissible for any purpose except to prove Dr. Bergeaux’s lack of credibility. Thus, the exceptions established by La. C.E. art. 404(B) do not impact the admissibility of the evidence in this case.

EXCLUSION OF DR. RICHOUX’S TESTIMONY

In its second assignment of error, the LPCF claims that the trial court’s improper decision to admit the prejudicial evidence concerning Dr. Bergeaux’s mental health history and the Board’s report was made even more onerous by its exclusion of Dr. Richoux’s testimony. That testimony was “relevant and competent ... to demonstrate that Dr. Bergeaux’s mental condition had absolutely no effect on the facts of this case,” the LPCF claims. According to Dr. Richoux’s affidavit, Dr. Ber-geaux’s mental condition “had no effect on his medical judgment” on the date of Mr. Glapion’s death in December of 1992. Dr. Richoux also stated that Dr. Bergeaux’s condition did not affect his ability to understand and properly perceive reality, or his ability to tell the truth. Dr. Richoux clearly indicated in his affidavit that Dr. Bergeaux’s condition was fully stabilized in December of 1992 and did not have an impact on his medical judgment or his personal competency at that time.

However, the gravamen of the LPCF’s argument on this issue is the trial court’s alleged “one-sided disregard of the pretrial order prepared by the parties and accepted by the court to favor the plaintiffs,” which, the LPCF claims, “served to create manifest prejudice toward Dr. Bergeaux” and the LPCF. In fact, the LPCF claims that the trial court’s conduct was so prejudicial as to deprive it of affair trial. The LPCF emphasizes the fact that the discovery deadline for the original trial had already passed before the Glapions ever raised the issue of Dr. Bergeaux’s mental health or the status of his medical license at the time of his retirement.

In response, the Glapions note that the trial court has vast discretion concerning the admission and exclusion of evidence. Further, they argue that the trial court properly modified the pre-trial order to prevent manifest injustice in this case. Concerning the exclusion of Dr. Richoux’s testimony, the Glapions argue simply that Dr. Bergeaux admitted the salient facts regarding his mental health condition and that Dr. Richoux’s testimony could not have affected those admissions. Specifically, the Glapions claim that Dr. Bergeaux admitted that he “was laboring with mental problems at the time of Mr. Glapion’s death and experienced hallucinations about that time.” The LPCF fails to explain how Dr. Richoux’s testimony could have substantially affected the evidence, the Glapions claim.

The same three-part test applied above to determine the admissibility of the evidence concerning Dr. Bergeaux’s mental health history and the Board’s report applies to the question of whether the trial court properly excluded the testimony of Dr. Richoux in this case. Thus, this court must ask the following questions: (1) Is the evidence relevant to the issues before the court, as required by La. C.E. art. 402? (2) Does the evidence pass the “balancing test,” established by La. C.E. art. 403? and (3) Do any of the exceptions established by La. C.E. art. 404(B) apply. In re Cerniglia, 2000-2768 at 5, 816 So.2d at 323.

It is axiomatic that Dr. Richoux’s testimony concerning Dr. Bergeaux’s mental health condition at the time of Mr. Gla-pion’s death is at least as relevant hato the question of Dr. Bergeaux’s credibility as was his general mental health history and the Board’s report introduced by the Glapions. Moreover, that information was not prejudicial to the Glapions’ case in the manner that the evidence of Dr. Ber-geaux’s mental health history and the Board’s report was prejudicial to the LPCF. Thus, we find that the trial court improperly excluded Dr. Richoux’s rebuttal testimony.

The Glapions argue that the trial court properly excluded Dr. Richoux’s testimony because Dr. Bergeaux failed to list Dr. Richoux as a witness in violation of the pre-trial order. However, the Glapions had not even raised the issue of Dr. Ber-geaux’s mental health history or the Board’s report when Dr. Bergeaux filed his witness list. Moreover, the trial court allowed the Glapions ,to modify the pretrial order to raise the issue of Dr. Ber-geaux’s mental health history and the Board’s report. Thus, the trial court allowed one party to modify the pre-trial order, while denying the other party the same right. Furthermore, despite the fact that the admission of evidence is largely within the discretion of the trial judge, this court has recognized that a party has the right to present rebuttal evidence. Board of Commissioners of New Orleans Exhibition Hall Authority v. Missouri Pacific Railroad Co., 625 So.2d 1070, 1081 (La.App. 4 Cir.1993). Thus, we find that the trial court improperly excluded Dr. Ri-choux’s rebuttal testimony.

STATUS OF THE RECORD

In its third assignment of error, the LPCF claims that the appellate record in this case is “prejudicially inadequate in several clear and compelling particulars.” First, the LPCF claims that the Glapions failed to submit Dr. Bergeaux’s pre-trial depositions into evidence, despite the fact they relied on and quoted these | ^depositions in their examination of Dr. Bergeaux. Because the depositions are not in the record, the LPCF claims that it “is unable to even craft an argument relative to the improper nature of plaintiffs’ attempts to impeach Dr. Bergeaux with the transcripts.” Second, the LPCF claims that Dr. Richoux’s proffered testimony was not recorded by the court reporter. Obviously, the absence of important portions of the trial court record makes it impossible for this court to fully review the judgment in favor of the Gla-pions.

REMAND

In In re Cerniglia, 2000-2768, 816 So.2d 319 (La.App. 4 Cir. 4/3/02), which also involved improperly admitted evidence, this court discussed the circumstances under which remand of a case to the trial court is appropriate:

This court has recently stated as follows in Estate of Cristadoro ex rel. Jones v. Gold-Kist, Inc., 2001-0026 (La.App. 4 Cir. 1/23/02), [819] So.2d [1034], 2002 WL 124394:
Generally, where a jury verdict is tainted due to a material error at trial, making it untrustworthy, then the verdict must be overturned; however, when an otherwise complete trial record exists, the general rule is that an appellate court should, if it can, render judgment on the record. Jones v. Black, 95-2530 (La.6/28/96), 676 So.2d 1067, citing Gonzales v. Xerox, 320 So.2d 163, 165 (La.1975). See also, Lawson v. Straus, 98-2096 p. 6 (La.App. 4 Cir. 12/8/99), 750 So.2d 234, 239. Only when a view of the witnesses is essential to a fair resolution of conflicting evidence should the case be remanded for a new trial. Jones v. Black, at p. 1, 676 So.2d at 1067, citing Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La.1980). See also, Wilson v. PNS Stores, Inc., 98-1004, p. 14 (La.App. 4 Cir. 12/16/98), 725 So.2d 66, 73-74, where the case was remanded for a new trial because the credibility of the witnesses was found to be of critical importance. “With the conflicting testimony ... [on a pivotal issue] this court finds it impossible to measure the effects of the trial court’s persistent focus on [defendant’s] apparent deviation from written policy excerpts.” Because the employment Indiscrimination claim at issue in the Wilson case turned upon proof by indirect evidence and by the inferences derived from the conflicting testimony of the parties, a remand for a new trial is required in the interest of justice.

