author: I,SAUNDERS. J.

text:
    Mervin PRIMEAUX, Indiv. and Elizabeth Primeaux, Indiv. v. ST. PAUL FIRE & MARINE INS. CO. and Dr. Richard Laborde.
    No. 03-0466.
    Court of Appeal of, Louisiana, Third Circuit.
    Dec. 17, 2003.

      James R. Shelton, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee, St. Paul Fire & Marine Ins. Co., Dr. Richard Laborde.
    Todd A. Townsley, Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellant, Mervin Primeaux, Elizabeth Primeaux.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   I,SAUNDERS. J.

Plaintiff appeals the judgment of the trial court finding that the partial paralysis of his phrenic nerve was not caused by malpractice on the part of Defendant, Dr. Richard Laborde. For the reasons stated below, we affirm.

FACTS

On September 3,1997, Mervin Primeaux was admitted to Lake Charles Memorial Hospital for total left shoulder replacement surgery by Dr. David Drez, orthopedic surgeon. This is a particularly painful procedure which generally requires large amounts of post-operative pain control narcotics. To reduce the amount of pain medication needed after surgery, and to reduce the level of pain during and after the procedure, Dr. Laborde, an anesthesiologist, performed an “interscalene block” on Mr. Primeaux prior to the shoulder surgery.

An interscalene block is an anesthetic procedure involving the nerves of the neck and shoulder region. It is used to anesthetize the upper arm and shoulder region during shoulder surgeries. The procedure involves inserting a large needle with an electrical current running through the tip of the needle. The procedure is a “blind” procedure because the doctor is unable to see where the needle is positioned during the procedure. He must instead rely on external signals created by stimulating the nerves and adjoining muscles with the electrical current from the inserted needle. The current will cause an externally dis-cernable twitch or spasm for various muscle groups, allowing the anesthesiologist to determine proper needle placement for injection of the anesthetic. In Mr. Pri-meaux’s case the procedure was to anesthetize the brachial plexus. The brachial plexus is in close proximity to the phrenic nprve, which controls the diaphragm.

Prior to undergoing the shoulder surgery, Mr. Primeaux underwent a prejoper-ative2 exam by his internal medicine physician, Dr. James T. Shepherd. An x-ray was taken of Mr. Primeaux, which indicated that there was no paralyzation of his diaphragm. After the procedure, while still in the hospital, there were several notations made in Mr. Primeaux’s chart stating, “No SOB [shortness of breath] noted.” Three days after Mr. Primeaux’s discharge from Lake Charles Memorial Hospital he had a follow-up appointment with Dr. Drez. At that appointment Mr. Primeaux still had no complaints of trouble breathing or shortness of breath.

The first time Mr. Primeaux reported any complaint of shortness of breath to Dr. Drez was September 15, 1997, twelve days after his surgery and the interscalene block. At that time Dr. Drez felt Mr. Primeaux’s shortness of breath may be due to a reaction to the medication Mr. Primeaux was taking. In a later office visit with Dr. Drez, Mr. Primeaux complained of chest pain. Dr. Drez referred Mr. Primeaux to Dr. Shepherd at the Emergency Room at Park Place Medical Center in Port Arthur, Texas. After performing x-rays and various tests on Mr. Primeaux, Dr. Shepherd diagnosed him with paralysis of the left hemi-diaphragm, caused by damage to the phrenic nerve.

This matter was presented to a Medical Review Panel and their opinion was rendered on July 27, 1999. In their opinion the panel stated they found a probable causal relationship between the periopera-tive events of September 3, 1997, and Mr. Primeaux’s injuries. They also stated, however, that the medical records do not suggest that there is anything Dr. Laborde could have done differently. Their conclusion was there was no finding that Dr. Laborde failed to comply with the appropriate standard of care.

This matter proceeded to trial. After a three-day trial on the merits, a jury J^eturned a verdict in favor of the defendant, Dr. Laborde, finding that he was not liable for Mr. Primeaux’s injuries. The claims against the defendant were dismissed with prejudice.

Plaintiffs appeal the judgment of the trial court and assert the following assignments of error:

1) The jury committed manifest error in failing to find that the most likely cause of the injury was the negligence of Dr. Laborde.
2) The jury erred in not finding that Dr. Laborde breached the standard of care by causing this phrenic nerve injury.
3) The jury erred by not properly giving the treating physician’s testimony more weight than a non-treating physician acting as an expert for the defendant.

STANDARD OF REVIEW

We begin by noting the well established rules of appellate review of jury and trial court decisions.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989) (citations omitted).

[T]he appellate court’s disagreement with the trial court, alone, is not grounds for substituting its judgment for that of the trier of fact. Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1983). If the trial court or jury’s findings are reasonable in light of the record previewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Ro-sell, supra. Where there are two per-raissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

DISCUSSION

In medical malpractice cases the plaintiffs burden and the physician’s standard of care are set out in La.R.S. 9:2794, which states in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician, dentist, optometrist, or chiropractic physician. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s, dentist’s, optometrist’s, or chiropractic physician’s negligence.

In Fusilier v. Dauterive, 00-151, p. 7 (La.7/14/00), 764 So.2d 74, 79, the | ^Louisiana Supreme Court discussed the two-prong burden of proof in medical malpractice cases, as established by La.R.S. 9:2794, stating:

In a medical malpractice action, the plaintiff has the burden of proving, by a preponderance of the evidence, (1) that the doctor’s treatment fell below the standard of care expected of a physician in his medical specialty; and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained. [Gordon v. La. State Univ. Bd. of Supervisors, 27, 966 (La.App. 2 Cir. 3/1/96), 669 So.2d 736; unit denied, 96-1038 (La.5/31/96), 674 So.2d 263] (citing White v. McCool, 395 So.2d 774 (La.1981)).

In Fusilier, the supreme court stated that “[a] physician is not required to exercise the highest degree of care possible; rather, his duty is to exercise the degree of skill ordinarily exercised by his professional peers under similar circumstances.” Fusilier, 764 So.2d at 79.

The plaintiff provided testimony by Dr. Shepherd, a specialist in the field of internal medicine and Mr. Primeaux’s physician. Dr. Shepherd testified that, in his opinion, Dr. Laborde’s performance of the interscalene block on Mr. Primeaux fell below the appropriate standard of care and constitutes medical malpractice. Dr. Shepherd testified that he had seen inter-scalene blocks being performed, but .had not ever performed one himself. On cross-examination he also acknowledged that he was not an anesthesiologist, nor had he received any anesthesiology training. He did establish that in the chest x-ray performed seven days before the surgery, Mr. Primeaux's diaphragm appeared normal and there was no evidence of any paralysis. He stated that diaphragm paralysis would show up in the x-ray by Mr. Primeaux’s left diaphragm being at a higher elevation than his right diaphragm.

It was also Dr. Shepherd’s testimony that Mr. Primeaux was a poor candidate for the block procedure due to his large size, which he opined would make important landmarks difficult to observe. Despite these statements, Dr. Shepherd admitted on | (¡cross-examination that he had never seen an interscalene block performed on a patient of Mr. Primeaux’s size. On cross examination Dr. ■ Shepherd’s knowledge of the actual events and circumstances of Mr. Primeaux’s procedure was called into question. He stated repeatedly that he knew Mr. Primeaux had not received full general anesthesia with muscle relaxation during the shoulder surgery; however, as the record shows, Mr. Primeaux did in fact receive both full general anesthesia and muscle relaxation for the shoulder replacement.

Dr. Robert Goldstein was the only anesthesiologist provided by Mr. Primeaux as an expert witness. Dr. Goldstein testified via videotaped deposition, which was played for the jury at trial. Dr. Goldstein was also the only anesthesiologist to state that Dr. Laborde’s performance of the in-terscalene block fell below the appropriate standard of care. Dr. Goldstein stated in his deposition that, when the nerve stimulator is used correctly, the doctor should not ever come into contact with the phrenic nerve. He also stated that the procedure notes made by Dr. Laborde for Mr. Primeaux’s interscalene block are so lacking in detail as to fall below the standard of care. In describing what he deems to be the appropriate information to include in procedural notes he included documentation of the milliamperage the doctor dials down to in order to get the appropriate muscle response, as well as a clear statement of what muscle response you are looking for in the procedure and what responses the patient gives during the pro: cedure. He further stated that Dr. La-borde did not document pertinent positives or negatives, or any responses from the patient. In his opinion, Dr. Laborde’s actions during the procedure and his documentation of the procedure itself fell below the standard of care and constitute malpractice.

Despite these statements by Dr. Gold-stein, when questioned by Dr. Laborde’s 17attorney he admitted that, even with nerve simulator equipment, it would not be negligent to actually come into contact with the phrenic nerve. In fact, the par-esthesia technique, an acceptable method of performing interscalene blocks, does not use an electrically charged needle and the doctor performing the procedure will actually touch nerves with the needle during the procedure to determine correct placement of the needle' prior to injection of the anesthetic. Dr. Goldstein admitted that when using the paresthesia technique, needle contact with the phrenic nerve is expected and is not likely to damage the nerve. He also admitted that, if documentation in the procedural note indicates that the procedure was done with no complication and a satisfactory result was obtained, it would be more likely than not that the procedure was done appropriately and properly. And finally, Dr. Goldstein acknowledged that as an anesthesiologist you can have an adverse outcome following a procedure without having been negligent in the performance of that procedure.

