text:
    STATE of Louisiana, Appellee v. Walter MOORE, Jr., Appellant.
    No. 38,444-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.
    Rehearing Denied Aug. 12, 2004.

      Burnes, Burnes & Talley, by Dmitrc I. Burnes, Alexandria, E. Roland Charles, Louis Granderson Scott, for Appellant.
    Jerry L. Jones, District Attorney, Charles L. Brumfield, Assistant District Attorney, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   DREW, J.

Walter Moore, Jr., was convicted of second degree murder and sentenced to life imprisonment, without benefit of probation, parole, or suspension of sentence. We affirm his conviction and sentence.

FACTS

In the early morning hours of November 4, 1999, John William Gaines was found shot to death in his Bastrop liquor store. The police had gone to investigate when Gaines failed to come home after the store’s scheduled 11:00 p.m. closing. The victim was found face down on the floor behind the store counter, with a single bullet wound to his head. He had been killed, execution style, while lying on the floor. The autopsy revealed that the gun was fired approximately one and a half feet from the back of Gaines’ head. A spent 9-millimeter shell casing was found on the floor next to his head. Money and merchandise were missing from the store, along with a Ruger revolver. The interior security video cameras had been destroyed and the tapes removed. The police found the imprint of a shoe on a white sheet of paper found on the floor of the store. Various items were checked 'for fingerprints, but no usable prints were found.

Later that morning, Altieia Hawkins told the officers that the night before, as she had gone through the drive-through near closing time, she saw Johnny Williams and. the defendant standing behind the liquor store. ■ Hawkins -knew both .men, and said hello to them, thinking that they were acting very suspiciously. At the time, both men were wearing sweater caps. As she watched the two,- she felt like something bad was about to happen, | ¿.but did not tell the person waiting on her; nor the police. When she heard the next morning, that. Gaines had been shot, she then called the police.

An employee of the liquor store, Eric Wheeler, testified that he saw Moore come to the store several times on November 3, 1999, including once as a passenger in a car that pulled through the drive-through. Wheeler did not know the driver, though he knew the defendant and chatted , with him. Moore asked Wheeler when he was getting off work, and if he wanted to go out, promising to come pick him up. Though Wheeler got off work at 9:00 p.m. and promptly went home, he never saw the defendant again that night.

Later on November 4, 1999, the police took both suspects into custody. The defendant did not give a statement to the police. Williams confessed, however, telling the officers that:

• He and Moore met and planned the robbery.
• They bought a blue duffle bag from Wal-Mart.
• They wore stocking-ski-mask caps and gloves.
• Moore was armed with a 9-millimeter caliber pistol.
• When they entered the store, he locked the door as Moore confronted Gaines.
• Williams was supposed to go into the office and retrieve the video security tapes.
• While in the office for that purpose, Williams heard a gunshot.
• When he ran back into the store, he saw Gaines face down on the floor.
• He and the defendant stuffed the cash into a blue duffle bag, along with three security tapes and merchandise.
• Moore told him that he shot Gainés because the victim had recognized him.
|8« They fled to an abandoned house on Birch Street, where they hid the bag.
• They then went a short distance to the home of Williams’ girlfriend, Nicole ' Burrell.
• Williams gave some of his share of the money to Burrell.

Ms. Burrell testified that:

• The two came to her home about 11:30 p.m.
• Moore was wearing the ski mask cap.
• They had a lot of money which they advised came from a liquor store robbery.
• Moore told her that he had shot a man in the back of the head and killed him.
• She did not receive any of the money.

In a macabre twist, Moore apparently took the three video tapes home for viewing. The two hid the masks and Williams’ shoes in a wooded area in Burrell’s back yard. Thereafter, the two men split up.

After Williams and Moore were arrested for the first degree murder of Gaines, Williams took the police to an abandoned house in the neighborhood where he and Moore lived. The police found and seized a blue duffle bag filled with stolen liquor and cigarettes, a 9-millimeter pistol, and the stolen Ruger revolver. Subsequent forensic testing established that the 9-millimeter pistol, which had been stolen in Baton Rouge, was the weapon used to kill Gaines.

14At Williams’ house, inside a night stand, the police found $555.00 in cash hidden in an empty VHS video box.

In a wooded area behind the residence of Nicole Burrell, the police found a pair of Nike tennis shoes and a black ski mask cap. Williams admitted that the shoes belonged to him. The shoes were later identified as the ones that made the impression on the paper found at the murder scene. The cap was sent to the crime lab for DNA testing. A DNA sample was retrieved at the lab from saliva found in the mouth area of the stocking cap.

Williams told the officers that the defendant had hidden the stolen surveillance tapes at 806 Washington, where the defendant lived with his mother. The police searched the home on the afternoon of November 4, 1999. In this first search, the police did not find any incriminating evidence. Four days later, on November 8, 1999, the police conducted a second search of the IVIoore home, whereupon the tapes were found. The tapes did not show the robbery and murder.

Williams agreed to testify against the defendant in exchange for his being allowed to plead guilty to the reduced charge of armed robbery.

The charge against Moore was subsequently reduced to second degree murder, for which crime he was convicted at jury trial.

The state sought to introduce the DNA evidence to prove that the DNA found on the ski mask matched the defendant’s DNA. The defendant objected, asserting the DNA testing results were inadmissible because the state obtained a warrant for the DNA testing, and obtained DNA samples |fifrom the defendant, without a contradictory hearing or any notice to defendant’s counsel. The trial court correctly found that neither notice nor a contradictory hearing was required. The trial court also found that the defendant did not file a motion to suppress, and therefore had failed to properly preserve this issue.

Defendant’s mother, Zandria Moore, testified that:

• On the night of November 3, 1999, the defendant was not home when she went to bed around 8:80 to 9:00 p.m.
• When she got up briefly around 1:00 a.m., she checked on the defendant, who was asleep in his bed.
• The defendant was still in bed asleep when she left the house the next morning.
• When she returned home, she found the defendant still asleep, while Johnny Williams was sitting in the defendant’s bedroom, watching cartoons.
• She asked Williams what he was doing in her house.
• He apologized and left.
• She woke the defendant to determine if he was going to work, to which he replied in the negative.
• On November 4, 1999, the defendant did not appear to be nervous or frightened.
• When the officers found the video tapes in the laundry room, they put them in her VCR to play.
• Between November 4 and 9, 1999, there were times that nobody was in her home.

The defendant’s father, Walter Moore, Sr., testified that:

• As he was leaving his house on the morning of November 4, 1999, the defendant was in his bed sleeping.
• As he drove off, he saw Johnny Williams coming up the sidewalk.
|fi* He did not know his son had been arrested until he returned home from work, when the police came to the door with a search warrant.
• The police searched the entire house, including the laundry room.
• The house rule was that the defendant could have none of his male Mends in the house.

On numerous occasions during the trial, the trial court held conferences with counsel, both in chambers and in court, regarding the jury charge. The skill and patience of the trial court is noted and appreciated. The prosecutor and defense counsel negotiated the final jury charge, under the careful guidance and supervision of the trial court, whereupon:

• It was agreed to simplify the definition of second degree felony murder by eliminating all of the enumerated felonies other than armed robbery; and
• The jury charge as to felony manslaughter was amended to more simply read, in part:
“... that the killing took place while the defendant was engaged in the perpetration or attempted perpetration of any felony not enumerated under the Second Degree Murder Statute or of any intentional misdemeanor directly affecting the person even though he had no intent to kill or to inflict great bodily harm.”

After the defendant concluded with his witnesses, the trial court again held a charge conference to determine if the state and the defendant agreed with the language of the jury charge. Both'the state and the defendant again consented to the jury instructions.

After beginning deliberations, the jury sent the trial court a note, asking for the transcripts of statements made by the defendant or Johnny Williams. After being advised of this request, the defendant moved for a |7mistrial, arguing the jury was not able to fulfill its obligation to not consider the defendant’s post-arrest silence. The defendant’s motion was denied. The trial court declined to provide any transcripts or statements to the jury.

The jury found the defendant guilty of second degree murder. The trial court ordered a pre-sentence investigation report, denied motions for post-verdict judgment of acquittal and for new trial, and sentenced the defendant to life imprisonment, without benefit of probation, parole, or suspension of sentence. This' appeal followed.

DISCUSSION

I. Denial of a motion for mistrial based on the jury adversely considering defendant’s decision not to testify

The defendant argues that the jury improperly considered his silence at trial, as demonstrated by the jury’s request for copies of any statements by him and Johnny Williams. The state argues that:

• The jury did not ask for testimony, but for any pre-trial statements.
• The reason for this request is unknown, but does not indicate any prejudicial conduct by the jury.,
• The jury’s request .was properly denied, as per La. C. Cr. P. art. 793.

La. Const, art. 1, § 16, provides, in pertinent part, “[n]o person shall' be compelled to give evidence against himself.”

La. C. Cr. P. art. 775 provides:
A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
ls(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

The defendant cites no other evidence, besides the jury request, and provides this court with no jurisprudence supporting his argument. Clearly, the trial court properly dealt with and denied the jury’s request.