Id. at 14, [819] So.2d at [1050-51] (emphasis in original). Likewise, in Wilson, cited by Cristadoro, this court stated as follows:

Under most circumstances, when an appellate court reverses a jury verdict, and the record is complete, an independent review is conducted and judgment is rendered on the merits. Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975). It has been recognized, however, that in some cases, “the weight of the evidence is so nearly equal that a firsthand view of witnesses is essential to a fair resolution of the issues. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.” Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La.1980). 98-1004 at 14; 725 So.2d at 73.
Following our close review of the record in the instant case, we find that this is one of those rare cases where “the weight of the evidence is so nearly equal that a firsthand view of witnesses is essential to a fair resolution of the issues.” Id.

2000-2768 at 10, 816 So.2d at 326.

In the instant case, not only is “the weight of the [record] evidence [excluding the improperly admitted evidence] so nearly equal that a firsthand view of the witnesses is essential to a fair resolution of the issues,” but the record is itself incomplete. Essentially, the case boils down to a contest between the Glapions and Dr. Bergeaux concerning the contents of the telephone conversation, as well as the appropriateness of Dr. Bergeaux’s actions in response to the information Mr. Glapion gave him. Dr. Bergeaux is the only living participant in that telephone conversation, so his credibility on the issue of the telephone call is pivotal to a decision in this case. However, the fact that Dr. Ber-geaux’s credibility is an issue does not give the Glapions license to present all manner of prejudicial evidence against Dr. Ber-geaux. ■ Dr. Bergeaux’s mental health problem is not per [1fise evidence that Dr. Bergeaux acted inappropriately in response to Mr. Glapion’s December 23,1992 telephone call. Neither is his mental health condition per se evidence that Dr. Bergeaux lacks credibility or is unworthy of belief.

Further, the trial court’s decision to allow the jury to view the Board’s report in this case without redaction, explanation, or rebuttal resulted in such obvious prejudice to Dr. Bergeaux and the LPCF that a jury cannot be presumed to have made its decision on appropriate grounds. The Board’s report specifically finds that Dr. Bergeaux violated Board rules and that he suffers from bipolar disorder that has made him incompetent to practice medicine at some periods of time when he failed to consistently take his medication. However, the Board’s report does not specify the periods of time when Dr. Bergeaux failed to take his medication properly and certainly does not establish that Dr. Bergeaux was incompetent to practice medicine on December 23, 1992, when the telephone call occurred. Allowing the jury to review the Board’s report without redaction or explanation, and especially without allowing rebuttal testimony, gave rise to the inference that Dr. Bergeaux had violated criminal laws and medical standards at a time and place unconnected to the incident at question in the instant case. Accordingly, we find that the record in this case is so tainted by trial court errors that reversal and remand for new trial is demanded.

CONCLUSION

For the reasons stated above, the trial court judgment in favor of the Glapions is reversed and the case is remanded for retrial.

REVERSED AND REMANDED.

ARMSTRONG, J., dissents.

h ARMSTRONG, J.,

dissents.

I respectfully dissent. The plaintiffs’ evidence of Dr. Bergeaux’s mental impairment was properly admitted. I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: STEVEN R. PLOTKIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jake DANGERFIELD.
    No. 2002-KA-1529.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Harry F. Connick, District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER).
   STEVEN R. PLOTKIN, Judge.

The first issue in this appeal is whether the trial court committed reversible error when it permitted the State’s witness to comment on the defendant’s behavior prior to his participation in a line up. The other issue is whether the trial court erred in denying the defendant’s motion to suppress the evidence. For the reasons below, we affirm the judgment of the trial court.

PROCEDURAL HISTORY

Defendant Jake Dangerfield was charged by bill of information with one count of first-degree robbery in violation of La. R.S. 14:64.1. Defendant pled not guilty. He was tried by a twelve-person jury but they were unable to reach a verdict. The defendant was re-tried and a twelve-person jury found the defendant guilty as charged. The defendant was sentenced to forty years without the benefit of probation, parole, or suspension of sentence. The State filed a multiple bill alleging the defendant to be a second felony offender. After a multiple bill hearing, the defendant was adjudged to be a second felony offender. The trial court vacated its previous sentence of forty years and re-sentenced the defendant to fifty years without the benefit of parole, probation or suspension of sentence.

| .STATEMENT OF FACTS

Perry Dolce testified that on February 14, 2001, he had pulled into the single car garage attached to his place of business. At approximately 3:45 p.m. the defendant entered the garage with his left hand in his pocket and demanded that Mr. Dolce exit his 2000 Mercury Sable. Mr. Dolce further testified that he complied with the defendant’s demand, and as he was about to walk out of the garage the defendant ordered him to stand in front of the vehicle. As the defendant exited the garage in the vehicle Mr. Dolce was able to get a good look at the defendant. Mr. Dolce testified that he left paperwork on the front passenger seat, his cell phone in a compartment, and his wallet with his identification and credit cards in his suit jacket, which was inside his vehicle. After the defendant left with his vehicle Mr. Dolce went to his office and called 911 to report the crime. When the police arrived on the scene Mr. Dolce gave them a description of the defendant as a Black male, in his early to mid twenties, five feet eight inches tall, wearing a white t-shirt, baggy jeans, and gold wire-rim glasses. Mr. Dolce testified he notified his credit card companies and his cell phone service provider of the theft. When Mr. Dolce received his cell phone statement there were numbers on the statement he did not recognize. Mr. Dolce faxed the statement to the police. Mr. Dolce testified that about one week after the incident Detective Walsh of the New Orleans Police Department showed him a photographic line-up. Mr. Dolce narrowed his identification to two individuals but he was reluctant to choose one individual because they were not wearing glasses. Approximately three weeks after his vehicle was stolen Mr. Dolce viewed a physical line-up and he identified the defendant as the man who stole his car.

| Officer Abreace Daniel, of the New Orleans Police Department, testified that he responded to a traffic accident at the intersection of Tulane Avenue and S. Ren-don Street. When he arrived on the scene Officer Daniel found a 1993 Jeep Cherokee and a 2000 Mercury Sable were involved in a collision. The driver of the Jeep was off-duty officer Edward Derringer and the Mercury Sable was driven by the defendant. Officer Daniel asked the defendant for a driver’s license and insurance, but he was unable to produce them. Officer Daniel testified the defendant stated the vehicle he was driving belonged to his uncle. Officer Daniel further testified that he found a lease agreement and a vehicle registration in Perry Dolce’s name in the Mercury Sable. Officer Daniel arrested the defendant for driving without a driver’s license and insurance.