Drs. Hector Herrera and William Dedo testified as experts for Dr. Laborde. Both doctors are anesthesiologists familiar with the interscalene block procedure, having performed the procedure several hundred times themselves. Dr. Dedo was one of the three anesthesiologists assigned to serve on the Medical Review Panel for this case. Both doctors directly contradicted Dr. Goldstein’s testimony concerning the appropriate standard of care for documentation of an interscalene block in a doctor’s procedure notes.

In his testimony Dr. Laborde responded to Dr. Goldstein’s statements concerning documentation of the procedure as follows:

Q: Now, He also discussed that when you’re using the nerve stimulator that you ought to say that you started at one milliamp, and that you turned down as described. You did not put that in your procedure note; is that correct?
|8A: I did not.
Q: Do you typically put that in your procedure note that you start at one milliamp—
A: I do not. It’s a generally accepted way to perform a block, and so by giving a description of a nerve stimulator and insulated needle technique, it assumes all of those generally accepted parts of the procedure. And he did not indicate that he puts that in his note until after the fact that I had a procedure note was made aware to him.

Dr. Laborde’s contention that his procedural notes did not fall below the appropriate standard of care was corroborated by both Dr. Herrera and Dr. Dedo. Both anesthesiologists testified that they have a similar method for taking procedural notes, and that the level of detail indicated by Dr. Goldstein as the appropriate standard of care was inaccurate and overly detailed.

In his testimony Dr. Dedo stated:

A: You can document everything until the cows come home, where you were standing, where the people in the room were, what the clock time said, what your clock time said. I mean, it can get ridiculous. If the block goes uneventfully and you write down the salient features of that block, i.e., the medications you used, the type of needle you used and whether the patient tolerated the block well and any complications you actually saw or were aware of, that basically is what you need to put down.
If there’s a routine you stick with, and that’s the routine you always use, then all the things that are routine, if they’re fairly standard, then there’s no reason to list every little detail that’s just part of the routine.
Q: If you stimulate the phrenic nerve during the course of this procedure, do you need to document that you stimulated the phrenic nerve?
A: Absolutely not.

Neither Dr. Herrera nor Dr. Dedo were willing to state conclusively that Dr. La-borde’s block was the actual cause of Mr. Primeaux’s diaphragm paralysis. 19However, both doctors stated that, if it did cause the injury, based on their review of the medical records and the deposition testimony, it is their opinion that there was nothing Dr. Laborde could have done differently to avoid the injury. And more specifically, they both testified that, in their opinion, there was no malpractice on the part of the defendant, Dr. Laborde.

In his testimony, Dr. Dedo also read an excerpt of medical literature from the Cleveland Clinic Foundation, Department of General Anesthesiology, which was provided to the Medical Review Panel by Mr. Primeaux’s attorney. That literature stated: “When a nerve stimulator technique is chosen, a 22-gauge blunt insulated regional needle is selected to be used with a variable voltage nerve stimulator. The landmarks and approach are the same, and the end point is either a motor-evoked response in the arm which persists or a good parenthesis, whichever comes first.” This document, provided by the plaintiff, clearly indicates that coming into contact with the phrenic nerve is acceptable, and in fact expected, in the proper performance of an interscalene block of the brachial plexus, even where the nerve stimulation technique is used.

Both Dr. Herrera and Dr. Dedo testified that, despite Mr. Primeaux’s size, and the opinion of Dr. Shepherd, he was a good candidate for the interscalene block procedure. Dr. Herrera testified as follows:

Q: Now, Dr. Shepherd, the internal medicine guy who talked yesterday said in a patient the size of Mr. Primeaux that it’s going to be hard to see that response, the diaphragm response, when the phrenic nerve is stimulated. Do you agree with his position on that?
A: No, I do not agree.
Q: Why not?
A: Patients are going to notice this. It’s just something that patients will |innotiee, regardless of their size, a small person, large person, whatever. You stimulate the phrenic nerve, it’s going to contract the diaphragm, and they’re going to notice it.
Q: The physician, if you’re the one doing the interscalene block, is it something as you’re sitting there watching the patient that you’re going to miss as a physician?
A: No, you’re not.
Q: Is it conceivable to you that a doctor who’s sitting there doing the procedure watching the patient is going to miss that sort of response in a patient?
A: No. No, it’s not.

The testimony by the expert witnesses in this case is clearly contradictory. This court has previously addressed the issue of credibility of expert witnesses in cases where medical specialists’ actions are questioned.

The law does not require perfection in medical diagnoses and treatment. On the contrary, a doctor’s professional judgment and conduct must be evaluated in terms of reasonableness under the then existing circumstances, not in terms of results or in light of subsequent events. Broadway v. St. Paul Insurance Co., 582 So.2d 1368 (La.App. 2d Cir.1991), and the cases cited therein. When the alleged negligence of a specialist is at issue, only those qualified in that specialty may offer expert testimony and evidence of the applicable standard of care. Fox v. Our Lady of Lourdes Regional Medical Center, 550 So.2d 379 (La.App. 3rd Cir.1989), writs denied, 556 So.2d 1263 and 556 So.2d 1264 (La.1990). When the expert opinions contradict concerning compliance with the applicable standard of care, the trial court’s conclusions on this issue will be granted great deference. It is the sole province of the factfinder to evaluate the credibility of such experts and their testimony. Arceneaux, supra; Broadway, supra.

Charpentier v. Lammico Ins. Co., 606 So.2d 83, 87 (La.App. 3 Cir.1992).

The plaintiffs contend that the jury committed manifest error in failing to find that the most likely cause of Mr. Primeaux’s injury was the negligence of Dr. Laborde. They argue that the most likely cause of Mr. Primeaux’s injuries is the interscalene block performed by Dr. Laborde. They contend that the defendant only |noffered unlikely and speculative possibilities to explain Mr. Primeaux’s injuries. Therefore, under the precedent established by the Louisiana Supreme Court in Fusilier, 764 So.2d 74, they argue the jury committed manifest error in failing to find that the most likely cause of Mr. Primeaux’s injury was the negligence of Dr. Laborde.

The supreme court made the following statement in Fusilier:

Although we are always reluctant to overrule a jury’s verdict, the jury’s decision in this case was manifestly erroneous. None of the experts testifying at the trial offered any plausible explanation for the injuries plaintiff suffered. The perforations of plaintiffs aorta, duodenum, and mesentery were all dismissed as unfortunate “complications” of the procedure. The only explanation offered by defendant for perforating plaintiffs aorta, duodenum, and mesen-tery, is an unsupported allegation that plaintiffs aorta must have been displaced. However, the operative report does not reflect that observation, and none of plaintiffs medical records support defendant’s contention that plaintiff had any anatomic abnormality or variation. The only logical conclusion is that Dr. Fusilier negligently inserted the needles, either by location or angle, and perforated Mrs. Fusilier’s aorta, duodenum, and mesentery.

Id. at 81 (emphasis added).

This court has studied the above quote from Fusilier in great detail, and at great length. The opinion clearly seems to require not only that the plaintiff show that the defendant failed to comply with the appropriate standard of care in performing the procedure, and this failure to exercise that degree of care was the proximate cause of the plaintiffs injuries, but also that the defendant’s experts show that there is some plausible cause for the plaintiffs injuries other than negligence on the part of the defendant doctor. This requirement would appear to require a res ipsa loquitur analysis, even though no mention was made in the Fusilier opinion that res ipsa loquitur was applied in that case.

In Fusilier v. Dauterive, 99-0692 (La. App. 3 Cir. 12/22/99), 759 So.2d 821, lathis court determined that res ipsa loquitur did not, and could not, apply under the facts of the case. Judge Peters addressed the issue of res ipsa loquitur in his dissent and felt it was applicable. Although the supreme court discussed Judge Peters’ dissent to our opinion, and then appeared to apply the res ipsa loquitur analysis in the final paragraph of their decision, they did not explicitly find res ipsa loquitur applicable in their analysis of the facts and circumstances of the case. The supreme court’s requirement in the quote above, that the expert witnesses provide a non-negligent cause for the accident, adds an additional point of analysis which we have not, heretofore, undertaken in medical malpractice cases.

All medical testimony at trial acknowledged that the very nature of this procedure is such that the danger of coming into contact with the phrenic nerve is high. In fact coming into contact with that nerve is an expected event during this procedure. The medical experts all testified as to the extremely close proximity of these two sets of nerves, and the high probability that there will be some involvement of the phrenic nerve in a correctly performed interscalene block.

In addition to the expected interaction with the phrenic nerve in this procedure, the evaluation of this matter is further complicated by the fact that there is no clear consensus as to what actually caused Mr. Primeaux’s diaphragm paralysis. There was no clear evidence that the nerve was actually severed, or even pierced, by Dr. Laborde’s needle during the procedure. Even if it is assumed that the injury occurred during the interscalene block procedure, this failure to identify the actual damage to Mr. Primeaux’s phrenic nerve that caused his left diaphragm paralysis makes it exceedingly difficult to say that Dr. Laborde could have prevented the injury.