The ordering of a mistrial is a drastic remedy and, except in instances in which it is mandatory, is only warranted if substantial prejudice results which deprives defendant of a fair trial. State v. Burdgess, 434 So.2d 1062 (La.1983); State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Warren, 28,889 (La.App.2d Cir.12/11/96), 712 So.2d 500. Moreover, the trial court’s rulings with regard to trial conduct should not be disturbed absent a manifest abuse of discretion. State v. Warren, supra; State v. Deboue, 496 So.2d 394 (La.App. 4th Cir.1986).

There is no rational basis by which to conclude that this innocuous jury request indicates an improper consideration of the defendant’s right to remain silent. The general jury charge advised the jurors of the defendant’s | flright to remain silent, the state’s burden of proving all elements of the offense, and cautioned the jurors from holding the defendant’s silence against him, and these instructions were sufficient to cure any possible prejudice which may have resulted.

II. The abbreviated definitions of second degree murder and manslaughter

The defendant argues the jury instructions as to second degree murder and manslaughter were so incomplete as to preclude the jury’s ability to properly consider manslaughter as a responsive verdict, and that his trial counsel was ineffective in failing to object to the allegedly defective jury instruction language.

The state argues the language at issue was consented to by the defendant, precluding his raising the issue on appeal, and that the language accepted reflected the evidence presented.

La. C. Cr. P. art. 801 provides:

A. The court shall charge the jury after the presentation of all evidence and arguments. The court shall reduce its charge to writing if it is requested to do so by either a defendant or the state prior to the swearing of the first witness at the trial on the merits. The court’s written charge shall be read to the jury. The court shall deliver a copy thereof to the defendant and to the state prior to reading it to the jury.
B. (1) After such written charge is read to the jury, a copy of the written charge shall be delivered to the jury if such delivery is consented to by both the defendant and the state in open court but not in the presence of the jury. (2) The lack of consent by either the defendant or the state to the delivery of the written charge to the jury shall not be communicated to the jury.
|inC. A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

The defendant complains that the trial court erred in drastically reducing the possible listed felonies for second degree felony murder, arguing that this may have saved some time, but it created confusion with the jury as to its ability to render a responsive verdict of manslaughter. We disagree, chiefly for two reasons:

• The omissions were entirely consistent with a reasonable clarification of the legal situation; and
• The changes were agreed upon by counsel, under painstaking supervision and guidance of the trial court.

La. R.S. 14:30.1 A(2)(á), as written at the time of the offense, defined second degree murder as a homicide committed without the intent to kill or inflict great bodily harm, when the offender is engaged in the perpetration or attempted perpetration of 11 felonies: aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery.

In the jury instructions, the trial court, at the request and consent of the parties, limited the felonies listed in the definition of second degree l^felony murder to only “armed robbery.” Also included in the jury instructions was a definition of armed robbery, R.S. 14:64.

Arguably, this places a higher burden on the state. For instance, the final charge neither included nor defined the crime of simple robbery, R.S. 14:65, which requires fewer elements of proof than does armed robbery, which was included and defined in the jury instruction. ,

The defendant points out that in the instruction relative to - manslaughter, the crime was defined as a homicide committed during “any felony not enumerated under the Second Degree Murder Statute .... ” The defendant notes the actual language is “any -felony not enumerated in Article 30 or 30.1.” In explanation, there áre two'factors at work here:

First, at the time of the crime, the exact same 11 enumerated felonies were listed for felony murder one and felony murder two. In addition, felony murder two also included cruelty to juveniles, a distinction without a difference herd, as the victim was a grown man.

Second, there are hundreds, if not thousands of other felonies other than these dozen. Defendant suggests that the incomplete jury instruction kept the jury from considering the “other felony” manslaughter option, since it was not told of all 12 enumerated felonies, and thus, would not know which were the “other felonies.” Particularly, he argues that theft of $500 or more is one “other felony” by which the jury could have arrived at a felony manslaughter verdict. The simple refutation is that the judge and attorneys merely simplified the charge for the jury, to aid them in reaching a just verdict. To follow defendant’s-argument, not only should every enumerated | ^.felony have been listed and defined, but hundreds of other non-enumerated felonies should have been listed and defined. Defendant’s suggestions would result in a jury charge lasting several hours, if not days, increasing confusion of the jury.

Unless objected to contemporaneously, an irregularity or error in the charge to the jury may not be asserted on appeal. La. C. Cr. P. art. 841; State v. Belgard, 410 So.2d 720 (La.1982); State v. Wilson, 28,403 (La.App.2d Cir.8/21/96), 679 So.2d 963. Defendant’s present objection to the language of the jury instructions is 13th hour hindsight, and if granted, would allow him to have it one way at trial and another on appeal.

III. Ineffective assistance of counsel

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id.

However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. 1 ^Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s' performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Roland, 36,786 (La.App.2d Cir.6/5/03), 850 So.2d 738; writ denied, 2003-2395 (La.2/13/04), 867 So.2d 685; State v. Moore, 575 So.2d 928 (La.App. 2d Cir. 1991). A reviewing court must give great deference to trial counsel’s judgment, his tactical decisions, and his trial strategy, strongly presuming he has exercised reasonable professional judgment. Roland, supra; Moore, supra.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel’s | uunprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Roland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9.

The obvious problem with the defendant’s ineffective assistance of counsel claim is that the other enumerated felonies listed in the second degree murder statute clearly did not fit the evidence in the case. There was no rape, arson, burglary, kidnapping, escape, or drive-by shooting. Likewise, the use of the definition of first degree robbery or simple robbery in the instructions is not necessary, as the evidence clearly shows that a defendant was armed during the robbery. Sadly, the bullet hole in the body of the victim amply proves this. The abbreviated instructions were appropriate, considering the evidence that the liquor store employee was robbed, then executed in cold blood by a killer armed with a firearm.

It is clear the trial court, prosecutor and defense counsel agreed to a streamlining of the instructions regarding both second degree murder and manslaughter for two reasons: (1) to reflect the adduced evidence, and (2) to avoid confusing the jury.

The evidence clearly shows that the defendant was killed during the crime of armed robbery. Accordingly, even if the defendant had requested that all of the enumerated felonies be listed in the instructions, the trial court could correctly have rejected the request, based on the evidence before it. State v. Gipson, 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402.

|1BAt appeal, defense counsel argued that justice was worth another 20 minutes of the court’s time to instruct the jury in all possible details. This argument misses the boat. The issue is not the amount of time. The issue here is juror comprehension. The trial court simply made a reasonable effort to facilitate the jury’s understanding of the legal requirements before them, considering the nature of the evidence and the'best efforts of counsel to facilitate this end.

The defendant has not demonstrated that:

• his trial counsel erred in approving the instructions,
• but for the alleged defect in the jury instructions, the outcome would have been different, nor that
• the jury reached an unreliable verdict.

IV. The mask and related DNA evidence

The defendant argues the post-arrest DNA testing of the defendant was inadmissible because the warrant for the testing was issued without a contradictory hearing and without allowing him assistance from his counsel during the actual securing of this evidence.

The state responds that the search warrant for a DNA sample from the defendant was properly issued and no notice to the defendant’s counsel or a contradictory hearing was required. The state is correct.

La. C. Cr. P. art. 703 provides, in pertinent part:

A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
C. A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity 11fitherefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.
E. (1) An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The state may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant’s testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant’s testimony at the trial on the merits.
* * *
F. A ruling prior to trial on the merits, upon a motion to suppress, is binding at the trial. Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.

Prior to trial, the state obtained a search warrant to obtain a DNA sample from the defendant. The results of the test established that the DNA in the saliva found in the stocking mask seized following the murder belonged to the defendant. The defendant did not file a motion to suppress this evidence prior to trial. Instead, only when the state attempted to offer the test results into evidence did the defendant object. The defendant argues, without citing any authority, that the trial court erred in letting the DNA evidence be introduced.

La. C. Cr. P. art. 703(C) provides that motions to suppress evidence shall be filed prior to trial in accordance with La. C. Cr. P. art. 521. La. C. Cr. P. art. 703(F) provides that, “[failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.” The reason for this rule is to eliminate from a jury trial the disputes over police conduct, unrelated to a defendant’s guilt or innocence. This prevents unwarranted delay during the trial itself, in an effort to prevent confusion and inconvenience to the jury. In addition, the state and the defendant are spared the expense of a trial where the matter can be resolved by legal determination of constitutional issues. State v. Christian, 26,589 (La.App.2d Cir.1/25/95), 649 So.2d 806, writ denied, 95-0791 (La.9/15/95), 660 So.2d 448.

In any event, however, the defendant has made no showing that the state committed any constitutional error by obtaining a search warrant for a DNA sample without a hearing, nor by harvesting the defendant’s DNA at a time when his counsel was not present.