Detective Michael Walsh, of the New Orleans Police Department Robbery Investigation Unit, testified that on February 14, 2001, he was contacted by Officer Hillary Smith about a robbery that took place in the 2100 block of Decatur Street. When Detective Walsh arrived on the scene he interviewed Mr. Dolce and began á follow-up investigation. As part of the follow-up investigation Detective Walsh met with the defendant in an interview room of Central Lock-up. Detective Walsh read the defendant his rights and asked the defendant if he would like to give a statement. The defendant stated that on the day Mr. Dolce’s vehicle was stolen between 3:35 p.m. and 4:00 p.m. he was walking down Royal Street near Elysian Fields. A person driving a 2000 Mercury Sable pulled along side of him and asked the defendant if he knew of a place to purchase drugs. The defendant then got into the vehicle, directed the driver to the intersection of St. Claude and Desire Streets, and pointed out the place where the driver could purchase the drugs he wanted. When the driver returned the defendant back Rto the intersection of Royal Street near Elysian Fields the defendant asked the driver what was he going to get out of the deal, and the driver then offered to let the defendant rent the vehicle for one hundred dollars for a week.

While the defendant was incarcerated for the traffic violations Detective Walsh arranged for Mr. Dolce to view a physical line-up. Detective Walsh testified that he chose five other men who fit the same physical description as the defendant to participate in the line-up. Once all of the men were in line, all wearing wire frame glasses, Mr. Dolce chose the defendant as the person who stole his vehicle. Detective Walsh charged the defendant with the crime.

ERRORS PATENT

A review of the record revealed no errors patent.

ASSIGNMENT OF ERROR NUMBER 1

The defendant complains it was reversible error to permit the State’s witness to comment on the defendant’s behavior prior to his participation in the physical line-up, and the evidence penalized the defendant for the exercise of his Sixth Amendment right to counsel.

La.C.Cr.P. art.841 provides in part:

An irregularity of error cannot be availed of after verdict unless it was objected to at the time of occurrence.

The defendant alleges the State elicited irrelevant and inadmissible evidence from Detective Walsh at trial that was not mentioned at the motion hearing. At trial Detective Walsh testified that prior to the physical line-up the defendant, at the suggestion of his attorney, switched glasses with the guy standing next to him in the line-up. Defense counsel was present during Detective Walsh’s testimony at trial and failed to object to the nature of the | ^testimony at the time it was given. In State v. Styles, 96-897 (La.App. 5 Cir. 3/25/97), 692 So.2d 1222, 1227-1228, writ denied, 97-1069 (La.10/13/97), 703 So.2d 609, the Louisiana Fifth Circuit Court of Appeal held that when a defendant fails to lodge a contemporaneous objection to a witness’ testimony or request an admonition or a mistrial, the defendant waives his right to assert this error on appeal. The court in Styles found that:

LSA-C.Cr.P. art. 841(A) provides, in part, that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” The purpose behind the contemporaneous objection rule under LSA-C.Cr.P. art. 841(A) is to put the trial judge on notice of an alleged irregularity so that he may cure the problem and to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, writ denied, 94-0475 (La.4/4/94), 637 So.2d 450, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055. This rule relates to objec-tional evidence of other crimes. State v. Guidroz, 498 So.2d 108 (La.App. 5 Cir.1986).

Id. In the instant case, as in Styles, since the defendant failed to object at trial to the testimony of Detective Walsh, he has now waived his right to assert this error on appeal. Thus, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

The defendant next claims that the trial court imposed an excessive sentence.

Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739 (La.1992).

|fiGenerally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983). If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 535, citing State v. Howard, 414 So.2d 1210 (La.1982).

La. R.S. 14:64.1 provides:

A. First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.
B. Whoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence.

La. R.S. 15:529.1(A)(2)(a) provides:

(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;

In State v. Finley, 95-553 (La.App. 3 Cir. 12/6/95), 664 So.2d 775, the Third Circuit found a fifty year sentence for a defendant convicted of first degree robbery and adjudged a multiple offender was not excessive. In State v. Jackson, 31,849 (La.App. 2 Cir. 3/31/99), 734 So.2d 54 the Second Circuit found a fifty year sentence for a defendant convicted of first degree robbery and adjudged a second felony offender was not excessive.

In the instant case, the trial court took into consideration that the defendant had prior armed robbery convictions as a juvenile and as an adult. The defendant also had other violent offenses on his rap sheet. The trial court found that because the defendant had a prior armed robbery conviction as an adult in 1994 the defendant should be sentenced to fifty years. Additionally, the defendant has failed to prove the trial court judge abused the liberal discretion allowed in sentencing. Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we find that the trial court did not commit reversible error when it permitted the witness to comment on the defendant’s behavior prior to his participation in the line up. The defendant did not prove that the sentence imposed was excessive or an abuse of the trial court’s discretion.

Therefore, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: | MAMES F. McKAY III, Judge.

text:
    Richard LAY v. CONTINENTAL REHABILITATION RESOURCES, Holi Temporary Services, American Waste of St. Tammany.
    No. 2002-CA-1268.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.
    Richard B. Lay, Slidell, LA, In Proper Person, Plaintiff/Appellant.
    John E. Galloway, Bruce A. Bannon, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III).
   | MAMES F. McKAY III, Judge.