No evidence was presented by any witness indicating that Dr. Laborde actually _[^saw and ignored objective signals that he was near the phrenic nerve. While on the stand Mr. Primeaux never indicated that Dr. Laborde was not paying attention during the procedure, or that he was given objective evidence by the patient during the procedure that he was near the phrenic nerve and ignored such evidence. Both Dr. Laborde and Mr. Primeaux testified that there was also an assistant in the room watching for the patients’ objective responses during the procedure. The in-terscalene block procedure was completed in approximately twenty-five minutes, and the block Dr. Laborde was attempting to perform was successful, meaning the appropriate block result was obtained. Dr. Laborde’s procedural notes indicate that the procedure was tolerated well by Mr. Primeaux and do not indicate difficulties or complications occurred during the procedure. According to expert testimony, these factors all indicate that there were no known complications or difficulties. There was no immediate indication during the procedure, or while in the hospital post operatively, that the patient was experiencing any difficulty breathing or any shortness of breath.

In light of these considerations, we conclude that sufficient evidence was presented showing Mr. Primeaux’s injuries could have occurred without any negligence on the part of Dr. Laborde and that his actions during the interscalene block, were within the appropriate standard of care for anesthesiologists performing this procedure.

As stated above, the trier of fact’s determinations regarding credibility of witnesses and the weight to be given their testimony at trial are entitled to great discretion. Therefore, in light of our discussion above, it was not error for the jury to give the testimony of Dr. Shepherd less weight than the testimony of the expert anesthesiologists who took the stand. We also find no error in the jury’s ^^determination that Drs. Herrera and Dedo were more credible expert anesthesiologist witnesses than Dr. Goldstein.

DECREE

We affirm the jury’s finding that Dr. Laborde did not commit malpractice. All costs of this appeal are assigned to the plaintiffs.

AFFIRMED.


source: Caselaw Access Project

author: hLEON A. CANNIZZARO, Jr., Judge.

license: Public Domain

text:
    Gerard MENDONCA v. TIDEWATER INC.
    No. 2003-CA-1015.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2003.
    Order Denying Rehearing Jan. 15, 2004.

      Gerard Mendonca, West Mead, Sydney, New South Wales 2145, Australia, In Proper Person, Plaintiff/Appellant.
    Walter W. Christy, Renee C. Gluth, Fri-lot, Partidge, Kohnke & Clements, L.C., New Orleans, LA, for Defendant/Appellee, Tidewater, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge LEON A. CANNIZZARO, JR., MOON LANDRIEU, Judge Pro Tempore).
   hLEON A. CANNIZZARO, Jr., Judge.

This case involves an appeal from the trial court’s judgment dismissing the suit filed by the plaintiff, Gerard Mendonca, against the defendant, Tidewater Inc. The trial court dismissed Mr. Mendonca’s suit on an exception of no right of action that was filed by Tidewater. Mr. Mendonca is appealing the dismissal of his suit.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Mendonca is an Indian citizen, who is currently residing in Australia. He filed this suit in Louisiana in Orleans Parish. Mr. Mendonca alleged that while he was employed in Dubai, United Arab Emirates (“U.A.E.”) by Tidewater, a Delaware corporation with its corporate headquarters in New Orleans, Louisiana, he was subjected to racial discrimination in violation of the Louisiana Employment Discrimination Law, La. R.S. 23:301 et. seq. (the “Discrimination Law”). Additionally, Mr. Mendonca alleged that he was subjected to retaliation by Tidewater in violation of the Louisiana whistleblower law, La. R.S. 23:967. ^Finally, Mr. Mendonca asserted claims against Tidewater for breach of contract and negligence.

After Tidewater was served in the instant suit, Mr. Mendonca’s counsel of record moved to withdraw as counsel. Tidewater objected to the withdrawal of counsel on the grounds that Mr. Mendon-ca lives outside of the United States and is, therefore, unavailable for service of process and court appearances. The trial court, however, granted the motion to withdraw, and Mr. Mendonca is now representing himself.

Tidewater filed a declinatory exception of lack of subject matter jurisdiction and peremptory exceptions of no right of action and no cause of action. At the trial on the exceptions, Tidewater submitted affidavits to show that Mr. Mendonca was not employed by Tidewater but was instead employed by Al Wasl Marine Ltd. and its successor, Al Wasl Marine, L.L.C., (collectively, “Al Wasl”), U.A.E. companies. Tidewater has an indirect interest in A1 Wasl, because a wholly owned subsidiary of Tidewater has a 49 percent ownership interest in Al Wasl. Tidewater submitted affidavits stating that the management of Al Wasl was not controlled by Tidewater from its New Orleans, Louisiana headquarters. Mr. Mendonca, however, submitted a countervailing affidavit of a co-employee that the decision to terminate Mr. Mendonca’s employment was made in New Orleans by Tidewater.

|sThe trial court granted Tidewater’s exception of no right of action and found that the other exceptions became moot upon the granting of that exception. After the exception of no right of action was granted, Mr. Mendonca filed numerous motions seeking, among other things, a rehearing on the exceptions filed by Tidewater. Mr. Mendonca also filed motions seeking permission from the trial court to amend his petition. The trial court denied all of Mr. Mendonca’s motions, and he then filed this appeal.

DISCUSSION

Standard of Review

The determination of whether a plaintiff has a right of action is a question of law. Therefore, this court is required to determine whether the trial court applied the law appropriately. In Glass v. Alton Ochsner Medical Foundation, 2002-0412 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, writ denied, 2002-2977 (La.3/14/03), 839 So.2d 36, 2002-3018 (La.3/14/03), 839 So.2d 37, this Court stated in a discussion of the scope of appellate review of issues of law:

The standard of review of appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4 Cir.1992). Furthermore, if the decision of the district court is based on an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983).

2002-0412, p. 3; 832 So.2d at 405. See also Sander v. Brousseau, 2000-0098, p. 4 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 711, where this Court stated that “[appellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct.”

|4No Right of Action

La. C.C.P. art. 923 states that “[t]he function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 927 lists the objections that may be raised through a peremptory exception, and “[n]o right of action, or no interest in the plaintiff to institute the suit” is one of the objections that is listed. La. C.C.P. art. 927(A)(5).

In Industrial Companies, Inc. v. Durbin, 2002-0665 (La.1/28/03), 837 So.2d 1207, the Louisiana Supreme Court discussed the peremptory exception of no right of action as follows:

Generally, an action can only be brought by a person having a real and actual interest which he asserts. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.

2002-0665, pp. 11-12; 837 So.2d at 1216 (citations omitted). See also Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 1095, 262 So.2d 328, 333 (1972).

This Court has also considered the exception of no right of action.- In Plaquemines Parish Government v. State of Louisiana, 2001-1027, p. 4 (La.App. 4 Cir. 4/10/02), 826 So.2d 14, 18, writ denied, 2002-1304 (La.9/13/02), 824 So.2d 1170, this Court stated that “[t]he exception [of no right of action] is appropriate \ñwhen the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with suit in a particular case.” (Emphasis added.) See also Simmons v. Templeton, 99-1978, pp. 5-6 (La.App. 4 Cir. 4/12/00), 762 So.2d 63, 67; Touzet v. V.S.M. Seafood Services, Inc., 96-0225, pp. 2-3 (La.App. 4 Cir. 3/27/96), 672 So.2d 1011, 1012-13.

Louisiana Employment Discrimination Law

La. R.S. 23:331(A), which prohibits discrimination based on race, color, religion, sex, and national origin, provides that the Discrimination Law applies “only to an employer who employs more than fifteen employees within this state.... ” La. R.S. 23:331(B) further provides that “ ‘employer’ means a ... commercial entity ... receiving services from an employee and, in return, giving compensation of any kind to an employee.”

It is undisputed that Mr. Mendonca was employed in Dubai, U.A.E., not in Louisiana. Based on the affidavits presented by Tidewater, we find that Mr. Mendonca was employed directly by Al Wasl, a foreign employer that had no employees in Louisiana. Therefore, with respect to the claims under the Discrimination Law, Mr. Men-donca has no capacity to sue AI Wasl. Consequently, he has no right of action. See also Salazar v. Freeport Overseas Service Co., 2000 WL 1099391, p. 2 (E.D.La. 2000), where the federal district court cited EEOC v. Arabian American Oil Co., 499 U.S. 244, 259, 111 S.Ct. 1227, 1236, 113 L.Ed.2d 274 (1991), for the proposition that “extraterritorial effect cannot be given to state statutes unless expressly provided by the statute itself.”

| ^Louisiana’s Whistleblower Statute

La. R.S. 23:967(A) provides as follows:

An .employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that, is in violation of law.

The appropriate court for filing suit under this statute is the “district court where the violation occurred.” La. R.S. 23:967(B).

Because the statute provides for filing suit in the district court where the violation of that statute occurred, we believe that it is clear that La. R.S. 23:967 applies to conduct that occurs in Louisiana and not elsewhere. Mr. Mendonca was employed by Al Wasl, and his employment with AI Wasl could be terminated only by Al Wasl, which is located in the U.A.E. Tidewater did not directly employ Mr. Mendonca and could not terminate his employment with Al Wasl. Therefore, Mr. Mendonca’s termination by a foreign employer is not covered by La. R.S. 23:967. He has no standing to sue Tidewater under La. R.S. 23:967 and no right of action with respect to his claims under that statute. See Salazar v. Freeport Overseas Service Company, supra, where the federal district court held that “the statute [La. R.S. 23:967] does not expressly provide for extraterritorial effect....”

| (¡Tort Claims

In his petition, Mr. Mendonca has made allegations that appear to be claims based on tortious interference with the contract of employment that he allegedly had with his employer, Al Wasl. He asserts that Tidewater made decisions at its | ./Louisiana headquarters that directly affected his employment contract with A1 Wasl and caused some type of breach of that contract.