A. Fourth Amendment argument

Such a search as here does not violate the Fourth Amendment, so long as the settings and procedures are reasonable. See, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Schmerber involved a warrantless blood test under exigent circumstances, in a DWI case. Here, the state properly secured a search warrant in advance of the simple procedures required to obtain this physical evidence.

| iaWhere evidence of a serious crime is sought, a request by the state for involuntary surgery upon a defendant may be considered by the magistrate. See, State v. Martin, 404 So.2d 960 (La.1981). The balancing test is whether probable cause exists that the procedure will yield material evidence, as weighed against the health and safety of the defendant. See, State v. Stephens, 2000-2472 (La.3/16/01), 782 So.2d 562.

These matters are necessarily decided on a case-by-case basis. For example, stomach pumping for the purpose of retrieving evidence has been held to “shock the conscience.” Mr. Moore underwent no such indignity.

Defendant also argues that a contradictory hearing should have been held before the instant search warrant issued, a proposition for which there is no jurisprudential support. Under the facts and circumstances of this murder case, the state certainly behaved reasonably in seizing this physical evidence from Moore. The Fourth Amendment was not violated. If ever an issuing magistrate violates the law by issuing an unconstitutional- search warrant, another magistrate can later review and-reexamine that warrant at a suppression hearing. Here, no motion to suppress was filed.

B. Fifth Amendment argument

The Fifth Amendment privilege against self-incrimination applies only to testimonial evidence, not physical evidence. See, State v. Clark, 2002-1463 (La.6/27/03), 851 So.2d 1055, cert. denied, — U.S.-, 124 S.Ct. 1433, 158 L.Ed.2d 98 (2004). One defendant was made to utter words purportedly said by the robber, with no self-incrimination problem, as the words were not testimonial in nature. See, U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

C. Sixth Amendment argument

Defendant cites no cases in support of his complaint that his counsel was not present at the time his DNA was harvested. Nor has he advised as to what specific harm he suffered in the absence of his lawyer. The closest jurisprudence supporting defendant’s position may be the requirement that a post-indictment participation in a lineup requires the presence of counsel. See, Wade, supra. We decline .to pretzel ourselves so as to stretch this precept to the simple harvesting of bodily cells. The police here secured judicial approval before painlessly taking specimens from Moore’s person, which was all they legally had to do.

V. Leading questions

The defendant argues the state’s leading questions to Johnny Williams prevented him from having a fair trial.

La. C.E. Article 611(C) provides:

C. Leading questions. Generally, leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony and in examining an expert witness on his opinions and inferences. However, when a party calls a hostile witness, a witness who is unable or unwilling to respond to proper questioning, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Generally, leading questions should be permitted on cross-examination. However, the court ordinarily shall prohibit counsel for a party from using leading questions when that party or á person identified with him is examined by his counsel, even when the party or a person identified with him has been called as a witness by another party and tendered for cross-examination.

lanA leading question is one which suggests the answer the witness is to give. State v. White, 254 La. 389, 223 So.2d 843 (1969); State v. Hattaway, 28,060 (La. App.2d Cir.5/8/96), 674 So.2d 380, writ denied, 96-1900 (La.1/10/97), 685 So.2d 141. Leading questions are generally not appropriate on direct examination. La. C.E. art. 611(C).

Leading questions are also not the type of prosecutorial error which diminish the reliability of a jury’s verdict. State v. Felde, 422 So.2d 370, 385 (La. 1982), cert. denied, 461 U.S. 918, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983); State v. Hattaway, supra. The use of leading questions is largely within the trial court’s discretion, and only clear abuse which prejudices the defendant’s rights will justify reversal of a conviction. State v. Felde, supra; State v. Hattaway, supra; State v. Essex, 24,781 (La.App.2d Cir.5/5/93), 618 So.2d 659.

A review of the record does not show the trial court abused its discretion in allowing the state to question Williams as it did. As pointed out by both the defendant and the state in briefs, the majority of the questions at issue resulted in yes or no answers. Questions calling for yes or no answers do not constitute impermissible leading questions where the questions do not suggest the answer that the witness is expected to give. State v. Hotoph, 99-243 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, units denied, 99-3477, 00-0150 (La.6/30/00), 765 So.2d 1062, 1066.

Even if some of the questions asked by the state of Williams were inappropriately leading, nothing in the defendant’s brief indicates how those questions were the type of prosecutorial misconduct which diminishes the [«^reliability of the jury’s verdict. There is no indication that the questioning led Williams to acquiesce to any false suggestions. State v. Murray, 375 So.2d 80 (La.1979). There is also no showing that Williams testified differently than he did when confessing to the police. Additionally, the defendant’s trial counsel conducted very extensive and rigorous cross-examination, challenging virtually all of this testimony.

CONCLUSION

The defendant’s conviction and sentence are AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

      . The store is usually referred to in the transcript as "Thrifty Liquor.”

      . The abandoned house was located at 314 Birch. Williams’ house was located at 215 Birch. The defendant lived occasionally with his mother at 806 Washington, about four to five blocks from 314 Birch.

      . Williams later received 30 years at hard labor, without benefit of probation, parole, or suspension of sentence.

      . The state's burden was also exhaustively explored during voir dire.

      . Curiously, R.S. 14:30.1 A(2)(b) adds a 12th enumerated felony, i.e., cruelty to juveniles, R.S. 14:93, to the crime of Second Degree Felony Murder. This subsection requires, as an apparent glitch, that the killing must occur during the perpetration of cruelty to juveniles. The crime of second degree murder is satisfied under R.S. 14:30.1 A(2)(a) should the killing occur during the perpetration or attempted perpetration of any of the other 11 crimes (Our emphasis).

      . Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).


source: Caselaw Access Project

author: L STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, In the Interest of L.R.S.
    No. 38,812-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.
    Rehearing Denied July 29, 2004.

      Susan E. Skidmore, Monroe, for Plaintiff Appellant, State of Louisiana, DOSS.
    Elizabeth C. Brown, West Monroe, for Plaintiff Appellee, L.R.S.
    Layne M. Adams, Monroe, for Defendant Appellee, L.S.
    Bobby R. Manning, for Defendant Ap-pellee, Moses Parker.
    Before STEWART, GASKINS and MOORE, JJ.
   L STEWART, J.

The Louisiana Department of Social Services (“DSS”) appeals a judgment of the Monroe City Court denying a petition to terminate the parental rights of L.S., the mother of the minor child, L.R.S. The court found that DSS failed to prove the elements for termination of parental rights under La. Ch. C. art. 1015(5) by clear and convincing evidence. For the reasons stated in this opinion, we reverse the judgment and order termination of the parental rights of the mother, L.S.

FACTS

Records introduced into evidence at the hearing on the petition for termination of parental rights detailed L.S.’s' long history of mental illness and involvement with the foster care system. L.S. was in state custody from the ages of 6 to 18, with placements in foster homes, group homes, and treatment facilities. At the age of 14, L.S. was raped by the adult son of a foster parent and gave birth to a child, who was also placed into state custody and adopted after L.S.’s parental rights were terminated.

Due to her mental illness, L.S. has had numerous hospitalizations since 1991. Her most recent diagnoses have included Major Depressive Disorder and Borderline Personality Disorder. Anger, paranoia, and depression result from her illness. She has poor coping skills and becomes easily overwhelmed and agitated. Her anger has manifested itself through self-mutilation, suicidal ideation, and suicide attempts generally involving overdoses of medication. L.S. was hospitalized at least six times in the three months preceding the birth of L.R.S.

| ¡.L.R.S. was born on April 28, 2002. Following the birth, the Office of Community Services (“OCS”) in Ouachita Parish opened a Family Services case on L.S. and arranged for Homemaker’s Assistance for her. However, on May 20, 2002, OCS received a report that L.S. had overdosed on medication while home alone with the baby. An OCS worker went to L.S.’s home and arranged for her to be hospitalized after L.S. stated that she had taken 10 pills each of Zoloft and Haldol to relax. By instanter order of May 22, 2002, L.R.S. was placed in state custody due to the report of neglect. Thereafter, L.R.S. was adjudicated- a child in need of care and placed in a certified foster home.

The court approved a case plan for reunification developed by the family team conference and appointed a CASA volunteer, as authorized by La. Ch. C. art. 424, to represent the best interests of the child. Goals established by the case plan required L.S. to cooperate with OCS, maintain adequate income, maintain a permanent home free from drugs, alcohol, violence and safety hazards, maintain contact with L.R.S. and take responsibility for appropriate parenting, locate L.R.S.’s father, and identify her mental illness as a contributing factor for the neglect of L.R.S. and take steps to change her patterns.

The case plan assessment of November 2002, stated that L.S. was doing her best to complete the case plan, but that her mental ■ instability was the main problem preventing reunification. Efforts to find a suitable | ¡¡placement for L.R.S. with relatives whose names were submitted by L.S. were unsuccessful. , On November 15, 2002, the court again approved a case plan for reunification.