Plaintiff, Richard Lay, appeals the trial court’s judgment granting a motion for summary judgment filed by defendant Michael Springman. The plaintiff has filed various lawsuits in federal and state courts concerning a worker’s compensation settlement between himself and his employer, Holi Temporary Services, for injuries plaintiff allegedly sustained on November 21, 1992 while working as a laborer/garbage collector in St. Tammany Parish. This Court recited plaintiffs litigation history in Lay v. Continental Rehabilitation Resources, et al., unpub., 2000-2195 (La.App. 4 Cir. 2/20/2002), 812 So.2d 160:

At the time of the injury he was employed by Holi Temporary Services, Inc. (Holi) and was working on equipment belonging to Waste Management of Louisiana (Waste Management). After his injury, he was treated at Slidell Memorial Hospital in St. Tammany Parish. He was subsequently treated for back pain by Dr. Mark Hontas, who saw him at Tulane Medical Center’s Slidell Orthopedic Clinic on two occasions and by Dr. James Butler of Tulane Medical Center, who saw him on one occasion in the emergency room on November 9, 1993.
As a result of his job-related injury, the plaintiff filed a worker’s compensation claim against his employer, Holi. He entered into a settlement agreement on May 26, 1993 settling and compromising all claims arising out of his November 21, 1992 injury. The plaintiff was later convicted of armed robbery and was sent back to prison. Since his incarceration, the plaintiff has filed a plethora of pleadings in numerous forums seeking to overturn the settlement and/or to raise additional claims against the persons and/or entities he came into contact with as a result of his on the job injury. He has filed numerous pleadings with the Office of Workers’ Compensation, the City Court of Slidell, the 22nd Judicial District Court for the Parish of St. 1 ¡/Tammany, the First Circuit Court of Appeal and more recently the Civil District Court for the Parish of Orleans. He has sued his employer, Holi; the owner of the equipment he was working on at the time of the injury, Waste Management; and Continental Rehabilitation Resources, the rehabilitation carrier for Holi. He has sued Dr. Hontas, Dr. Butler and Tulane University Medical Center. He has even sued attorneys from Adams and Reese, the law firm that represented the doctors who treated him. To date, he has not prevailed in any of these forums.

The suit filed in the City Court of Slidell was dismissed for lack of jurisdiction. The suit filed in 22nd Judicial District Court in 1997 was dismissed in 1998, and sanctions in the amount of ten thousand dollars were imposed on the plaintiff. The relator sought to have his settlement reached under the Worker’s Compensation Act declared null because of fraud.

In 1999, the relator commenced his attempts to overturn the worker’s compensation settlement in the Civil District Court for the Parish of Orleans by filing Case No. 99-10702, which was allotted to Division A. The defendants, Continental Rehabilitation Services, Holi Temporary Services, and Waste Management (herein collectively referred to as the Continental defendants), filed exceptions of improper venue, res judicata, prescription and no cause of action. The Continental defendants also filed a motion for sanctions. On October 1, 1999, the district court judge hearing the case maintained the defendants’ exceptions of improper venue, and a judgment was eventually signed which dismissed the plaintiffs’ action against those defendants.

Following the dismissal of his action against the Continental defendants, the plaintiff requested leave to amend his action to remove the exception of improper venue. He sought to do this by adding new defendants to the litigation. More specifically, he added Dr. Hontas, Dr. Butler, Tulane University Medical Center (Tulane) and Johnathan (sic) Kantar of CNA Financial Corporation. His allegation against Dr. Hontas, Dr. Butler and Tulane all involved treatment received as a result of the November 1992 on the job injury. He alleged that CNA had a contract with Holi and Waste Management through Continental and that Mr. Kantor had | ¡¡supervision or control over the St. Tammany Parish office. The plaintiff claimed that he contacted Mr. Kantor frequently with complaints while he was domiciled in Slidell, and Mr. Kantor and/or CNA were solidarity liable with Continental. He further alleged that CNA’s principal office wás in Orleans Parish. He also named the Continental defendants’ unknown insurance carrier as a defendant. On October 4, 1999, the trial court denied the plaintiffs request to amend his petition, noting that he had to file a separate suit.

On October 29, 1999, the relator filed another action in the Civil District Court for the Parish of Orleans. That action was assigned case No. 99-16547 and was allotted to Division H of the Civil District Court of the Parish of Orleans. That action has been the subject of several writ applications in this court. Named as de-ffendants in CDC no. 99-16547 were Continental Rehabilitation Services, Attorney Kevin A. Marks, Attorney Thomas J. Smith, Galloway, Johnson, Tompkins & Burr Law Corporation, Dr. Mark Hontas and his employer, Tulane University Medical Center and their insurers. The allegations in that case were essentially the same as the allegations in the complaint for case no. 99-10702. The defendants in case no. 99-16547 filed numerous exceptions to the relator’s new lawsuit, including exceptions of improper venue, insufficiency of service, res judicata, no cause of action and prescription. By judgment dated February 7, 2000, the trial court granted the defendants’ exceptions of res judicata, no cause of action, and prescription, and dismissed case no. 99-16547. On February 16, 2000 the relator filed a motion for new trial and a motion to recuse the trial judge. The trial court denied the recusal motion and on March 9, 2000, the trial court also denied the relator’s motion for delay, motion to alter the judgment and amended motion for new trial.

In May 22, 2000, in writ 2000-C-1165, relator came before this court representing that he filed a motion seeking a devolu-tive appeal of the February 7, |42000 judgment issued by the trial court in case no. 99-16547; however, he allegedly received no response. The motion could not be located in the record when it was reviewed; however, the relator attached to his writ application a copy of the motion he allegedly filed with the trial court. If in fact his motion had been timely filed, he would have been entitled to an appeal. Therefore, on July 18, 2000, this court transferred the relator’s motion requesting a devolutive appeal to the district court, with a request that the trial court provide a copy of its judgment on the motion to this court to show compliance with this court’s order.

On November 16, 2000, in writ 2000-C-2509, the relator came before this court complaining that the district court had failed to comply with the order issued in writ 2000-C-1165. When contacted, the trial judge informed this court that neither the section nor the clerk of court had received the plaintiffs original application for writ of mandamus and prohibition. Further, the court stated that the pleadings that this court had forwarded were never filed with the trial court because the pleadings did not appear in the record nor were there any computer records of such filing. Upon receipt of the trial court’s letter, this court, on February 15, 2001, denied the relator’s subsequent writ application, noting that his motion for appeal of the February 7, 2000 judgment was untimely. The relator’s motion for reconsideration of this court’s decision was denied. The relator then filed a writ application with the Louisiana Supreme Court seeking review of this court’s ruling in writ no. 2000-C-2509. The Supreme Court refused to consider the relator’s writ application, noting that it was not 'timely filed. Lay v. Continental Rehabilitation Services, et al., 2001-0841 (La.5/11/01), 791 So.2d 1288. The relator’s request for reconsideration was also denied. Lay v. Continental Rehabilitation Services, et al., 2001-0841 (La.5/11/01), 791 So.2d 1288, reconsideration denied 2001-0841 (La.6/22/01), 793 So.2d 1263.