La. C.C. art. 3543 establishes the rules for determining what law applies to “[¡Issues pertaining to standards of conduct and safety” in tort actions. Among the actions that are governed by Louisiana law are “cases in which the conduct that caused the injury occurred in this state and was caused by a person who was domiciled in, or had another significant connection with, this state.” Id.

In the instant case Mr. Mendonca has alleged that the management of Tidewater made decisions that directly resulted in the termination of his employment with AI Wasl. Because it did not have a majority interest in Al Wasl, Tidewater did not have legal control over Al Wasl, but Mr. Men-donca’s claims raise the issue of whether Tidewater had de facto control over Al Wasl. Therefore, we believe that Mr. Men-donca has a right of action with respect to his claims that Tidewater interfered with his employment by Al Wasl. Under La. C.C. art. 3543, it is clear that a claim alleging injury from conduct that occurred in this state and that was caused by a person domiciled in or with significant connections to Louisiana is governed by Louisiana law. Mr. Mendonca, therefore, has standing to bring a claim against Tidewater based on allegations that the conduct of Tidewater’s management that occurred in Louisiana caused him to suffer injury.

Contract Claims

Mr. Mendonca has alleged that Tidewater breached “specific promises of job security, equal opportunity, anti-harassment and anti-retaliation.” His petition does not specify any further details relating to the breach of contract claims, but it [Sappears that he is claiming that Tidewater was contractually bound to afford him job security and a work environment free from harassment, discrimination, and retaliation.

La. C.C art. 3515 establishes the general rules that are applicable to conflict of laws. La. C.C. art. 3537 contains the general conflict of laws rules that are applicable specifically to contract cases.

La. C.C. art. 3515 provides that “an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.” The determination of which state’s laws apply to a particular case is “determined by evaluating the strength and pertinence of the relevant policies of all involved states.... ” Id. Among the factors to be considered in making the determination are the policies of international systems and the relationship of the state to the parties and their dispute. Id. The policy of upholding the justified expectations of the parties is also a factor to consider in determining what law applies. Id. For purposes of La. C.C. art. 3515, the term “state” is defined to include “any foreign country or territorial subdivision thereof that has its own system of law.” La. C.C. art. 3516.

The conflict of laws rule in La. C.C. art. 3537 takes into account the Louisiana contacts of the parties and the transaction, the nature of the contract, and the policy of promoting multistate commercial intercourse. The rule in article 3537 also considers the various policies to which La. C.C. art. 3515 refers.

Applying the provisions of La. C.C. art. 3515 and La. C.C. art. 3537 to the contract claims made in the instant case, we do not believe that Louisiana law applies to them. Mr. Mendonca is not a citizen or resident of Louisiana. He is a citizen of India and a resident of Australia. There is no evidence in the record that |9he has ever worked or lived in Louisiana. There is also insufficient evidence in the record to support a contract claim against Tidewater. Mr. Mendonca’s contractual relationship was with Al Wasl, his employer in Dubai, U.A.E, not with Tidewater. There should be no expectation on the part of Mr. Mendonca, who is neither a United States citizen nor a resident of Louisiana, that the laws of Louisiana would apply to a contract relating to his employment by a foreign company in a foreign country. Therefore, we find that the trial court properly granted Tidewater’s exception of no right of action with respect to the contract claims Mr. Mendonca has asserted against Tidewater.

Post Trial Motions

Mr. Mendonca filed a number of motions after the trial on the exceptions that were raised by Tidewater. To the extent that those motions relate to the discrimination, whistleblower, and contract claims, the trial court correctly denied those motions. To the extent that they relate to Mr. Men-donca’s tort claims, the trial court should reconsider those motions on remand.

CONCLUSION

Based on the foregoing discussion, we find that Mr. Mendonca had no right of action in connection with his claims except with respect to the tort claim he has asserted against Tidewater. The judgment of the trial court is, therefore, affirmed with respect to the granting of the exceptions of no right of action relating to all of Mr. Mendonca’s claims except the tort claim. The judgment of the trial court with |10respect to the tort claim is reversed, and this case is remanded to the trial court for further action in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ON REHEARING

| REHEARING DENIED.

The appellee, Tidewater, Inc., has applied for rehearing on the issue of whether the plaintiff, Gerard Mendonca, has stated a cause of action in tort based on the actions of Tidewater, Inc. in connection with the plaintiffs employment contract with Al Wasl Marine Ltd. and its successor, Al Wasl Marine, L.L.C. Tidewater argues in its application for rehearing that Mr. Mendonca did not allege and did not have a contract of employment with a term with his employer.

We find no error in our original opinion. Mr. Mendonca’s petition contains allegations that he was employed pursuant to an employment contract, and there are documents in the record indicating that he was party to an employment contract and that it was for a term. Mr. Mendonca is, therefore, entitled to the opportunity to try to prove the tort based claims he has made regarding the employment contract.

      . Prior to filing the instant suit, Mr. Mendon-ca filed suit against Tidewater in the United States District Court for the Eastern District of Louisiana. In the federal suit, he asserted the same claims that he has alleged in the instant case as well as various claims under federal law. The suit in federal court was dismissed with prejudice with respect to the federal law claims and without prejudice with respect to the state law claims. The federal district court's judgment dismissing the claims was affirmed on appeal by the United States Court of Appeal for the Fifth Circuit. The state law claims were re-filed in the instant suit.

      . It is unclear when the countervailing affidavit was filed into the record, but it appears to have been filed as an attachment to a pleading filed after the trial court granted Tidewater's exception of no right of action.

      . Although Mr. Mendonca’s pleadings are a bit confusing, it appears that he has, in fact, stated claims based on tortious conduct.

      . These motions include motions to annul the trial court’s judgment, motions to take discovery, and motions to amend the petition.


author: JjPICKETT, Judge. | THIBODEAUX, J.,

text:
    STATE of Louisiana v. Scott Allen COOPER.
    No. 03-161.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      Michael Harson, District Attorney, 15th JDC, J. Floyd Johnson, ADA, Lafayette, LA, for State-Appellee: State of Louisiana.
    James L. Brazee, Jr., Lee Andrew Gal-laspy, Brazee, Cormier & Gallaspy, for Defendanh-Appellant: Scott Allen Cooper.
    Court composed of ULYSSES GENE THIBODEAUX, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, Judge.

FACTS

On December 7, 1997, at approximately 4:00 p.m. the defendant and a friend, Vince Moore, approached the vehicle of the victim, Earl Zenon, in a parking lot in Lafayette, Louisiana. According to an eyewitness, Moore went to the driver’s side and the defendant went to the passenger’s side of the car. The eyewitness testified that Moore conversed briefly with the victim, then produced a pistol and shot the victim five times. Moore then jumped into the driver’s seat of the victim’s car, apparently pushing the victim over, while the defendant jumped into the back seat of the victim’s car. Moore and the defendant left the shopping center in the victim’s car. The eyewitness followed them, calling the police with his cell-phone. The authorities advised the witness not to follow and he desisted. The car and the body of the victim were later found in a remote area of Evangeline Parish. The car had been set on fire with the victim in it.

On November 15, 2000, a Lafayette Parish grand jury indicted the defendant, Scott Cooper, for being a principal to the first degree murder of Earl Zenon in violation of La.R.S. 14:24 and 14:30. The state subsequently amended the charge to principal to second degree murder, in violation of La.R.S. 14:24 and 14:30.1. This matter was tried before a jury who returned a unanimous verdict of guilty as charged.

The defendant subsequently filed motions for post verdict judgment of acquittal and for a new trial on November 7, 2002. Those motions were heard by the trial court and denied. The defendant was sentenced to the mandatory term of life without benefit of parole, probation, or suspension of sentence. The defendant appeals his conviction.

| ¡ASSIGNMENTS OF ERROR

On appeal, the defendant alleges five assignments of error:

1. The jury erred by finding the State had proven beyond a reasonable doubt all of the essential elements of Principal to Second Degree Murder.
2. The Trial Court erred in denying the Defendant’s Motion for Post Verdict Judgment of Acquittal and/or Alternatively For a New Trial.
3. The Trial Court erred by not granting the defendant’s motion for mistrial; the State, having failed to sustain the burden of proof beyond a reasonable doubt, instead relied on prosecutor’s personal perspective, aggressive advocacy, jury theatrics and use of prejudicial autopsy photographs to present a case based on hypothetical speculation. The prosecutor’s systematic statements as to his theories, which were not supported by the evidence, violated the defendant’s constitutional rights of due process and for a fair trial, guaranteed under the United States Fifth Amendment and Fourteenth Amendment and Article I, §§ 2 and 16 of the Louisiana Constitution of 1974.
4. The Trial Judge erred by permitting a State’s witness, Herbert Zenon, to testify after witness Zenon violated the rule of sequestration.
5. The Trial Judge erred by not replacing Juror # 150, Joseph Floyd Zeno, when presented with evidence of the appearance of impropriety and bias on the part of Juror Zeno.