By the May 2003 case plan assessment, the goal had been changed to termination of parental rights for L.S. and adoption for L.R.S. The assessment noted that while L.S. made some progress on the case plan, she made little progress toward diminishing the main barrier to reunification — her mental instability. Since L.R.S. had been placed in state custody, L.S. had been hospitalized 9 times for episodes related to her mental instability. Episodes which occasioned L.S.’s psychiatric hospitalizations included overdosing on medication, cutting herself, and threatening to harm herself or others. OCS had some difficulty verifying L.S.’s hospitalizations and mental health treatment as she had refused to sign consent forms for release of her information. L.S. had maintained her SSI income, but she had some difficulty establishing a permanent residence as she moved in with different relatives, lost housing in one program due to a suicide attempt, and lost an apartment due to a fire that was not her fault. In addition, L.S. had not successfully completed parenting classes and had not demonstrated anything she learned from the classes during visits with L.R.S. Both CASA and Dr. Bobby Stephenson, the psychologist who evaluated L.S., recommended termination of parental rights.

On May 22, 2003, one year after L.R.S. had been taken into custody, DSS filed a petition for termination of parental rights under La. Ch. C. art. 1015(5). The termination proceedings took place on August 27, 2003, LNovember 15, 2003, and November 17, 2003. The court denied termination of L.S.’s parental rights in an oral ruling on November 19, 2003. The court’s reasons were set forth in a written judgment signed on February 9, 2004, as follows:

These records indicated some of her admissions for psychiatric treatment were voluntary in nature, as she felt paranoid and was not taking her medicines. Then, with the most recent admission, on July 24, 2003, a Physician’s Emergency Certifícate was issued, with some violence on her part and unwillingness to seek help. A five (5) day stay then ensued, with a diagnosis on Axis 1 of Major Depression. Then, she seemed much improved. Both Drs. Stephenson, PhD, and Dr. Agarwal, MD, expressed concern about her ability to care for a child at this time.
The Case Plans were reviewed, including her compliance and cooperation with DSS, along with her progress. Her major problem has been mental instability. While there has not been 100% compliance, (L.S.) has been moving in that direction. She recognizes and has sought help on her own at times. Since she seeks help, she should not be punished. Her cooperation with DSS case plans include obtaining SSI, a place to live and is now working part-time as part of her treatment plan with Harmony House, a day treatment program for disabled persons.
Thus, the Court finds she has made significant measurable progress. Looking at her history, she had numerous hospitalizations in 2001 and 2002, but only three (3) thus far in 2003. However, both doctors (supra) expressed concern and reservations with her present ability to care for a child. The next area to examine is the “reasonable expectation” of change in the “foreseeable future,” and again both doctors said they needed the mother ... to be free from hospitalizations for one to two (1 to 2) years. This court cites In re: Ardoin, 667 So.2d 1144 (La.App. 3d Cir.1995)[sic] where “reasonable foreseeable future” was found by the Court to be a number of years in the foreseeable future.

The court ordered more frequent visits between L.S. and L.R.S. and ordered that the goal be changed to reunification. This appeal by DSS followed.

| .DISCUSSION

Applicable Law

The state’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the state seeks the permanent severance of that relationship in an "involuntary termination proceeding: The fundamental purpose of such a proceeding is to provide the greatest possible protection to a child whose parents are unable or unwilling to provide adequate rearing and care for his physical, emotional, and mental health needs. To this end, the proceeding provides an expeditious judicial process for termination of parental rights in order to achieve permanency and stability for the child. State in the Interest of S.M.W., 2000-3277 (La.2/21/01), 781 So.2d 1223; State in the Interest of J.A., 1999-2905 (La.1/12/00), 752 So.2d 806.

The court in an involuntary termination proceeding must balance the interests of the child and the parents. While the parents have a natural, fundamental liberty interest in the continuing companionship, care, custody, and management of their children, the child has a profound interest, often at odds with the interests of the parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental. care; In, balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parents. State in the Interest of J.A., 752 So.2d at 810-811 (citations omitted.)

In addition, the passage of the Adoption and Safe Families Act (ASFA), 42 U.S.C. § 601, et seq., by Congress in 1997, and the legislature’s amendment of several provisions of Louisiana Children’s Code tilted the delicate balance between the competing interests of the parents and child in the child’s favor. State in the Interest of S.N.W. v. Mitchell, 2001-2128 (La.11/28/01), 800 So.2d 809. As stated in La. Ch. C. art. 1001, Comments—1999(b), “ASFA requires states to articulate the principle that ensuring a child’s health and safety is the paramount concern in departmental" and judicial decisionmaking.” As such, the primary concern of the courts and the state is to secure thé best interests of the child, including termination of parental rights if justifiable grounds exist and are proven. State in the Interest of S.N.W., supra; State in the Interest of S.M.W., supra.

DSS sought termination of L.S.’s parental rights under the grounds set forth in La. Ch. C. art. 1015(5) as follows:

(5)Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The state bears the burden of proving the grounds for termination by clear and convincing evidence. La. Ch. C. art: 1035(A). Even when this evidentiary burden is met, a court should not terminate parental rights unless termination is found to be in the child’s best interest. State in the Interest of J.M., J.P.M. and M.M., 2002-2089 (La.1/28/03), 837 So.2d 1247.

Standard of Review

The manifest error standard of review applies to a trial court’s findings as to whether parental rights should be terminated. State in the Interest of K.G. and T.G., 2002-2886, 2002-2892 (La.3/18/03), 841 So.2d 759. A court of appeal may not set aside a trial court’s factual findings in the absence of manifest error or unless such findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, where one or more legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court conducts its own independent de novo review of the record. Evans v. Lungrin, 1997-0541 (La.2/6/98), 708 So.2d 731. Legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial, that is when they materially affect the outcome and deprive a party of substantial rights. Id.

DSS argues that the trial court erred in applying the standard of “foreseeable future” previously used in La. Ch. C. art. 1015(5), rather than “near future,” in determining whether there was a reasonable expectation of significant improvement in L.S.’s condition or conduct and in concluding that the “reasonable foreseeable future” is “a number of years in the foreseeable future.” In its oral ruling, the trial court found a lack of clear and convincing evidence that “there’s no foreseeable future where she [L.S.] will not be able to re ... [sic] take care of her child.”

| RStatutory interpretation is a function of the judicial branch of government. Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184. However, the fundamental consideration in statutory interpretation is ascertaining the legislative intent through legislative history and related legislation. Id. “Where a new statute is worded differently from the preceding statute, the legislature is presumed to have intended to change the law.” State in the Interest of DM., 2003-2754 (La.1/30/04), 865 So.2d 45, 46, citing Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 888.

Acts 1997, No. 256 rewrote La. Ch. C. art. 1015(5). As explained in Comments 1997(e), former Articles 1015(4) and (5) were the sources for the new provision. These two former provisions, Article 1015(4)(c) and (5)(b), required proof of “no reasonable expectation of his reformation inthe foreseeable future.” (Emphasis added.) As amended, La. Ch. C. art. 1015(5) now requires proof of “no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future.... ” (Emphasis added.) In amending La. Ch. C. art. 1015(5), the legislature changed the “foreseeable future” standard to that of “near future” for assessing the reasonable expectation of significant improvement by a parent whose rights are subject to termination. Amendments by Acts 1997, No. 256 and Acts 1999, No. 449 also added the component requiring consideration of the “child’s age and his need for a safe, stable, and permanent home” in assessing the reasonable expectation of significant improvement by the parent in the near future. La. Ch. C. art. 1015(5).

1 pAlthough the legislative history of Acts 1997 does not lend much guidance as to the legislative intent behind the amendments to La. Ch. C. art. 1015(5), the change from “foreseeable future” to “near future” is discussed in the Louisiana Children’s Code Handbook as follows:

(c) Reasonable expectation of significant improvement in the parent’s condition or conduct in the near future: A' deliberate and significant shift in public policy is apparent when comparing the current language with that of the predecessor statute which required a finding that parental reformation was unlikely in the “foreseeable future.” See former Arts. 1015(3)(b), 1015(4)(c), and 1015(5)(b). “Foreseeability” is quite expansive and could warrant a denial of termination in cases such as, a heroin addict who was beginning treatment but whose addiction and impairment could stretch on for five, six, or even ten years. The more limiting term, “near future”, is now used and that calculation is to be taken from the child’s perspective of time. Three years to an adult is a relatively brief span of time; three years to a three-year-old is an entire life or half a lifetime after the lapse of three additional years.... This principle is in accord with jurisprudence recognizing the permanent harm that can result from lengthy delays in decisionmaking before a permanent, stable home is achieved for the child.

(Citations omitted.) McGough and Triche, Louisiana Children’s Code Handbook, 2001 Authors’ Notes on Art. 1015(5)(c), p. 486 (Thomson West, 2004 Ed.).