The relator then commenced efforts to challenge the February 7, 2000 judgment by allegedly filing a petition for absolute nullity of that judgment. In writ no. 2001-C-2008 he came before this court alleging that he gave his petition for absolute nullity to prison officials to mail to the district court and to counsel of record for all defendants on September 4, 2001. However, he alleged that he never heard from the district court. A review of the petition for nullity, which he attached to his writ application, revealed that the plaintiff was now arguing that the judgment issued in case No. 99-16547 was null because the trial court lacked jurisdiction to hear and decide that case. On January 15, 2001, this court denied the plaintiffs writ application, specifically noting that it was rejecting the plaintiffs attempts to untimely challenge the February 7, 2000 judgment by filing a petition for absolute nullity.

Meanwhile, at the same time that the plaintiff was pursuing the litigation in case no. 99-16547, he continued his, litigation in case no. 97-10702, the case forming the basis of the instant litigation as well. Following the dismissal of that action, based on the Continental defendants’ exception of improper venue, the plaintiff filed a motion for new trial. On February 11, 2000, the trial court granted the plaintiff a new trial and subsequently amended the October judgment to reflect that the case was being transferred to the 22nd Judicial District court rather than being dismissed. On February 11, 2000, in addition to maintaining Continental defendants’ exception of improper venue, the trial court also granted the Continental defendants’ exception of improper cumulation and severed the claims against the Continental defendants from the claims being asserted against Dr. Hontas.
On February 16, 2000, the plaintiff filed another request for leave to amend his complaint against Dr. Hon-tas, Dr. Butler, and Tulane (the Hon-tas defendants). In the amended complaint, the plaintiff reiterated his previous allegations concerning the inadequacy of the treatment he received after his November 1992 on the job injury. He complained about Dr. Hontas allegedly concealing that he had released medical information to the plaintiffs employer and agents, and he complained that Dr. Hontas and Dr. Butler refused to see him for follow up care in 1995.
|fiIn response 'to the new amended complaint, the Hontas defendants filed exceptions of lis pendens, res judicata, no cause of action, and prescription. Following a hearing on April 28, 2000, the trial court maintained the exception of prescription and dismissed the plaintiffs action. The trial court did not address the other exceptions filed by the defendants.

The plaintiff argued in Lay, 2000-2195, that the trial court erred in granting the Continental defendants’ exception of venue and transferring the case to 22nd JDC and maintaining the Hontas defendants’ exception of prescription. This Court affirmed the trial court’s rulings.

In addition to suing his alleged employers and their insurance companies, the. plaintiff also named his employers’ attorneys as defendants in 99-10702. Defendant, Michael Springman, represented Holi Temporaries in the second worker’s compensation case filed by the plaintiff. Springman filed a motion for summary judgment in the present case alleging the plaintiff did not have a cause of action against him. In the second worker’s compensation action, plaintiff sought benefits from Waste Management. Waste Management then third partied Holi Temporaries for indemnity. Springman filed a motion to dismiss plaintiffs claim without prejudice when the plaintiff failed to answer discovery requests. The worker’s compensation judge granted the motion and dismissed plaintiffs claim without prejudice. The plaintiff alleged in his present petition that Springman intentionally disputed plaintiffs claims that the worker’s compensation settlement was null and void. The plaintiff alleged that Springman committed intentional and fraudulent acts in having plaintiffs claim dismissed.

In support of his motion for summary judgment, Springman submitted an affidavit in which he attested that: (1) he represented Holi Temporaries in a worker’s compensation lawsuit filed by Richard Lay against Waste Management in 1996, OWC Docket # 96-04333, wherein Holi Temporaries was a third party |7defendant to Waste Management; (2) his only activities in the above-mentioned lawsuit were to propound discovery requests on Richard Lay, send correspondence regarding a settlement offer to Mr. Lay, and have the case dismissed without prejudice on January 16, 1997 for Richard Lay’s failure to respond to discovery; (3) he has had no other contact with Richard Lay or his workers compensation actions or settlement; and (4) at all material times he complied with the Code of Professional Responsibility and the Louisiana Code of Civil Procedure.

Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. Art. 966. Article 966 was amended in 1996, but the burden of proof remains with the mover to show that no genuine issue of material fact exists. If, as here, the mover will not bear the burden of proof at trial, his burden on the motion does not require him to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C. art. 966 C(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 3/31/99), 731 So.2d 983. After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2); Smith v. General Motors Corp., 31-258 (La.App. 2 Cir. 12/9/98), 722 So.2d 348. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895. Appellate courts review summary ¡¿judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.

In the present case, plaintiff produced no evidence to support the allegations made in his amended petition. Plaintiff alleged that Springman intentionally and fraudulently obtained dismissal of his worker’s compensation action. Plaintiff also averred that Springman intentionally prevented plaintiff from successfully arguing that his settlement was null and void. However, plaintiff has not produced any documentation to support these allegations. Springman produced an affidavit in which he refuted plaintiffs allegations. Springman stated in his affidavit that he only performed the duties of an attorney representing a client in a worker’s compensation claim and obtained a judgment of dismissal without prejudice based on the plaintiffs failure to respond to discovery. Springman produced 'documentation to show that there was nothing fraudulent about his actions. As .plaintiff failed to produce any documentation supporting his allegation of fraud and intentional tort, the trial court did not err when it granted Springman’s motion for summary judgment.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Shantell Lynn Perniciaro, Wife of/and Leon George PERNICIARO, Jr., Individually and on Behalf of the Estate of his Minor Child, etc., v. LIBERTY MUTUAL INSURANCE COMPANY, Lakeside Management Corporation, Causeway Associates, et al.
    Nos. 2002-C-1129, 2002-C-1140.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.
    Leonard J. Cline, Thomas G. Robbins, Leonard J. Cline, P.L.C., and Thomas A. Gennusa, II, Metairie, LA, for Plaintiffs, Shantell Lynn Perniciaro, et al.
    Sidney J. Angelle, William P. McGovern, Jr., Lobman, Carnahan, Batt, Angelle and Nadar, New Orleans, LA, for Defendants, Greater Lakeside Corp., et al.
    (Court composed of Judge MIRIAM G. WALTZER, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS, SR.).
   DENNIS R. BAGNERIS, SR., Judge.