DISCUSSION

The first two assignments of error are related and will be discussed together. The defendant argues the evidence adduced against him at trial was insufficient to support his conviction. The test for insufficiency claims is well-settled and is thoroughly discussed in State v. Kennerson, 96-1528, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

Second degree murder is proscribed by La.R.S. 14:30.1, which states in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery ... even though he has no intent to kill or to inflict great bodily harm.

These are the provisions of the statute the court read to the jury, at both the opening and the closing of trial, and argued by the state.

At trial, the state argued the killing was either a specific-intent murder or a felony-murder, or both. Armed robbery is defined by La.R.S. 14:64(A):

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Also, the state charged that the defendant acted as a principal to the murder. The law of principals is governed by La. R.S. 14:24:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

The court instructed the jury it could find the defendant guilty of the lesser-liincluded offense of principal to manslaughter, based upon the underlying offense of carjacking. The relevant portion of the manslaughter statute, La.R.S. 14:31, states:

A. Manslaughter is:
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; ...

Carjacking is defined by La.R.S. 14:64.2(A):

A. Carjacking is the intentional taking of a motor vehicle, as defined in R.S. 32.1(40), belonging to another person, in the presence of that person, or in the presence of a passenger, or any other person in lawful possession of the motor vehicle, by the use of force or intimidation.

In order to convict a defendant as a principal to specific-intent second degree murder, the state must prove the defendant had specific intent to kill or to inflict great bodily harm. State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987). Under the state’s alternate theory that Moore shot the victim during an armed robbery, the state had to prove the defendant had the intent to commit, or directly aid in the commission of, an armed robbery, and a killing resulted. La.R.S. 14:30.1(A)(2)(a)' and La.R.S. 14:24. It is well settled that intent may be inferred from a defendant’s actions. State v. Recard, 97-754 (La.App. 3 Cir. 11/26/97), 704 So.2d 324.

The State’s first witness was Bill Orte-go, an Evangeline Parish deputy at the time of the offense, who responded to a report by a landowner that something was on fire on the landowner’s property. Deputy Ortego found the victim’s burning car in a remote area of Evangeline Parish with the victim’s body in the car. Deputy Orte-go Isdescribed the location of the vehicle, the .condition of the vehicle, and the condition of the body.

Detective John Demourelle of the Evangeline Parish Sheriffs Office also testified regarding the location and condition of the victim’s car and body. He testified regarding the recovery of the vehicle identification number (VIN), his contacts with Lafayette Parish law enforcement, his contact with the victim’s family, and the initial identification of the body as being that of Earl Zenon. He further testified as to the extreme remoteness of the area where the burning car was discovered and his development of information that a man named Danny Smith was familiar with this remote area.

Sergeant Kelly Gibson of the Lafayette Police Department testified on behalf of the state. Sergeant Gibson met with officers who responded to the scene in Evangeline Parish where the victim and his car were found. He took a statement from Ronald Morton, an eyewitness to the shooting of the victim in Lafayette. He further organized crime scene searches at the scene of the shooting in Lafayette Parish, and the site where the body and car were found in Evangeline Parish. Gibson’s investigation revealed that Vince Moore’s telephone had been used to page the victim shortly before the shooting. His investigation further revealed that the defendant was living at Moore’s residence at the time of the shooting. Gibson also took two statements from the defendant, which will be discussed in greater detail below.

Ronald Morton, who testified on behalf of the state, was an eyewitness to the shooting in the parking lot in Lafayette Parish. Mr. Morton was sitting in the parking lot in his vehicle waiting for his brother-in-law who was at Eckerd’s Drugs. His testimony was, in pertinent part, as follows:

|fiA. Okay. It was December 7th of 19 — I think 1997. I was at Eckerd’s Drugs off Pont Des Mouton and Moss Street. I was parked there, waiting for my brother-in-law at the Eckerd’s Drugs to get some medicine; and while I was waiting for him in the car, I observed two (2) young men walking to a certain car. And when they got there, the little guy that was in the car rolled the window down — either rolled it down or he had power windows, and one of the little guys that was talking to him shot him, came up with a gun and — he spoke to him about ten or fifteen seconds, maybe less than that, and then started firing, shooting the guy.

Subsequently, Morton testified about the shooting in greater detail:

A. One of them had their hand in their pocket, coat pocket. And the other, I don’t believe he had his hand in his pocket. But they were walking together, not saying a word to each other till they got by the car. And then one of them went around to the passenger’s side, and the other one stayed by the driver’s side. And the little guy rolled the window down — or, like I say, it could have been a power window, it wasn’t all the way down, and they spoke for about five or ten seconds, and he shot him five (5) times.
Q. And what, if anything, did the other person do?
A. Well, after the shooting, the person that was on the passenger’s side — they both got in the car at the same time after the shooting. After the little guy shot the other guy, they both jumped into the car.
Q. Was there anything that was obstructing your vision, or did you have a clear view of everything?
A. I had a clear view. There were no cars in front of me, and it was a clear day, a clear evening. There was nothing.
Q. After the shooting occurred, did it appear that there was a violent exchange of words between the two individuals?
A. No, sir. I don’t believe there was no words at all.
Q. Did you see anyone, maybe the person who you saw shoot the gun, reach over the car to the other person who was on the other side and make a demand of some sort?
A. No. No, I couldn’t say that because the windows were tinted. You know, after he got in — after the little guy got in the car on the passenger’s side, I couldn’t see him at all after that. But the guy who did the shooting, the window was still down; so it’s like he forced the guy he shot over some kind of way to push him out of the way so he could 17drive and take the car.
Q. And would it be fair for me to say that immediately after the shooting, what you observed was the person on the passenger’s side just jumped in the vehicle without hesitation?
A. Right. Yes, sir.
Q. What then happened?
A. Then he had problems — the driver or the shooter had problems putting the car in gear some kind of way, because it jerked for about maybe a couple of seconds, and then he got it into reverse and backed out and went around to the back of the store, to go to the highway.
Q. That would be behind the little strip mall?
A. Right, behind the Eckerd’s Drugs. They have a passage, you know, like a little street or something in back of the store where you could pass and get to the highway.

Morton testified he saw a nearby truck pull out at the same time the defendant and the shooter were “going to the back” in the victim’s car. The truck turned left going to Moss Street, according to Morton, however Morton did not know where it went subsequently because he followed the victim’s vehicle and called 911. When he reached 911 he was told to pull over and he complied.

On cross-examination, Mr. Morton was questioned about the statement given to police within two days of the shooting incident. He testified as follows:

Q. Now the other person with the shooter, did he appear to be angry at any time?
A. Not to my recollection, no, sir.
Q. Were you focused on him at all, or were you focused on the shooter?
A. Well, I was focused on both of them as they approached the ear, but after the shooting went on, I was focused mostly on the shooter.
Q. And you testified that as the two of them approached the car, one had their hands in their pocket. Was that the shooter?
|SA. Yes.
Q. And they walked up to the car as if there was nothing unusual, nothing bothering them?
A. Right, you know, like a Sunday walk.
Q. They didn’t appear to be nervous at that time?
A. Not walking to the car.
Q. Now after the shots were fired, how did the shooter appear to you?
A. Enraged.
Q. How did the other person with him appear?
A. Well, he seemed nervous, very nervous.
Q. He hadn’t been nervous before, but he was nervous then; is that correct?
A. Right. When they were going it was, like I said, a Sunday walk. You know, both of them was calm until the shooting. And after the shooting, the— who are you asking about, the shooter or the other guy?
Q. The other guy.
A. Well, when he went around the car, when he approached around the car, he looked a little bit nervous then.
Q. After the shooting did he appear to be in shock?
A. In a sense. You know, they both jumped in the car at the same time. You know, it was like a rush.
Q. Do you recall giving the statement to the detective that we were talking about, where you said he paused like he was in shock, and “he was stunned, and then he jumped in the car?”
A. Most probably I did say that.

On redirect, Morton said, “If he was in shock, you know, I couldn’t really say right off.”

Then, on re-cross, the following colloquy occurred:

hBY MR. BRAZEE:
Q. Just a couple follow-up questions, Mr. Morton. You gave a statement on December 9th of 1997, didn’t you?
A. It was — I think it was a Monday. If it was a Monday, then I think it was the 9th.
Q. And that was two (2) days after the incident?
A. One (1) day after — no, no, it was two (2) days, because yeah, I went fishing Monday.
Q. And everything was pretty fresh in your mind at that time?
A. Oh, yeah.
Q. And we’re five years later now, aren’t we?
A. Yes, sir.
Q. And at that time you did tell the detectives or the detective that was interviewing you that Mr. Cooper was like he was in shock, he was stunned, and then he jumped in the car, didn’t you?
A. Yes, sir.

Contrary to the dissenting opinion, nowhere in his testimony does Morton testify that the defendant’s reaction was one of “surprise.”

As previously noted, Sgt. Gibson took two statements from the defendant regarding this incident. On April 7, 1998, the defendant came in voluntarily and gave a statement. On April 8, 1998, the defendant’s mother called Sgt. Gibson and advised him that the defendant was in jail and wanted to give another statement. Sgt. Gibson picked the defendant up at the jail and he gave a second statement. Both statements were recorded. The tapes of the interviews were played for the jurors who were also provided a transcript of the tapes to follow.