When La. Ch. C. art. 1015(5) is asserted as the grounds for termination, one year has already elapsed since removal of the child from his parents’ custody by court order. The parents have had this same period of time to work on achieving the goals of the case plan and improving the condition or conduct that led to removal of the child from their custody. The distinction drawn by the authors of the Handbook between the expansiveness of what may occur in the “foreseeable future” and the limited time period suggested by the “near future” insures that the child will |innot be left to linger in foster care or state custody indefinitely. The distinction serves the paramount consideration in termination proceedings — the best interests of the child — by requiring courts to assess the likelihood of improvement in the parent’s condition or conduct in a time frame that places a premium on securing permanency, stability, and safety for the child. We recognize that the decisions in a termination proceeding are factually intensive and tailored to the individual circumstances of each case. As such, a bright-line rule defining “near future” is not realistic. However, as a general principle, waiting a “number of years” in the future for parents to improve the conditions or conduct that led to removal of their child from their custody does not serve the best interests of the child, particularly the need to establish a safe, secure, and permanent home. Assessment of whether there is a reasonable expectation of significant improvement in the parent’s condition in the near future should be made in light of the purposes stated in La. Ch. C. art. 1001, particularly that the “proceedings shall be conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanency for the children.”

We find it was legal error for the trial court to assess the reasonable expectation of improvement in L.S.’s condition or conduct in terms of the foreseeable future standard. This error skewed the factual findings and materially affected the outcome of the proceedings. For these reasons, de novo review of the record is necessary to determine whether DSS met the burden of proving grounds for termination by clear and convincing evidence.

| nDe Novo Review

Lori Traweek, an OCS child welfare supervisor who served as L.S.’s case manager since May 2002, and who participated in the family team conferences and in formulating the case plan for L.S., testified about L.S.’s compliance with the case plan. While L.S. succeeded in maintaining her SSI income, she had less success in obtaining a permanent home. L.S. lived with different relatives and then lost housing because of a suicide attempt. Traweek could not conclude that L.S.’s home was free from violence due to her problems with anger and mental instability. Addressing L.S.’s cooperation with OCS, Traweek stated that L.S. was not always forthcoming about her hospitalizations and had refused to sign waivers for release of medical information, which were necessary to allow OCS to assess L.S.’s progress. In fact, Traweek pointed to L.S.’s mental instability, which manifested itself in her noncompliance with medication and frequent hospitalizations due to self-mutilation and suicide attempts, as the main reason for seeking termination. Traweek testified that mental health treatment was a key component of the case plan. She opined that the 10 hospitalizations that had occurred since L.R.S. was taken into custody established the lack of improvement-in L.S.’s mental instability.

Traweek also believed that L.S. had not made progress in her parenting skills. Initially, L.S. was allowed weekly visits with her daughter, but once the goal changed to termination, the visits were decreased to twice a month. Traweek observed at least 20 visits. She observed that L.S. had difficulty comforting L.R.S. when she cried. The foster mother would 1! ¿model behavior for L.S. to follow; however, L.S. was not always successful in implementing the behaviors and would become frustrated when the baby would not cooperate. L.S. brought gifts for the baby- and would play with her. However, there was not much verbal interaction by L.S. with the baby. Tráweek expressed concern about L.S.’s ability to remain calm and to provide L.R.S. with parenting at different developmental stages. Though she admitted that there had been some progress on L.S.’s part, Traweek cautioned that things had not progressed to the point of L.S. interacting well with her child on a consistent basis. Traweek revealed that L.S. generally had a good relationship with the foster mother but that L.S. had threatened to kill.all those involved with L.R.S. during a disagreement in January 2003.

Service providers who worked with L.S. on her parenting skills also testified. Jacqueline Garrison began working with L.S. in July 2002 at Family Matters on a weekly basis to address two areas — counseling and parenting skills. Counseling was not successful. L.S. continued to inflict harm on herself as evidenced by hospitalizations in September 2002, December 2002, and January 2003. Garrison observed 8 to 10 visits by L.S. with L.R.S. and concluded that L.S. did not show any improvement in her parenting ability. She noted that L.S. did not seem to understand that the baby needed to be held and given attention; rather, L.S. seemed to .feel that the foster mother was spoiling L.R.S. Noting the suicide attempts made by L.S., Garrison believed that the pressure of a child in the home would only add to L.S.’s problems and that L.S. would not be able to provide a safe environment for a child. Garrison closed L.S.’s case on January 29, 2003, I Tsfor lack of progress. She testified that L.S. was becoming dependent on her and was not really trying to address her problems.

Kim Barkley of Volunteers of America testified that L.S. voluntarily sought parenting classes in May 2003. She testified that L.S. made a sincere effort to learn and that she was able to answer questions about the class. Barkley observed two visits and believed L.S. acted appropriately. However, Barkley testified that she would need more than the visits she observed' to say whether L.S. could implement everything covered in class.

L.S. received services through the Monroe Area Guidance Center, a psycho-social rehabilitation agency for persons with serious mental illnesses. Billie Berringer, a clinical manager, testified that L.S. had been regularly receiving services since July 2002, and that she attends Harmony House, a day hospital, on an almost daily basis. Berringer believed there was some improvement during L.S.’s participation at Harmony House as L.S. had fewer episodes of acting out. Patsy Stegall, a counselor at Harmony House, had recently been assigned to L.S.’s case. Although Stegall testified that there had been some improvement in L.S., she conceded that she had not been working with L.S. long enough to say whether L.S. could parent on a daily basis. Nancy Pruitt, an associate clinical manager, worked with L.S. since April 1, 2003, and had daily contact with her. Pruitt noted that L.S. had been in her current residence for about four months, that she was working part-time in the Support Employment Assistance Program at Harmony House, and that her goal was to obtain a GED. Pruitt also testified that L.S. is sometimes in denial about 114her problems and that this affects her receptiveness to services. At the time of the hearing, L.S. had been taking her medication regularly for about a month or month and a half, but there had been periods of non-compliance when incidents had occurred. According to Pruitt, L.S. is making progress but she still experiences “rough days” where she gets angry and frustrated. Pruitt also testified that since April 2003, L.S. had expressed suicidal ideation more than 10 times. Pruitt cited stress tolerance as a real problem for L.S. and expressed concern that having a child in the home would be hard on L.S. Pruitt testified that L.S. could not adequately care for L.R.S. if placed in her home at this time. Most importantly, Pruitt could not say whether L.S. would ever progress to the point of being able to care for her child.

L.S. was evaluated on July 26, 2002, and April 4, 2003, by Dr. Bobby Stephenson, a psychologist. Stephenson testified that L.S. made minimal effort during the first evaluation at which she appeared angry, frustrated, and resentful of OCS’s involvement. However, L.S. put forth more effort on the second evaluation. Stephenson cited anger as L.S.’s primary problem. He noted a history of abusive relationships, anger, and depression. His diagnosis included mood disorder and major depression with possible bipolar trends. Stephenson explained that episodes of suicidal ideation and self-mutilation indicate the anger and frustration felt by L.S. He attributed some of her anger to past trauma and some to her temperament. Although he noted that L.S. has hurt only herself in - the past, he expressed some concern about how her anger and impulsiveness might affect a child in her [1Bcare. He noted that although L.S. had undergone a lot of counseling, she had not been successful in making her anger go away. Stephenson had “significant reservations” about whether L.S. could care for a child. He would need to see at least a year of stability without hospitalizations or violent episodes before he would feel it was safe to have a child in her care. He noted the problems that L.S. had in complying with her medication regimen and expressed concern that any problem, even stress from a child in her care, might set her off on the same pattern of instability. While noting that L.S. might improve over time with continued counseling and medication, Stephenson opined that waiting for this improvement would not serve the child’s best interest, which he stated to be adoption. He believed that it was time to move on and that the child should not continue waiting for L.S. to achieve stability.

Dr. Rita Agarwal, a psychiatrist, began treating L.S. in 2000 for recurrent' self-mutilation and overdoses. Her diagnosis of L.S. was borderline personality disorder and depressive disorder. She explained that this causes L.S. to be unstable, irritable, and easily angered. Agarwal testified that she expected no change in L.S.’s diagnosis in the near future and could ■ not predict how much improvement L.S. might make with continued treatment. Her prognosis for improvement was very guarded. Though she testified that L.S. was motivated by the desire to get her child back and seemed to be doing -better with fewer instances of self-mutilation and fewer hospitalizations during 2003, she cautioned that L.S. could immediately -fall apart at any setback. Agarwal explained that L.S.’s intense 11fianger, dysphoria, and difficulty relating to others would make it difficult for her to care for her child. When asked about the possibility of L.S. being able to care for her child in the future, Agarwal answered “maybe” with supervision. One to two years of stability without suicide attempts or cutting herself would be necessary for Agarwal to consider that L.S. might be doing better.

Medical records introduced into evidence established that L.S. had been hospitalized 10 times since L.R.S. was removed from her custody. Her most recent admission was at Glenwood .Behavioral Health Unit in July 2003. Records show that she was paranoid and threatening to harm herself and others. Her conduct required the use of restraints during part of her stay in the hospital. She was hospitalized in April 2003 at E.A. Conway Medical Center when she threatened to overdose and cut her arm, which required 18 staples. She was also hospitalized in January 2003 due to her anger and threats to harm the persons caring for L.R.S. The records on these and L.S.’s other hospitalizations demonstrate the seriousness of her condition and the difficulties she has dealing with her anger and handling stress in her life.