STATEMENT OF THE CASE

The relators seek review of a judgment granting a motion in limine filed by the plaintiffs, Shantell and Leon Pernieiaro, precluding the relator from introducing evidence of relator Leon Perniciaro’s criminal record. The judgment was rendered on May 17, 2002. The relators filed their notice of intention to seek supervisory writs on May 20, 2002. The trial court granted the motion for supervisory writ application.

FACTS

The instant case arises out of a petition for damages for personal injuries allegedly sustained by plaintiff Leon Pernieiaro. On December 30, 1999, Mr. Pernieiaro allegedly fell from a ladder attached to the J.C. Penney building at Lakeside Shopping Center. On the date of the incident, the Ellis Company employed the relator.

The plaintiffs filed a Motion in Limine to exclude Leon Perniciaro’s criminal record and failed urinalysis test results. In response, the relators filed an opposition to the plaintiffs motion. At the May 10, 2002, hearing the trial court granted the plaintiffs motion in part and denied it in part. The trial court excluded |2aII evidence of Leon Perniciaro’s criminal record except for a June 1, 1998, guilty plea to a simple battery charge in St. Tammany Parish.

DISCUSSION

The relators argue the trial court erred by granting the plaintiffs’ motion in limine to prohibit the introduction of evidence regarding Leon Pernieiaro’s criminal record and failed urinalysis test.

La. C.E. art. 609 provides in part:

A. General civil rule. For the purpose of attacking the credibility of a witness in civil cases, no evidence of the details of the crime of which he was convicted is admissible. However, evidence of the name of the crime of which he was convicted and the date of conviction is admissible if the crime:
(1) Was punishable by death or imprisonment in excess of six months under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party; or
(2) Involved dishonesty or false statement, regardless of the punishment.
B. Time limit. Evidence of a conviction under this Article is not admissible if a period of more than ten years has elapsed since the date of the conviction.
F. Arrest, indictment, or prosecution. Evidence of the arrest, indictment, or prosecution of a witness is not admissible for the purpose of attacking his credibility.

La. C.E. art. 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

IsThe relators argue that La. C.E. art. 609 allows the introduction of recent felony convictions to impeach the credibility of another party, and the trial court erred by precluding the introduction of Leon Perni-ciaro’s 1998 guilty plea to possession with the intent to distribute marijuana, which occurred in 1995. Although the trial court did not give reasons for its judgment it can be inferred that La. C.E. art. 609(B) was applied, which does not allow crimes that occurred at least ten years ago to be admitted. La. C.E. art. 609 also prevents the introduction of the plaintiffs past burglary charge to which he pled guilty to a lesser offense in May, 1987.

The relators further argue because the urinalysis test is not an arrest, indictment or prosecution it does not fall within the purview of La. C.E. art. 609. To support their argument the relators cite Maher v. New Orleans Police Department, 2000-1751 (La.App. 4 Cir. 5/30/01), 788 So.2d 1250 and Montegue v. City of New Orleans Fire Department, 95-2166 (La.App. 4 Cir. 5/29/96), 675 So.2d 810 for the proposition that in the context of wrongful termination this court has recognized the importance of failed drug test evidence. However, the instant case is distinguishable from those cited by the relators. As the relators pointed out, the urinalysis tests in those cases were allowed in the context of wrongful termination. The relators do not argue and do not provide any proof that the plaintiffs failed drug test was given in connection with his employment. Additionally, La. C.E. art. 403 allows the trial court, at its discretion, to exclude evidence if the probative value is outweighed by its prejudicial effect.

The relators aver that the evidence of the plaintiffs criminal record had independent relevance. The relators argue the plaintiffs employer, the Ellis Company, was negligent in hiring the plaintiff without conducting a background |4check and drug testing. The relators further argue that because the duty-risk analysis applies the evidence of the plaintiffs criminal record and failed urinalysis test - should be admitted to show the Ellis Company breached its duty to provide a safe work site and to insure the safe practices of its employees. To support this argument the relators cite Harrington v. Louisiana State Board of Elementary and Secondary Education, 97-1670 (La.App. 4 Cir. 5/20/98), 714 So.2d 845; Garrett v. Fleetwood, 93-2382 (La.App. 4 Cir. 9/29/94), 644 So.2d 664 and Hoffman v. Schwegmann Giant Supermarkets, Inc., 572 So.2d 825 (La.App. 4 Cir.1990). However, the instant case seems distinguishable from those cited by the relators. In the cases cited, the employers were found to be negligent in hiring the employees when the employees during the course and scope of their duties injured a third party. As a result, the criminal records of the employees were admitted to support the finding of negligence. In the instant case, the plaintiff is seeking damages for his alleged personal injuries. Additionally, if the rational of the relators’ argument is applied to the instant case, the plaintiffs criminal record should be admissible to show the Ellis Company was negligent in hiring the plaintiff without a background check because the plaintiff injured himself.

Accordingly, we find no error in the trial court’s ruling; therefore, this writ application is denied.

WRIT DENIED.


author: MIRIAM G. WALTZER, Judge.

text:
    STATE of Louisiana v. Thomas PHILLIPS.
    No. 2002-KA-0912.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Harry F. Connick, District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge STEVEN R. PLOTKIN and Judge MIRIAM G. WALTZER).
   MIRIAM G. WALTZER, Judge.

STATEMENT OF CASE

On 1 February 2001, the State charged the defendant by bill of information with simple burglary of a railroad car in violation of La. R.S. 14:62. Following a bench trial, the defendant was found guilty of “possession of property over $500”, in what appears to be a reference to La. R.S. 14:69(B)(1), illegal possession of stolen things when the value of the things is five hundred dollars or more. On 29 March 2001, the court denied a motion for new trial, a motion in arrest of judgment, a motion for post judgment verdict of acquittal, and a motion for appeal. The court thereafter sentenced the defendant to nineteen months in prison. On 1 June 2002, the court found the defendant to be a third felony offender and re-sentenced him to serve eighty months in prison. This appeal follows this Court’s order directing the trial court to have the transcripts prepared and filed.