In his first statement, the defendant stated that Vince Moore wanted some marijuana, so the defendant paged the victim, who was a friend of his. Driven by |inDanny Smith, they proceeded to the Winn-Dixie parking lot to meet the victim, but when they got to the victim’s car, Moore immediately shot him. The defendant told Sgt. Gibson he did not know Moore was carrying a gun and that he ran back to Smith’s truck, which he described as being “dark, dark blue, it’s almost black” and left with him. When asked his opinion of why Moore shot the victim, the defendant stated Moore wanted the “big bag” of “weed” the victim had in his car. The defendant stated Moore told him this at some point after the shooting. He stated Moore also told him that he had burned the victim’s car and other evidence.

In his second statement, given the day after the first statement, the defendant presented a different version. The defendant stated he and Moore were both at the driver’s side of the victim’s car, then, immediately after shooting the victim, Moore shouted for him to get into the car. According to the defendant, he got in the back seat, and they drove to Moore’s residence. Later in the statement, the defendant said he got into the car on the “passenger side.” This discrepancy was not explained. Once at his residence, Moore handed the bag of marijuana to his brother, Josh. According to the defendant, Josh was very upset to see the victim’s dead body. The defendant also stated Moore retrieved a blanket from the residence. Smith arrived at some point, and the defendant got into his truck. Smith then led Moore to a field in Evangeline Parish. Once at the field, Moore drove to the back of it. The defendant stated that as he and Smith pulled up behind him, Moore jumped out of the car which was already on fire. The defendant was not sure how the fire started, but speculated Moore might have lit the blanket he had retrieved from the house, or might have lit one of the car’s seats. Moore got into Smith’s truck and they drove back to Moore’s residence. According to the defendant, Moore gave half the bag of “weed” to Smith. |1THe kept the other half. The defendant stated he had smoked some of it.

Forensic pathologist Dr. Emil Laga testified regarding the cause of death. Laga testified that he performed the autopsy on December 8,1997. Laga found two bullets in the victim’s skull which he described as “killing bullets,” because of their path and location. He testified either bullet would ultimately result in the victim’s death. Due to the paths of the bullets, Laga testified the victim must have been looking to the right when they were fired. Laga found a non-fatal bullet that had entered the torso. Laga further testified that the evidénce indicated the victim was still alive when the car was set on fire. Laga testified that the victim’s blood contained traces of carbon monoxide, cyanide, and isobutyl alcohol. He explained the carbon monoxide and cyanide were both by-products of material burning in the car. The isobutyl alcohol indicated a solvent had been used as an accelerate for the fire. He further testified that the presence of these three substances in the blood stream indicated the victim inhaled them during the fire. On cross-examination, Laga specifically stated the bullet wounds would have killed the victim, not immediately, but over a period of time. When asked if the wounds would have caused him to “appear[ ] to have been dead,” Dr. Laga responded that the victim would have been breathing and noted “breathing is one of the signs that you are still alive.”

Herbert Zenon, Jr., the victim’s brother, testified for the state. He established that the defendant was acquainted with the victim and that he had seen them together in the past.

The state’s final witness was Vincent Moore, the shooter, who had previously pled guilty to the offense and had been sentenced. Moore acknowledged being a member of a gang known as the “Baby Blue Crips.” He acknowledged being the | ^defendant’s best friend and that the defendant knew the victim. He denied knowing the victim himself. He further denied any knowledge of or participation in the crime. Moore was hostile to the state and verbally combative throughout his testimony.

As previously noted, when the issue of the sufficiency of the evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). After reviewing the evidence presented at trial under the Jackson standard of review we find there is sufficient evidence to establish the essential elements of the crime of principal to second degree murder.

The jury was presented evidence that the defendant set up the meeting between himself, Vince Moore, and the victim. The defendant arrived at the Winn-Dixie parking lot with Vince Moore, the shooter, and they approached the victim together. Evidence was presented that when they approached the vehicle the shooter went to the driver’s side and the defendant walked around the back of the car to the passenger’s side. The testimony of the eyewitness to the shooting was that the two appeared very calm as they approached the vehicle, the defendant looking a bit nervous when he “approached around the car.” The shooter was at the car window, at the most, for fifteen seconds when he pulled the gun from his pocket and shot the victim five times. The evidence showed he shot the victim twice in the back of the head, suggesting the victim’s head was turned toward the defendant when he was shot. The eyewitness testified that when the shooting occurred the defendant appeared stunned, but further testified that the shooter jumped into the driver’s seat l13and the defendant jumped into the back passenger seat at the same time, without hesitation. He heard no words spoken between them. According to the defendant’s statement when he left the parking lot, he and the shooter, Vince Moore, took the victim’s car back to Moore’s house. The medical testimony established the victim was still alive at that time. The jury heard evidence that the defendant and the shooter were met at Moore’s house by Danny Smith, the same individual who had taken them to the parking lot where the shooting occurred. The defendant got into the truck with Smith and accompanied him as he led Moore, still driving the victim’s car, with the victim still alive, to a remote area of Evangeline Parish where the car was set on fire with the victim, who was still alive, inside it. The jury heard evidence that the marijuana taken from the victim was divided between Moore and Smith, and that the defendant also shared in the use of the marijuana.

After examining the evidence presented, in a light most favorable to the prosecution, we conclude a rational trier of fact could have found the elements of principal to second degree murder proven beyond a reasonable doubt.

The appellant argues that the evidence is insufficient to prove the defendant had the requisite intent to commit the offense as the state failed to establish any specific intent on the part of the defendant to kill or inflict great bodily harm on the person of Earl Zenon. We find no merit in this argument.

Specific intent is a state of mind and can be proved directly as a fact or may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Turner, 626 So.2d 890 (La.App. 3 Cir.1993), writ denied, 93-3182 (La.4/4/94), 635 So.2d 1122. Considering the evidence as a whole as set forth above, we find a rational trier of fact could have found the state proved the defendant had a 114specific intent to kill Earl Zenon or inflict great bodily harm upon him. The defendant set up the meeting. He accompanied the shooter to the scene. When the shooting occurred, he neither tried to stop it nor even said anything to the shooter which would indicate he was surprised. Instead, he immediately jumped into the vehicle with the shooter, no words having passed between them, and went back to the shooter’s house with him in the victim’s car with the victim still alive. He then accompanied the shooter, and the same man who took them to the scene of the shooting, to Evangeline Parish to dispose of the car and the victim. Subsequent to the disposal of the car and victim, the defendant accompanied the shooter back to the shooter’s house where they smoked marijuana that had been taken from the victim. The argument that the state failed to sufficiently prove the element of intent is without merit.

Further, we find the state produced sufficient evidence under the Jackson standard of review to establish their alternate theory, that the defendant was a principal to the offense of second degree murder, by proving the defendant was a participant in the armed robbery of Earl Zenon and that Mr. Zenon was killed in the course of that armed robbery.

Having determined there was sufficient evidence to affirm the verdict of the jury, we find no valid ground for the trial court to have granted the defendant’s Motion for Post Verdict Judgment of Acquittal and/or Alternatively For a New Trial. We find no error in the denial of these motions.

In his third assignment of error the defendant argues the trial court should have granted mis motion for a mistrial because of" improper statements by the prosecutor. Defense counsel moved for a mistrial during closing arguments, arguing the state | isimpermissibly commented on the defendant’s failure to testify and made an improper reference to a possible plea bargain. After hearing argument on the motion, the trial court denied the motion.

Louisiana Code of Criminal Procedure Article 775 provides in pertinent part:

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.

Louisiana Code of Criminal Procedure Article 770 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by a judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense.

We have reviewed the closing argument by the state. We find any references made by the state as to what the defendant did or did not say were all references to the statements given to the Lafayette Police which were admitted at trial. The state made no reference to the fact the defendant did not testify on his own behalf. The trial court did not err by denying a mistrial on this ground.

The defendant further objected to remarks made during rebuttal argument that referenced a possible plea bargain that had been offered to the defendant. During closing arguments defense counsel made the following statement.

And I almost couldn’t believe it when I heard a few minutes ago, when Mr. Johnson said no, he wouldn’t deal with a homicidal killer. But they did, didn’t they? They cut a deal with him. They allowed him to plead guilty to a lesser offense of manslaughter in return for a fixed sentence. So then guess what? Vince Moore, this homicidal maniac, described in exactly those terms by the D.A., will someday be eligible for parole, and yet the ...
J^MR. JOHNSON: Your Honor, may we approach the bench? [THERE WAS A DISCUSSION AT THE BENCH BETWEEN • THE COURT AND ALL COUNSEL.]
BY MR. BRAZEE: [Continuing] And yet, the way Scott is charged, if you find him guilty of being a principal to second degree murder, it’s life imprisonment with no eligibility for parole, ever. Is there any justice in that?