• L.S.’s testimony showed her desire to regain custody of her child and the steps she has taken to comply with the case plan. Her testimony also showed that she has some denial about the seriousness of her mental illness and the impact it has on her life and her ability to regain custody of L.R.S. Notwithstanding her lengthy history of mental illness, L.S. attributed all the problems she has had since removal of L.R.S. from her custody to stress |17from the ongoing court proceedings. She denied having any need for counseling and described herself as straight and happy.

Mental illness alone is insufficient grounds to warrant termination of parental rights. However, the parent’s mental state as it relates to the ability to care for the child is an important factor to be considered in a termination proceeding. State in the Interest of J.A., supra; State in the Interest of 35,588 (La.App.2d Cir.10/31/01), 799 So.2d 1178. Under La. Ch. C. art. 1036(C)(6) and (7), proof of lack of parental compliance with a case plan is evidenced by the “parent’s lack of substantial improvement in redressing the problems preventing reunification” and the “persistence of conditions that led to removal or similar potentially harmful conditions.” Under La. Ch. C. art. 1036(D), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be shown by the following:.

(1) Any physical or mental illness ... that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or ... an established pattern of behavior. * * *
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based on expert opinion or .... an established pattern of behavior.

L.S. should be applauded for positive steps she has taken to maintain an income, establish a residence, and work part-time. Her love for L.R.S. was demonstrated by her regular attendance at visits. However, we do not find that there has been substantial compliance with the case plan. L.S.’s |ismental instability, the reason for removal of L.R.S. from her custody, remains a persistent problem affecting her ability to function as a parent and even to function on her own. Her history is replete with instances of hospitalizations, suicidal ideation, self-mutilation, and disturbances requiring police intervention, all of which evidence the persistent mental illness that has not shown any signs of real improvement. The numerous hospitalizations and need for almost daily supervision at Harmony House demonstrate the high level of care that her illness requires.

L.S.’s condition impairs her ability to handle stress, control her anger, and relate to others. An additional concern expressed at trial was the effect on L.S. of the added stress of caring for a child on a daily basis. None of the experts who testified believed L.S. to be capable of parenting her child, and none of them testified that she will be likely to do so in the near future. Although Dr. Stephenson and Dr. Agarwal testified that they might find L.S.’s condition improved after one to two years of stability with no hospitalizations, suicide attempts, or angry outbursts, neither doctor testified that this outcome is likely to be achieved. The guarded prognosis for improvement in L.S.’s condition sometime in the future is not a sufficient basis to find a reasonable expectation of significant improvement in L.S.’s condition or conduct in the near future, considering L.R.S.’s young age and need for a safe, stable, and permanent home.

From our de novo review of the entire record, we find that DSS proved the grounds for termination under La. Ch. C. art. 1015(5) by clear and convincing evidence. Had we reviewed the record under the manifest 119error standard, our conclusion would have been the same. The trial court’s findings are not supported by the record. The record establishes L.S.’s lack of substantial compliance with the case plan and the lack of a reasonable expectation of significant improvement in her condition in the near future.

Finally, we find termination of parental rights to be in L.R.S.’s best interest. L.R.S. has been with her foster mother since shortly after her birth. The record establishes the strong bond that has developed between L.R.S. and her foster mother who desires to adopt her. Dr. Stephenson testified that termination of parental rights and adoption would be in L.R.S.’s best interest and that the child should not wait any longer for L.S. to achieve stability. We agree that L.R.S.’s need for permanency, stability, and safety will not be met by prolonging her time in foster care while awaiting the possibility of improvement in L.S.’s condition. For these reasons, termination of parental rights is appropriate.

CONCLUSION

For the reasons stated in this opinion, we hereby reverse the judgment of the trial court and render judgment terminating the parental rights of L.S. Based on the facts and evidence of record, we conclude that DSS has satisfied its burden under La. Ch. C. art. 1015(5) and that termination of parental rights is in the best interest of the minor child, L.R.S. This matter is remanded to the Monroe City Court for further expedited proceedings consistent with this opinion.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

      . Although OCS believed the case met the requirements for immediate pursuit of termination of L.S.’s parental rights since her rights to her first child had been terminated previously, see La. Ch. C. art. 1015(3)(k), they determined during the family team conference to first work toward the goal of family reunification.

      . The father of L.R.S. stipulated to the termination of his parental rights during the proceedings.


author: 11 BROWN, C.J.

text:
    George HOOKER, Jr., Plaintiff-Appellant v. WAL-MART STORES, INC., Defendant-Appellee.
    No. 38,641-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2004.
    C. Daniel Street, for Appellant.
    Cynthia T. Batiste, Louisiana Department of Labor, Baton Rouge, for Appellee.
    Before BROWN, PEATROSS, and MOORE, JJ.
   11 BROWN, C.J.

This is an appeal from a district court judgment which affirmed a decision of the Louisiana Department of Labor Board of Review denying unemployment compensation benefits to claimant, George Hooker, Jr., based upon its finding that claimant voluntarily left his employment. Finding legal error, we reverse and render.

Procedural Background

George Hooker, Jr., filed a claim for unemployment benefits with the Louisiana Department of Labor on October-18, 2002, alleging that he had been discharged from his employment with- Wal-Mart. On November 12, 2002, the Dept, of Labor initially determined that Hooker was entitled to benefits. Wal-Mart appealed, contending that Hooker voluntarily quit after refusing a suitable offer of work. The appeal was heard by an administrative law judge on December 24, 2002, at which time documentary evidence was submitted and testimony was taken from claimant and two Wal-Mart managers, Derek Blue and Mary Edmonson.

On January 3, 2003, the ALJ issued its decision finding that Hooker was not entitled to benefits pursuant to La. R.S. 23:1601(1). On January 10, 2003, Hooker filed an appeal with the Board of Review. On February 7, 2003, the Board of Review affirmed the ALJ’s decision adopting its findings of fact and conclusions of law. Claimant then filed a petition for judicial review on February 18, 2003. After reviewing the administrative record, the district court affirmed the decision of the Board in a judgment signed on September 25, 2003. This appeal followed.

| ¿Facts

Derek Blue, co-manager of the Wal-Mart in Monroe, testified that Hooker worked for Wal-Mart on a full-time basis as a stocker. While Hooker was off work due to an on-the-job accident and was receiving workers’ compensation benefits, Wal-Mart unilaterally spoke with Hooker’s treating physician who indicated that Hooker could-return to light duty as of September 25, 2002. Pursuant to a call from Blue, Hooker came to the store on that date and was told that he would be working as a greeter. According to Blue, Hooker got belligerent and related that his doctor had told him that he was not released to return to work until October 7, 2002, some 12 days later. Hooker referred to a release he was issued by his doctor on his last visit, and informed Blue that it was his right to stay off work until October 7 and that he would return at that time.

Later that day, Blue contacted the insurance adjuster, who initiated a conference call between Blue and Hooker. This conversation was taped. While speaking to the adjuster, Hooker agreed to return to work on the following day-, September 26; however, he did not show up for work, nor did he call to say he would not be there. Someone from Wal-Mart made two unsuccessful attempts to call Hooker. Citing Wal-Mart’s policy, that three days of no show/no call warrants termination, Blue issued Hooker a letter ^dismissing him from employment. When Hooker came in to get his last check, he did not give a reason for his absence.

Hooker testified that he got hurt whilé unloading a truck at work. He told his supervisor of his accident, sought medical treatment, and began drawing workers’ compensation benefits. Hooker informed the ALJ that he never saw any report that released him tó return to work as of September 25, 2002, but learned of this alleged release for the first time when Blue called him. Hooker told Blue that he was not released until October 7, 2002, which was-the date he planned to return to work.

Hooker stated that it was then that a lady from the insurance company called him and he told her he would go back to work the next day. He changed his mind, however, because he didn’t have any income and stood to lose his apartment. Specifically, he was depending on his workers’ compensation benefits to- pay his rent.