STATEMENT OF FACT

New Orleans police officer Robert Mon-lyn testified that at 12:30 p.m. on 23 January 2001, he responded to a call regarding a possible break-in of a train car at Lafre-niere and Gibson Streets, and observed a man, later identified as the | ^defendant, throwing white boxes containing halogen lamps from a train car. When the defendant saw the officers, he ran, and the officers gave chase until the defendant scaled a fence. Officer Monlyn radioed Officer Jimmy Slack with a description of the defendant. Officer Slack apprehended the defendant shortly thereafter. The train car’s door appeared to have been pried open, and upon determining that the defendant was not authorized to be on the train, Officer Monlyn arrested him.

Toby Trevett, a special agent for Union Pacific Railroad, testified that Officer Monlyn called him to report that he had just received a call that three persons were suspected of burglarizing his company’s train. When Mr. Trevett arrived at the train, he saw the defendant in handcuffs and three boxes on the ground. Mr. Trevett noticed that thirty-six additional boxes had been removed from the car. Those additional boxes were never located.

The defendant testified that at the time of the incident, he was fifty-five years old, unemployed, homeless, and receiving disability payments. He testified that he had been sleeping under the Lafreniere Bridge when he noticed the officers approaching. Because Officer Slack had arrested him three times in the past for trespassing, sleeping in empty houses, and sleeping under a bridge, he ran for fear of being locked up again. He denied any involvement in the burglary of the train car.

ERRORS PATENT

A review of the record reveals one error patent. On 29 March 2001, the court denied a motion for new trial, a motion in arrest of judgment, a motion for post judgment verdict of acquittal, and a motion for appeal, and the court thereafter sentenced the defendant to nineteen months in prison. La. C. Cr. P. art. 873 ^requires a twenty-four hour delay between the denial of a motion for new trial and sentencing, unless the defendant waives such delay. State v. Lee, 2001-2082, p. 3 (La.App. 4 Cir. 8/21/02), 826 So.2d 616. There is no indication in the record that the defendant waived the delay. This Court, however, has held that where a defendant shows no prejudice and does not challenge his sentence on appeal, any error in failing to observe the twenty-four hour delay is considered harmless. Lee, 2001-2082, p. 3, 826 So.2d 621, citing State v. Ward, 94-0490, p. 7-8 (La.App. 4 Cir. 2/29/96), 670 So.2d 562, 566. The defendant does not challenge his sentence in the instant appeal; thus, and in light of our disposition of the first assignment of error, any error in failing to observe the twenty-four hour delay is harmless and moot.

FIRST ASSIGNMENT OF ERROR: The defendant argues, and the state concedes, that his conviction must be reversed because the verdict is not responsive to the charged offense.

The defendant, charged with simple burglary, was convicted by the trial court of possession of stolen property worth over $500.00. Article 814 of the Code of Criminal Procedure provides the list of legislatively approved responsive verdicts, and the list is exhaustive for the offense. State v. King, 2000-0618, p. 5 (La.App. 4 Cir. 3/7/01), 782 So.2d 654, 659. The permissible responsive verdicts to the charge of simple' burglary are: guilty; guilty of attempted simple burglary; guilty of unauthorized entry of a place of business; guilty of attempted unauthorized entry of a place of business; or not guilty. La.C.Cr.P. art. 814.

[ /Therefore, the parties are correct that the trial court erred in rendering its verdict and that the defendant’s conviction must be reversed.

SECOND ASSIGNMENT OF ERROR: The constitutional rule against double jeopardy prohibits the State from retrying the defendant for simple burglary-

This issue properly is raised by motion to quash a bill of information or indictment, neither of which is before this Court. Defendant’s second assignment of error is premature.

CONCLUSION

The trial court erred by rendering a non-responsive verdict, necessitating reversal of the defendant’s conviction.

CONVICTION AND SENTENCE REVERSED.

      . The court reporter certified that after a diligent search, the tapes of the multiple bill hearing could not be located.

      . Under La.C.Cr.P. art. 820, all provisions regulating responsive verdicts and the effect of verdicts apply to cases tried without a jury.


author: | JAMES F. MCKAY III, Judge.

text:
    STATE of Louisiana v. Anthony SYLVESTER.
    No. 2002-KA-0743.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Harry F. Connick, District Attorney of Orleans Parish, Leslie Parker Tullier, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appel-lee.
    Karen G. Arena, Louisiana Appellate Project, River Ridge, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. MCKAY III, Judge DENNIS R. BAGNERIS, Sr, Judge MICHAEL E. KIRBY).
   | JAMES F. MCKAY III, Judge.

STATEMENT OF CASE

On August 15, 2001, the defendant, Anthony Sylvester, was charged by bill of information with possession of heroin in violation of La. R.S. 40:966. The defendant pled not guilty at his arraignment on August 23, 2001. A preliminary and suppression hearing was held on October 5, 2001. The trial court found probable cause and denied the defendant’s motion to suppress evidence. On October 18, 2001, the defendant elected a bench trial. The trial court found the defendant guilty of attempted possession of heroin. On the same day, the State filed a multiple bill alleging the defendant to be a second felony offender. The defendant pled guilty to the multiple bill. The defendant waived all legal delays. The trial court then sentenced the defendant, under the multiple bill, to thirty months at hard labor.

STATEMENT OF FACT

New Orleans Police Officers Louis and Williams were patrolling the area of the Melpomene Housing Development at approximately 10:30 a.m. on August 9, 2001, when they observed the defendant and an unknown black male involved in what appeared to be a hand-to-hand narcotics transaction. The officers observed |?the defendant hand the unknown subject currency. The subject then displayed an object in his left hand. The defendant took the object and placed it in his cap, which he put on his head. The subject then noticed the officers and ran into the housing development. The defendant turned and started to walk across Martin Luther King Boulevard. Officer Williams exited the police vehicle and ran after the unknown subject. Officer Louis monitored the defendant’s actions. The defendant entered a store on the corner of Freret Street and Martin Luther King Boulevard. Officer Williams returned after his unsuccessful attempt to apprehend the subject. Officer Louis and Officer Williams walked over to the store and were about to enter the store when the defendant walked out. Officer Louis advised the defendant of his rights and conducted a pat down frisk. The officer removed the defendant’s cap and two foil packets fell out of the cap. After completing the frisk, Officer Louis retrieved the two packets and found that they contained heroin.