On rebuttal argument, the prosecutor discussed the plea agreement with Vince Moore and then stated as follows:

So does that mean Scott did not get an equal opportunity? Scott made the choice to let you make the choice of whether or not he was involved in second degree murder. We didn’t have to be here today. Scott had an alternative; Scott chose not to take it. And in not taking it, Scott’s lawyers want you to set it right for Scott. That’s not your job
Later in the argument he argued:
“Ladies and gentlemen, they want you to throw your common sense and reason out the window. They want you to have sympathy for Scott because Scott helped me to convict Vince Moore, and in having sympathy for him, mandate that you give him a lesser sentence than Vince Moore. And maybe that’s right, but that’s something you have to decide. But Scott had that opportunity. Scott could have given himself less. Scott didn’t have to put this case in your lap. And because Scott chose to do that, you didn’t have to feel sorry for him ...”

A contemporaneous motion for a mistrial was made by defense counsel. After hearing argument the trial court denied the motion.

Louisiana Code of Criminal Procedure Article 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

The state argued to the trial court that the defendant opened the door for argument pertaining to a possible plea agreement by suggesting in closing argument 117that Vince Moore was given an opportunity to plead to a lesser offense while the defendant was not. The state argued it had the right to respond to this argument. We agree. On rebuttal, the state had the right to answer the defendant’s argument. State v. Castille, 590 So.2d 755 (La.App. 3 Cir.), writ denied, 597 So.2d 1025 (La. 1992); State v. Smith, 445 So.2d 521 (La. App. 3 Cir.), writ denied, 449 So.2d 1346 (La.1984).

Even if the comment by the prosecutor was considered improper rebuttal, the court must be thoroughly convinced that the remarks influenced the jury and contributed to the verdict before a case will be reversed on the grounds of improper argument. State v. Barrow, 410 So.2d 1070(La.), cert. denied, 459 U.S. 852, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982); State v. Jarman, 445 So.2d 1184 (La.1984). The trial court, after hearing argument by counsel, declined to grant the mistrial. After reviewing the record as a whole, and the arguments of counsel, we are not convinced that the prosecutor’s remarks, made in response to defense counsel’s arguments, influenced the jury or contributed to the verdict. We find no error in the trial court’s denial of the motion for a mistrial. This assignment of error lacks merit.

In the defendant’s fourth assignment of error, the appellant argues that the trial judge erred by allowing Herbert Zenon to testify after he violated the rule of sequestration. During the course of the trial, the trial court brought Mr. Zenon into the court room and questioned him on the record as to whether he had violated the rule of sequestration. The trial court established that he had not discussed his testimony or the facts of the case with anyone. The trial court admonished Mr. Zenon not to discuss anything about the case with anyone. The trial court clearly acted properly and within its discretion by admonishing the witness. There was no | -isobjection to the court’s actions by defense counsel. Mr. Zenon was later called as a witness. There was no request by defense counsel at anytime that his testimony be excluded because of a violation of the sequestration order. The defendant did object to certain questions posed to Mr. Zenon on the basis that his response would necessarily be hearsay. That objection was sustained by the court. The objection had nothing to do with whether Mr. Zenon should have been allowed to testify. No such objection was ever made. This assignment of error lacks merit.

In his .final assignment of error, the defendant argues the trial judge erred by not replacing Juror # 150, Joseph Floyd Zeno, when presented with evidence of the appearance of impropriety and bias on his part. It is clear from the record that the court was presented no evidence of any bias on the part of Mr. Zeno. The court was presented with an unsubstantiated rumor that Mr. Zeno might somehow be related to the victim. The source of the rumor was never made clear. The court properly questioned Mr. Zeno, established the rumor was untrue, and that there was no bias or prejudice on Mr. Zeno’s part in any regard. This assignment of error lacks merit.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two.

The language of La.Code Crim.P. art. 873 requires a delay of at least twenty-four hours between the denial of a motion for new trial or a motion in arrest of judgment and sentencing. Court minutes indicate the defendant’s Motion for Post Verdict Judgment of Acquittal and Alternatively, for a New Trial was denied just prior to his sentencing. There is no indication in the minutes that the defendant waived the sentencing delay, but the sentencing transcript is not contained in the 11qrecord. However, any error would be harmless as the defendant received a mandatory life sentence. See State v. Porter, 99-1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115; State v. Williams, 617 So.2d 557 (La.App. 3 Cir.), writ denied, 623 So.2d 1331 (La.1993).

Second, the defendant was not informed of the two-year time limit for filing post-conviction relief as required by La. Code Crim.P. art. 930.8. Thus, the trial court should be directed to inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of the proceedings. See State v. Fontenot, 616 So.2d 1353 (La.App. 3 Cir.), writ denied, 623 So.2d 1334 (La. 1993); State v. Courtney, 99-1700 (La.App. 3 Cir. 5/3/00), 761 So.2d 112.

DECREE

The defendant’s conviction is affirmed. The case is remanded to the trial court solely for the purpose of instructing the trial court to comply with La.Code Crim.P. art. 930.8.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

THIBODEAUX, J., dissents and assigns written reasons.

| THIBODEAUX, J.,

dissenting.

This case at best is one of circumstantial evidence. “When circumstantial evidence is used to prove the commission of the offense, La.Rev.Stat. 15:438 requires that ‘assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.’ ” State v. Bridgewater, 00-1529, p. 2 (La.1/15/02), 823 So.2d 877, 909-910 (on rehearing), cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). The scenario demonstrated by the State’s evidence falls short of proving beyond a reasonable doubt either of the State’s theories: (1) that Defendant specifically intended to kill the victim, or (2) that Defendant intended to participate in, aid, or abet an armed robbery, during which the victim was killed. Similarly, the evidence does not prove Defendant intended to participate in a carjacking, during which the victim was killed.

The facts advanced by the State demonstrate that Defendant could well have intended to consummate an illegal drug transaction, with no intent to rob or kill the victim. The evidence adduced by the State did not exclude such a hypothesis. 1 gSignifícantly, the lone eyewitness testified Defendant appeared to be shocked when the shooting occurred, while the shooter appeared to be enraged.

In Bridgewater, a jury convicted defendant of first degree murder, and he received a death sentence. On review, the supreme court quickly disposed of the theory that the defendant actually shot any of the victims. Proceeding to the theory that he was a principal to specific-intent felony-murder, the court observed:

As a general rule, “liability [as a principal] will not flow merely from a failure to intervene;” however, “silence in the face of a friend’s crime will sometimes suffice when the immediate proximity of the bystander is such that he could be expected to voice some opposition or surprise if he were not a party to the crime.” 2 Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law § 6.7(a)(1986)(Emphasis supplied). Defendant’s statement that he was in the Beaugh’s garage when the fatal shots were fired places him outside the “immediate proximity” of the double homicide and inside the general rule precluding a finding of liability as a principal based solely on a passive failure to intervene in a friend’s criminal acts.
Our finding that the evidence is insufficient to establish defendant’s liability as a principal is buttressed by the state’s failure to present any evidence establishing defendant’s specific intent to kill. No one testified that defendant had anything more than a broken BB gun; indeed, as noted, it was defendant who conceded that much. Ms. Menard, the neighbor, observed no weapons on either of the suspicious pair. This lack of evidence that defendant even was armed with a functional weapon reduces the state’s circumstantial case to a request that the jury engage in speculation based merely upon “guilt by association.” Pierre, 93-0893 at p. 6, 631 So.2d at 429.
Accordingly, we reject the state’s contention that the jury reasonably could have found defendant liable as a principal based merely on his failure to prevent Jacobs from committing the double homicide. We hold that the state failed to exclude a reasonable hypothesis of innocence — that defendant was merely present — and, for that reason, we reverse defendant’s conviction of first degree murder and death sentence.

Id. at 891.

|3In State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, the defendant was charged with second degree murder in connection with the rape of a thirteen-year-old victim. The jury returned a lesser verdict of manslaughter.

In reversing the jury’s verdict, the supreme court stated:

The trial court properly instructed the jury according to these principles and jurors labored long and hard over the course of two days to apply them. In the end, however, rational jurors could only speculate about the defendant’s role in Alexander’s death. To the extent that the defendant could directly implicate Jones in the rape and murder of the victim, Jones’s advice to him in the Avo-yelles Parish Prison not to talk with Thomasie may have signalled nothing more than an attempt to influence and silence an eyewitness to the crime. The defendant’s admissions to Thomasie placed him on the scene, and the details he provided about the rape of Alexander and the bludgeons used to kill him spoke for the reliability of those statements. Nevertheless, only Thomasie’s notes made on- January 7, 1992, provided any evidence that the defendant had been inside the abandoned house when the victim was raped. Thomasie’s trial testimony contradicted those notes, and all of the evidence available to the jury placed the defendant in the van at the time the victim was brought outside wrapped in what became a shroud.
Jurors had no direct or circumstantial evidence that the defendant counseled or procured the others to kill Alexander, or that he participated in the actual murder. Thomasie’s testimony made clear that the defendant used the all-inclusive “they” even when referring in context to Courtney and Jones. Jurors knew from the extent of his self-contradiction and the testimony of David Antoine and Pierre Taylor that Jones lied in his trial testimony when he denied any involvement in the murder. Even if jurors disobeyed the court’s cautionary instructions about the proper use of Jones’s prior inconsistent statements, however, they could find no reliable answers in those statements about the degree of the defendant’s involvement, if any. Jones testified at Hill’s trial that the defendant opened the back door of his van when Hill and Courtney emerged from the abandoned house with the victim’s body. In his statement of August 31, 1991, which broke the case, however, Jones indicated that Hill was the one who opened the rear door and that the defendant had remained in the front seat of the van, staring fixedly out of l4the windshield while the victim was then beaten to death on old Highway 1.
The due process standard of review in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), preserves the role of the jury as the factfin-der in the case but it does not allow jurors “ ‘to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.’ ” State v. Mussall, 523 So.2d 1305, 1311 (La.1988) [quoting 2A C. Wright, Federal Practice & Procedure, Criminal 2d § 467 (2d ed.1982) ]; see also State v. Lubrano, 563 So.2d 847 (La.1990). A jury’s finding that the accused aided and abetted in the commission of the crime therefore “cannot be ‘mere speculation based upon guilt by association.’ ” State v. Schwander, supra, 345 So.2d at 1175 [quoting State v. Williams, 310 So.2d 513, 515 (La.1975) ]. The evidence at trial did not prove beyond a reasonable doubt that the defendant specifically intended to kill the victim so as to make him a principal in the crime.