Discussion

The Board of Review found that Hooker voluntarily left his employment without just cause.' According to Hooker, the evidence shows that he was off work receiving workers’ compensation benefits' and that he did not voluntarily leave his employment. He argues that the evidence shows that his doctor recommended that he remain off work until October 7, 2002, and, if this recommendation was amended, it was only after Wal-Mart inappropriately contacted his physician in violation of claimant’s rights under the workers’ compensation law. It is Hooker’s position that the Board of Review erred in concluding that he should be disqualified -under 14La. R.S. 23:1601(1), -which provides in pertinent part that an individual shall be disqualified for benefits if the administrator finds that he has left his employment without good cause attributable to a change made to the employment by the employer.-

Courts may not disturb factual findings of the • Board of Review when questions of weight and credibility are involved and when the conclusions are supported by sufficient evidence. Marchand v. Forster, 37,222 (La.App.2d Cir.06/25/03), 850 So.2d 941. Judicial review of the findings of the Board of Review does not permit weighing of the evidence, drawing of inferences, reevaluating of evidence or substituting views of the court for that of the board as to the correctness of the facts pres'ented. Marchand, supra; Lewis v. Administrator, 540 So.2d 491 (La.App. 1st Cir.1989). Therefore, it is for us to determine whether, the facts are supported by competent evidence and-whether the facts, as a. matter of law, justify the Board of Review’s decision. Banks v. Administrator, 393 So.2d 696 (La.1981); Marchand, supra; Murdock v. Felix’s Restaurant, 99-0053 (La.App. 4th Cir.06/02/99), 743 So.2d 716. '

It is undisputed that Hooker was not working but was receiving workers’ compensation benefits. The evidence presented in this case shows that Wal-Mart ordered Hooker back to work after Wal-Mart’s unilateral conversation with Hooker’s doctor. The law concerning such a situation is set forth in La. R.S. 23:1127, whose purpose and requirements were stated by this court as follows:

' One purpose of this statute is to avoid the misunderstandings and bruised feelings' which the employee might experience |fifrom an informal discussion of his medical condition by the employer or case manager. Instead, the case manager is first required to document the communication received from the employee’s doctor regarding the employee’s reasonable return to employment. When such written documentation is furnished to both the employee and the doctor, the employee may privately review the report and discuss and verify its content with his health care provider.

Hooker v. Wal-Mart Stores, 870 So.2d at 1136-37.

In the instant case, the ALJ found that Hooker left his employment without good cause, La. R.S. 23:1601(1), and was therefore not entitled to unemployment compensation. The evidence presented to the ALJ established that Wal-Mart neither furnished Hooker with a report of the diagnosis that it unilaterally obtained from claimant’s physician, nor did Wal-Mart discuss or verify its content with either Hooker or Dr. Bailey as required by La. R.S. 23:1127. Hooker’s absence from his employment was clearly for good cause attributable to a substantial change to his employment made by Wal-Mart. Under our workers’ compensation law, an injured worker cannot be forced to return to work prior to a release from his treating physician. Hooker had every right to rely on the release issued to him by Dr. Bailey during the course of his treatment, rather than being strong-armed into returning to work two weeks prior to that date. The amended release date was inappropriately obtained by his employer and was not properly verified or discussed with Hooker. Therefore, we find that Hooker did not voluntarily leave his employment, but instead was terminated for asserting his rights under the workers’ compensation law. The ALJ committed legal error in concluding otherwise.

| fiConclusion

For the reasons set forth above, the judgment of the district court affirming the Board of Review’s disqualification of claimant from receiving unemployment benefits is reversed.

IT IS ORDERED, ADJUDGED, AND DECREED that the Board of Review issue an order directing payment to claimant, George Hooker, Jr., of the unemployment compensation benefits to which he is entitled. Costs of this appeal are assessed to defendant, Wal-Mart Stores, Inc.

      . The facts surrounding Hooker’s unemployment benefits claim also serve as the basis for two other lawsuits which have been reviewed by this court under its appellate jurisdiction. See Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App.2d Cir.04/07/04), 870 So.2d 1131; Hooker v. Wal-Mart Stores, Inc., 38,244 (La. App.2d Cir.03/03/04), 867 So.2d 869. The evidence presented in the instant case is much less detailed than in the previous cases, probably because claimant was represented by counsel in those two" suits and appeared in proper person in this matter.


author: h HARRISON, J. (Pro Tempore).

text:
    Victoria TRON, Plaintiff-Appellee v. LITTLE ITALIANO, INC., Defendant-Appellant Victoria Tron, Plaintiff-Appellee v. Century Tel Center, DefendantAppellee Victoria Tron, Plaintiff-Appellee v. Little Italiano, Inc., Defendant-Appellant.
    Nos. 38,556-WCA, 38,557-WCA, 38,558-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2004.

      Lewis O. Lauve, Jr., Alexandria, for Appellants.
    Robert L. Beck, Jr., Alexandria, for Ap-pellee, Victoria Tron.
    Lorraine A. Dupont, Baton Rouge, for Appellees, Century Tel Center and Zurich American Insurance Company.
    •Before CARAWAY, DREW and HARRISON (Pro Tempore), JJ.
   h HARRISON, J. (Pro Tempore).

The defendants, Little Italiano, Inc. (“Little Italiano”) and Louisiana Restaurant Association-Self Insurers Fund (“LRA”), appeal a judgment awarding the claimant, Victoria Tron, temporary total disability (TTD) benefits of $268.67 from February 2002 and continuing. The workers’ compensation judge (WCJ) found that the employers, Little Italiano and Century Tel Center (“CTC”), were liable in solido, for claimant’s TTD benefits and necessary medical treatment. The WCJ assessed the employers with penalties and attorney fees, finding that they had failed to reasonably controvert the claimant’s indemnity and medical benefits claims. For the following reasons, we affirm.

FACTS

On March 9, 1999, the claimant was injured while working as a waitress at Little Italiano, which was insured through LRA (also referred to collectively as “LRA”). An MRI of claimant’s cervical spine indicated mild disc bulging at the C4-5 and C5-6 levels. Claimant’s family doctor referred her to Dr. Anil Nanda, a neurosurgeon, for an evaluation. Conservative treatment failed and Dr. Nanda recommended surgery at the C5-6 level. LRA sent claimant to another neurosurgeon, Dr. Warren Long, for a second opinion. Dr. Long opined that surgery would be necessary at two levels.

In June 1999, Dr. Long performed fusion surgery at the C4-5 and C5-6 levels; Following surgery, claimant participated in physical therapy and continued to complain of neck pain. In December 1999, Dr. Long determined that claimant had reached maximum medical improvement and released her to return to work with the restriction that she not lift any object | ^weighing more than 26 pounds. The claimant became concerned by what she alleged was inappropriate behavior by Dr. Long and returned to Dr. Nanda for treatment.

In January 2000, claimant was seen by Dr. Nanda, who recommended a myelo-gram of the cervical spine and an EMG/ nerve conduction study. However, LRA denied approval for the diagnostic testing suggested by Dr. Nanda because he was not the authorized neurosurgeon at the time. In March 2000, LRA terminated claimant’s weekly indemnity benefits on the basis of Dr. Long’s prior opinion that she could return to work with a lifting restriction. On April 12, 2000, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC) seeking payment for the recommended diagnostic tests, additional medical treatment, weekly benefits, penalties and attorney fees.

In September 2000, claimant sought treatment at LSU Medical Center and obtained a cervical myelogram. The results showed the fusion at C4-6 with mild degenerative changes and a swollen nerve root at the C6-7 disc level. Subsequently, the OWC issued an order allowing the claimant to seek treatment with Dr. Nan-da. On October 13, 2000, claimant saw Dr. Nanda who reviewed the myelogram results and opined that further surgery was not necessary, but again recommended an EMG nerve conduction study. This was claimant’s last office visit with Dr. Nanda. In October 2000, claimant was hired by CTC as a concession and catering worker.

In January 2001, claimant sought treatment with Dr. Mark Wilson as her family physician and gave a history of prior neck surgery. On April 17, |32001, claimant telephoned Dr. Nanda’s office with a complaint of neck pain and headaches. Dr. Nanda recommended pain management and a neurology consult with Dr. Roger Kelley. In response, LRA sought a second opinion by Dr. Donald Smith regarding the need for such treatment. On November 5, 2001, Dr. Smith examined claimant, who stated that she was working and complained of neck pain after returning home at night. Dr. Smith agreed with the recommendation for a neurological evaluation, pain management and a nerve conduction study. As a result, LRA approved an evaluation by Dr. Kelley and authorized pain management treatment.

On December 6, 2001, while claimant was pushing a large frozen-drink machine, she felt severe pain in her neck with pain radiating into her. right arm. On December 9, 2001, claimant sought treatment at the Willis Knighton-Bossier emergency room. The nurse noted claimant’s complaint of neck pain related to “pushing a heavy cart at work.” On December 16, 2001, claimant reported the incident to CTC and completed an accident report. She continued working, but visited the hospital another time complaining of neck pain. On December 28, 2001, claimant was examined by Dr. Kelley, who agreed with the need for an EMG nerve conduction test and pain management. Claimant reported to Dr. Kelley the incident at work earlier in the month that increased her neck pain.

On January 31, 2002, claimant underwent an EMG nerve conduction study. The results showed denervation of the right arm and indicated a C7 radiculopathy with more acute findings on the right side. In February 2002, claimant resigned from CTC. The next month, she saw Dr. Kathleen Majors |4for pain management. Dr. Majors diagnosed claimant with neck and bilateral upper extremity pain following, cervical fusion and recommended physical therapy, epidural steroid' injections and counseling.