The parties stipulated at trial that the substances in the two packets testified positive for heroin.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

In his sole assignment of error, the defendant contends that the trial court erred in denying his motion to suppress evidence. The defendant argues that the officer’s removal of his cap exceeded the scope of a Terry frisk. We disagree with defendant’s contention that this is a Terry frisk and find that the issue is one of probable cause to arrest.

[¿¡Standard of Review of a Motion to Suppress

The appellate court reviews the district court’s findings of fact on a motion to suppress under a clearly erroneous standard, and will review the district court’s ultimate determination of Fourth Amendment reasonableness de novo. U.S. v. Seals, 987 F.2d 1102 (5 Cir.1993), cert. denied, 510 U.S. 853, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993). On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo. United States v. O’Keefe, 128 F.3d 885 (5 Cir.1997), cert. denied, 523 U.S. 1078, 118 S.Ct. 1525, 140 L.Ed.2d 676 (1998). An appellate court reviews the district court’s determinations of reasonable suspicion and probable cause de novo. U.S. v. Green, 111 F.3d 515 (7 Cir.1997), cert. denied sub nom. Green v. U.S., 522 U.S. 973, 118 S.Ct. 427, 139 L.Ed.2d 328 (1997). Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. Maryland Cas. Co. v. Dixie Ins. Co., 622 So.2d 698 (La.App. 1 Cir.1993), writ denied 629 So.2d 1138 (La.1993). In reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence from the motion hearing. It may also consider the evidence presented at trial. State v. Nogess, 98-0670, p. 1 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 137.

Probable Cause to Arrest

La.C.Cr.P. art. 213 provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or in close pursuit;
|4(2) The person to be arrested has committed a felony, although not in the presence of the officer;
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer;

It is not a prerequisite for the existence of probable cause to make an arrest that the police officers know at the time of the arrest that the particular crime has definitely been committed; it is sufficient that it is reasonably probable that the crime has been committed under the totality of the known circumstances. State v. Gates, 24,995 (La.App. 2 Cir. 1/19/94), 630 So.2d 1345, writ denied sub nom. Gates v. Jones, 94-0640 (La.6/17/94), 638 So.2d 1091. An arresting officer need only have a reasonable basis for believing that his information and conclusions are correct. Rodriguez v. Deen, 33,308 (La.App. 2 Cir. 5/10/00), 759 So.2d 1032, writ denied, 2000-1414 (La.6/23/00), 765 So.2d 1049. For an arrest, the law does not require that “reasonable cause to believe” be established by evidence sufficient to convict; the arresting officer need not be convinced beyond a reasonable doubt of the arrested person’s guilt. La.C.Cr.P. art. 213; State v. Weinberg, 364 So.2d 964 (La.1978). The standard of reasonable cause to believe is a lesser degree of proof than beyond a reasonable doubt, determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience. Id.

Probable cause for an arrest must be judged by the probabilities and practical considerations of everyday life in which average people, and particularly average police officers, can be expected to act. State v. Franklin, 598 So.2d 1147 (La.App. 1 Cir.1992), unit denied, 604 So.2d 1317 (La.1992). The reputation of the area is an articulable fact upon which a police officer may legitimately rely. Id. |fiThe determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or a preponderance standard demands. State v. Green, 98-1021 (La.App. 4 Cir. 12/22/99), 750 So.2d 343, writ denied, 96-2610 (La.6/20/97), 695 So.2d 1348. State v. Short, 96-1069 (La.App. 4 Cir. 5/7/97), 694 So.2d 549. Deference should be given to the experience of the police who were present at the time of the incident. Id. The fundamental philosophy behind the probable cause requirement of the Fourth Amendment is that common rumor or report is not an adequate basis for the arrest of a person. State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179. Police are not required to arrest an individual at the point at which probable cause for arrest arises. State v. Coleman, 412 So.2d 532 (La.1982).

In State v. Zayas, 93-1473 (La.App. 4 Cir. 5/26/94), 637 So.2d 1237, the police officer had probable cause to arrest the defendant and co-defendant charged with possession of cocaine. The search of the co-defendant’s bag of potato chips was lawful, where the police had information from a confidential informant about the defendant, his operating procedure, and address where drug trafficking had occurred a week earlier, and where the defendant and co-defendant appeared to be carrying out a drug transaction similar to the transaction observed a week before the arrest.

In State v. Shelton, 96-2322 (La.App. 4 Cir. 10/30/96); 682 So.2d 338, the police officers who observed the defendant and another individual conduct hand transactions in an area known for frequent drug activity and observed the defendant place a clear plastic bag in his front shirt pocket when he saw the officer, had probable cause to make a warrantless arrest of the defendant and | ^search the defendant pursuant to the arrest. U.S.C. Const.Amend. 4; La.C.Cr.P. art. 213.

In State v. Davis, 612 So.2d 1052 (La.App. 4 Cir.1993), an officer who was in an area known for drug trafficking, saw a defendant showing a matchbox to another person. The officer had probable cause to arrest the defendant where the officer knew that matchboxes are commonly used to carry cocaine.

The defendant in the present case does not argue that the police officers did not have reasonable cause to stop him. He contends that the officer exceeded the scope of a Terry frisk for weapons when the officer told him to remove his cap. This Court considered the identical issue in State v. Isidore, 2000-2781, (La.App. 4 Cir. 5/23/2001), 789 So.2d 79, 84-86, writ denied, 2001-1728 (La.6/7/2002), 817 So.2d 1145.

Defendant’s reliance upon State v. Isidore is misguided. In Isidore, the defendant was being investigated for the theft of a handgun. After Isidore was stopped, the officers shook out the defendant’s hat during a weapons frisk and discovered narcotics. In Isidore, there was no evidence that the officers witnessed the defendant place anything into or under his hat. Nor did the officers witness Isidore engage in a hand-to-hand transaction. Furthermore, Isidore did not flee. The facts of the case sub judice are distinguishable from Isi-dore. The officers in the instant matter observed the defendant engage in a narcotics transaction and observed the defendant place the object in his hat. The parties to the transaction then fled. Clearly, the officers had probable cause to believe the defendant had just purchased the narcotics and placed it in his hat, and were therefore justified in |7removing his hat. The trial court was correct when it denied the defendant’s motion to suppress the evidence.

For the above and foregoing reasons we affirm the ruling of the trial court.

AFFIRMED.