Id. at 428-29.

State v. Peters, 553 So.2d 1026 (La.App. 4 Cir.1989), a first degree robbery case, while superficially similar to this case, is instructive. Language in the court’s Jackson review upheld the defendant’s conviction as a principal because he had been seen in the gunman’s company before the crime, approached the scene with the gunman and did not intervene, got into the victims’ truck with the gunman, and was still in the truck with the gunman when police apprehended them approximately an hour after the offense. However, the ease is distinguishable because the defendant acted as a lookout and distracted one of the victims. Id. at 1027-28. In the present case, the State theorized Defendant distracted the victim, as the two fatal bullets entered near the back of the victim’s skull. However, the State offered no proof Defendant acted to make the victim turn his head.

Also, State v. Johnson, 440 So.2d 197 (La.App. 3 Cir.1988), writ denied, 444 So.2d 1240 (La.1984), is worth noting. This court reviewed the defendant’s conviction as a principal to armed robbery of a curb market. Defendant |Bdid not enter the store during the robbery, but he entered it with the two active participants in the robbery, three or four times before the offense. A witness saw him with the two accomplices, lurking behind some bushes near the store, less than thirty minutes before the robbery. Shortly after the robbery, he retrieved some of the accomplices’ clothing from the bushes and was seen running near the store with something in his arms. He took the clothing to one of the accomplices’ homes, then drove the other men to another location. Id. at 198-99, 201. Johnson is distinguishable from the present case because of the evidence regarding the defendant’s activity with the active participants before the robbery.

In surveying other jurisprudence related to the law of principals, I note that surprise, or the lack thereof, is sometimes mentioned as a factor in determining whether a defendant is a principal. See, e.g., Bridgewater, 823 So.2d at 891. As already noted, the lone eyewitness in this case stated Defendant appeared surprised by Moore’s shooting the victim. In contrast, the shooter, Moore, appeared to be enraged.

More generally, courts reviewing principals cases look to evidence of actions preceding a given offense, during the offense, and after the offense. Often, the state is able to show a defendant helped plan the offense at issue, or knew of the plan before the offense, and elected to participate. See, e.g., Peters, 553 So.2d 1026, and Johnson, 440 So.2d 197. In situations of second degree murder, pursuant to armed robbery, the state can often at least show that a defendant accompanied the eventual killer, while knowing the other person was armed.

In the present case, the State proved little regarding events before the shooting. Although the State showed Defendant paged the victim shortly before the offense, the Defendant’s statement explained that he contacted the victim to buy | fidrugs. The State also showed the Defendant accompanied the shooter to the scene of the crime although no evidence was introduced to show his knowledge of the events about to unfold or even knowledge that Moore was armed.

Regarding what happened during the offense, the State proved Defendant got into the car and left with Moore immediately after the shooting. However, as already noted, the same eyewitness who provided the above information also acknowledged that Defendant looked surprised when Moore shot the victim. At best, what the State presented did not advance its case.

What the State proved regarding events after the shooting was more detailed, although still unclear on some points. After the offense, Defendant shared in the proceeds, as he acknowledged smoking some of the marijuana Moore took from the victim. Sharing in contraband can be an indication that a defendant acted as a principal. State v. LeBlanc, 94-0282 (La.6/3/94), 637 So.2d 489. However, in LeBlanc, the prosecution also presented evidence regarding the various defendants’ actions before and during the offense at issue. In LeBlanc, the defendant not only shared in the proceeds, but also was present in the getaway car, and later bragged about his participation. Thus, the court upheld his armed robbery conviction and sentence. However, the court set aside his attempted murder conviction as the evidence did not prove specific intent.- The short opinion mentioned the murder was “apparently spontaneous,” but did not elaborate. Id. at 489-90.

Similarly, the cases of State v. [C.] Williams, 01-1650 (La.11/10/02), 831 So.2d 835; State v. Logan, 36,042 (La.App. 2 Cir. 6/14/02), 822 So.2d 657; State v. Magee, 00-2816 (La.App. 1 Cir. 10/10/01), 809 So.2d 452; State v. [M.] Williams, 34,359 (La.App. 2 Cir. 5/9/01), 786 So.2d 203, writ denied, 01-2275 (La.5/10/02), 815 So.2d 835; State ex rel. K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716; State v. [E.] Williams, 33-201 (La.App. 2 Cir. 5/15/00), 758 So.2d 1003, writ denied, 00-1784 (La.4/27/01), 791 So.2d 111; State v. Shaw, 27,892 (La.App. 2 Cir. 4/3/96), 672 So.2d 237 and State v. Stokes, 26,003 (La.App. 2 Cir. 6/22/94), 639 So.2d 395, writ denied, 94-1880 (La.11/11/94), 644 So.2d 387, all considered defendants’ act of sharing in proceeds or contraband from an offense as a factor in the La.R.S. 14:24 analysis. However, as in LeBlanc, each of these cases included evidence of the various defendants’ involvement before and/or during the offenses at issue.

As already noted, the present case lacks evidence Defendant knew beforehand that a murder, robbery, or carjacking was to take place. During the offense, he showed signs of surprise; immediately after the shooting, he got into the victim’s car and left with the shooter. This is the sum of the evidence regarding Defendant’s actions before and during the offense. Therefore, it is easily distinguishable from the cases just cited.

Some jurisprudence also considers such post-offense factors as a defendant’s failure to aid the victim, or to call the police. See, e.g., State v. Hayes, 01-736 (La.App. 5 Cir. 12/26/01), 806 So.2d 816, writ denied, 02-0263 (La.10/25/02), 827 So.2d 1169; State v. Saylor, 01-451 (La.App. 5 Cir. 11/27/01), 802 So.2d 937, writ denied, 01-3406 (La.10/04/02), 826 So.2d 1122; State v. Cazenave, 00-183 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151. However, these cases are distinguishable because, in each of them, there was direct evidence the defendant acted as a getaway driver. Thus, unlike any of the cases cited thus far, the evidence in this case focused upon Defendant’s actions after the offense.

As already noted, the evidence in this case supports a logical inference that Defendant intentionally aided in the hiding of the victim’s car and body. Since | sLaga’s testimony indicated the victim was still alive when the fire began, the question arises whether Defendant could be guilty of felony-murder pursuant to the victim’s burning death. Neither of Defendant’s statements demonstrated that he knew Moore would attempt to destroy the car. The circumstances indicate Defendant knew Moore was going to conceal the evidence, but not that Moore was going to burn it. There is no evidence Defendant manifested an intent to kill.

As to Moore, the shooting and subsequent burning formed one continuous transaction; the facts indicate he intentionally shot the victim, then made an effort to destroy the evidence. See, e.g. State v. Goodley, 01-0077 (La.6/21/02), 820 So.2d 478. However, as to Defendant, it would not be one continuous offense because he was not proven to be a principal to the initial offense, i.e., the shooting and armed robbery. Defendant did not form criminal intent until after the shooting/robbery. Thus, the most he would be guilty of would be principal to a killing while he was acting as an accessory after the fact; in other words a felony-manslaughter. However, this was not the crime charged, nor argued to the jury.

Further, accessory after the fact would not have been available as a responsive verdict. La.Code Crim.P. art. 814 does not list accessory as a responsive verdict to murder or manslaughter. Accessory is defined by La.R.S. 14:25, which states in pertinent part:

An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.

Considering the definition of a principal, the elements of an accessory charge do not present a lesser-included grade of a charge as a principal. Accessory clearly does not arise until after a felony has been committed; thus, it is an entirely |9separate offense, rather than a lesser grade of the offense. For this reason, a reduced verdict of accessory after the fact would not have been appropriate below, and is not available on appeal. The Louisiana Supreme Court has observed:

Defendant was charged as a principal to the crime of second degree murder committed during an armed robbery. The only responsive verdicts to second degree murder are guilty, guilty of manslaughter and not guilty. Accessory after the fact is a separate and distinct crime. While the definition of principal is relevant to the crime charged, that of accessory after the fact is not.

State v. Stacy, 96-0221, p. 5 (La.10/15/96), 680 So.2d 1175, 1178.

Thus, the victim’s death in the burning car would not form the basis for a conviction in this case.

For the reasons discussed, the State failed to prove the elements of the crime beyond a reasonable doubt. Thus, the conviction and sentence should be vacated and set aside.

For the foregoing reasons, I dissent.