After receiving Dr. Kelley’s medical report noting claimant’s second work injury, LRA terminated all medical benefits to claimant on the basis that the accident at CTC was solely responsible for her disability. CTC also denied benefits, contending that claimant’s disability and medical treatment were related to her prior injury. LRA and CTC' designated Dr. Sandra Weitz, an anesthesiologist and pain management specialist, to evaluate claimant for a second opinion. Dr. Weitz opined that both work accidents combined were responsible for claimant’s disability and need for medical treatment. Despite Dr. Weitz’s opinion, both LRA and CTC continued to deny compensation benefits. In April 2002, claimant filed disputed claims against Little Italiano and CTC seeking wage benefits, medical treatment, penalties and attorney fees.

At the OWC hearing, the parties stipulated that claimant’s average weekly wage was $424.35 at Little Italiano and $402.80 at CTC. The WCJ found that claimant’s continuing problems from her first work injury were aggravated by the work accident at CTC". The WCJ determined, that each employer was liable in solido for weekly indemnity benefits and necessary medical treatment. The WCJ found that LRA and CT.C failed to reasonably controvert claimant’s claim for TTD and assessed each employer with $2,000 in penalties and $5,000 in attorney fees. The WCJ assessed separate penalties and attorney fees for the employers’ failure to pay medical | ¡¡benefits. Little Italiano and LRA appeal the judgment.

DISCUSSION

LRA filed, an exception of prescription in this court alleging that the claimant’s April 2002 claim for workers’ compensation benefits has prescribed because it was submitted more than two years after LRA’s last acknowledged indemnity payment in February 2000. Alternatively, LRA argues that the claim has prescribed because it was filed more than one year after claimant began working at CTC in October 2000, when indemnity benefits were not owed.

In case of personal injury at work, all claims for payments shall be barred unless within one year after the accident a formal claim has been filed with the office of workers’ compensation. Where such payments have been made, the limitation shall not take effect until the expiration of one year from the time of making the last payment, or three years from the last payment of supplemental earnings benefits. LSA-R.S. 23:1209(A).

In the present case, the record shows that in October 2001, LRA paid claimant the amount of $4,434.84, which reflected the payment of indemnity benefits in settlement of a dispute between the parties. In its brief, LRA asserts that prescription begins to run on the date of the last “acknowledged” payment of indemnity benefits or from the last month in which such benefits were allegedly owed. However, Section 1209(A) provides that where payments have been made in a case, the time limitation takes effect one year after “the time of making the last payment.” Thus, contrary to LRA’s assertion; the prescriptive period does not depend upon |fiwhen the employer acknowledged payment of indemnity benefits or upon the date when such payments were allegedly owed. Since LRA’s last payment of benefits was in October 2001, the April 2002 claim was timely filed. Consequently, LRA’s argument lacks merit and the exception of prescription shall be denied.

Solidary Liability of Successive Employers

In two assignments of error, LRA contends the WCJ erred in finding that LRA is solidarily liable for indemnity and medical benefits. LRA argues that CTC is solely liable for compensation benefits and medical expenses because claimant had recovered from her initial work injury when the December 2001 accident occurred.

When a combination of work-related accidents causes a disability, or where by virtue of a second accident a prior injury is aggravated causing disability, both the subsequent employer and the employer at the time of the first work-related accident are solidarily liable for compensation benefits and medical expenses. Hill v. Manpower-Collier Investments, 30,444 (La.App.2d Cir.4/8/98), 712 So.2d 560. Factual findings in workers’ compensation-cases are subject to the manifest' error standard of review. Atwood v. Ewing Timber, Inc., 34,045 (La.App.2d Cir.12/15/00), 774 So.2d 1140. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable in light of the record as a whole. Atwood v. Ewing, supra; Stobart v. State, 617 So.2d 880 (La.1993).

In the present case, the claimant testified that after her June 1999 |7neck surgery, she did well for a period of months before her pain returned. She described feeling persistent pain in the neck area radiating to her left shoulder and left arm. Claimant stated that she continued to experience neck and left shoulder pain while working at CTC. Claimant testified that in December 2001, she felt a shooting pain in her neck on the right side while moving a large drink machine into an elevator at work.

Claimant introduced into evidence the medical reports of her visits to several physicians and the results of diagnostic tests. In November 2002, claimant was examined by Dr. Weitz. In her report, Dr. Weitz noted that claimant’s September 2000 myelogram showed swelling of the C7 nerve roots bilaterally after her surgery. Dr. Weitz determined that the second work-related injury more probably than not caused the C7 radiculopathy shown on the January 2002 EMG nerve conduction study. Dr. Weitz opined that claimant never fully recovered from her first injury, which was primarily responsible for her disability, and that the accident at CTC caused a definite injury in the form of the right C7 radiculopathy and exacerbated her underlying condition. In her deposition, Dr. Weitz testified that after reviewing the medical records and a detailed description of claimant’s job at CTC, she had concluded that claimant had been working beyond her capabilities before her injury at CTC and that both accidents substantially contributed to claimant’s disability.

Dr. Majors opined in her deposition that claimant was unable to return to work or perform any type of gainful employment as of March 2002. Dr. Majors testified that claimant needed cervical epidural steroid [ sinj ections, pain counseling and medication before working again. In his deposition, Dr. Kelley opined that as of February 2002, claimant was in need of chronic pain management due to the combination of her chronic neck pain and the new incident in December 2001.

Based upon the medical evidence and testimony presented, we cannot say that the WCJ was clearly wrong in finding that claimant had not fully recovered from her. initial injury and that a combination of work-related accidents contributed to her disability. Thus, the WCJ correctly concluded that Little Italiano and CTC are solidarily liable for payment of TTD Benefits and medical expenses. The assignments of error lack merit.

Penalties and Attorney Fees

The defendant contends the WCJ erred in awarding claimant penalties and attorney fees. Defendant argues that such an award was not warranted because it had reasonably controverted the claim for compensation benefits.

The employer’s failure to provide payment of compensation or medical benefits owed shall result in the assessment of a penalty and reasonable attorney fees, unless the employer has reasonably controverted the claim. LSA-R.S. 23:1201(F); Baker v. Libbey Glass, Inc., 32,748 (La.App.2d Cir.5/10/00), 759 So.2d 1007. To reasonably controvert a claim, the employer must have sufficient factual or medical information to reasonably counter the evidence provided by claimant. Balsamo v. Jones, 28, 885 (La.App.2d Cir.12/11/96), 685 So.2d 1140.

Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of workers’ compensation benefits are penal 13in nature- and must be strictly construed. Davis v. Jones Baldwin Music Co., 27,545 (La.App.2d Cir.11/1/95), 662 So.2d 803. The WCJ’s decision concerning whether or not to assess statutory'penalties and attorney fees will not be disturbed absent an abuse of discretion. Balsamo v. Jones, supra.

In its brief, LRA contends that under LSA-R.S. 23:1201.2, penalties are not available for its decision to discontinue payments for claimant’s visits with Dr. Majors. However, the record demonstrates that the WCJ assessed penalties and attorney fees on the basis of LRA’s failure to provide payment for medical treatment recommended by Dr. Majors, including cervical epidural steroid injections, pain counseling and medication. Thus, since the conduct at issue did not involve discontinuance of medical benefits, Section 1201.2 is not applicable. LRA’s argument lacks merit.

LRA asserts that it possessed sufficient factual and medical information to reasonably controvert claimant’s evidence. LRA relied on the 1999 work release of Dr. Long, the lack of pain complaints by claimant in the records of Dr. Wilson, claimant’s failure to seek treatment with Dr. Nanda in 2001 and claimant’s ability to work in the year prior to the CTC incident. However, the record shows that LRA received the January 2002 EMG nerve conduction test results indicating objective findings of claimant’s chronic injury and the more acute right side radiculopathy. In addition, LRA was aware of the opinion of Dr. Majors that claimant was disabled and of the conclusion of Dr. Weitz that both of claimant’s injuries |1(lhad contributed to her disability.

Contrary to LRA’s assertion, the work release of Dr. Long and the medical records of Dr. Wilson do not contradict the subsequent objective indications of claimant’s injury or the opinions of Dr. Majors and Dr. Weitz. Claimant’s failuré to visit Dr. Nanda in 2001 is understandable, since he had informed claimant in October 2000 that because surgery was not necessary, there was really nothing else he could do for her. Additionally, even though claimant worked for CTC, she told Dr. Smith in November 2001 that she continued to experience persistent pain during that time.

In light of the medical test results and reports of Dr. Majors and Dr. Weitz available to LRA, we cannot say the WCJ was clearly wrong in finding that LRA failed to reasonably controvert claimant’s compensation and medical expense claim. Consequently, the WCJ did not abuse her discretion in assessing penalties and attorney fees for LRA’s refusal to pay indemnity and medical benefits. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the exception of prescription is denied and the judgment is affirmed. Costs of this appeal are assessed to the appellants, Little Italiano, Inc. and Louisiana Restaurant Association-Self Insurers Fund.

AFFIRMED.

      . We note that LSA-R.S. 23:1201.2 was repealed by Acts 2003, No. 1204 and re-designated as' LSA-R.S. 23:1201(1), effective Au~ gust 15, 2003. This change does not affect the result of our opinion.