author: | ¶ ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Brandon CHEATHAM.
    No. 2004-KA-0095.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.

      Eddie J. Jordan, Jr., Distinct Attorney, Val M. Solino, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Rudy W. Gorrell, Jr., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   | ¶ ROLAND L. BELSOME, Judge.

STATEMENT OF THE CASE

On September 9, 2003 the State filed a bill of information charging the appellant Brandon Cheatham with one count of possession of cocaine, a violation of La. R.S. 40:967. He was arraigned and entered a not guilty plea on September 19, 2003. On October 10, 2003, after hearing testimony, the trial court denied the appellant’s motion to suppress evidence. On October 17, 2003 the appellant withdrew his former plea of not guilty and entered a plea of guilty, reserving his right to appeal the adverse ruling on the motion to suppress the evidence pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

STATEMENT OF THE FACTS

On August 26, 2003 Officers Ernest Luster and Channing Branch of the N.O.P.D. Second District narcotics squad were on pro-active patrol in the Hollygrove area of New Orleans. The officers testified to stopping a vehicle at the intersection of Leonidas and Palm Streets because the driver was not wearing a seat belt. The appellant was the only other occupant of the vehicle; he was seated in the front passenger seat.

The officers obtained identification from both occupants and ran their names through the Motion inquiry system. The computer reflected an outstanding warrant from Harahan for the appellant for a “miscellaneous violation.” The officers contend that after confirming the warrant’s validity, they removed the appellant from the car and handcuffed his arms behind his back.

Once handcuffed Officer Branch conducted a pat down search of the appellant. Officer Branch found over $1800 in cash in the appellant’s front pocket. Officer Branch testified that he removed the money from the appellant’s pocket and began counting it. At that point, according to Officer Branch, the appellant, while handcuffed, fled down Palm Street, turned onto another street and then hopped a fence into a yard, where the officers were able to apprehend him.

When the appellant was returned to the police vehicle, Officer Luster resumed the interrupted search. Officer Luster discovered a clear plastic bag containing approximately forty-three rock-like substances in the appellant’s back pocket, which were later identified as crack cocaine. The appellant was arrested for possession with the intent to distribute cocaine.

At the motion to suppress hearing, Officer Luster testified that even though the sole basis for the stop of the vehicle was because the driver was not wearing a seat belt, no citation was issued to the driver, nor was he arrested. Officer Luster could not recall the driver’s name and admitted that the appellant’s name was run through the computer before the driver’s name.

Despite the fact that Officer Luster stated he was in the police vehicle doing a computer check on the driver while his partner performed the initial pat down, he claimed that once Officer Branch removed the currency from the appellant’s pocket, it was counted and the appellant was made to sign a receipt for the money. This signing was supposedly done while the appellant was handcuffed. Officer Luster was unable to produce the receipt at the hearing. According to Officer Luster, it was after the appellant signed or tried to sign the receipt that he began to run.

Officer Branch, who placed the handcuffs on the appellant and conducted the initial pat down search, denied that the appellant was given a receipt for the currency because the money was evidence. He stated that he stopped the pat down to count the money. He further stated that while the money was being counted the handcuffed appellant “broke out running.” His account of the chase and apprehension of the appellant was consistent with Officer Luster’s version of those events. Once the appellant was apprehended the earlier search was resumed. It was at that time that the crack cocaine was discovered and seized by Officer Luster.

DISCUSSION

The sole issue on appeal is whether the trial court erred when it denied the motion to suppress the evidence. The appellant in his brief argues that the officers in this case stopped the vehicle in which he was an occupant solely on a pretext. The United States Supreme Court has held that a stop for a traffic violation, even if done with another subjective motive, is still valid if the traffic violation actually occurred. See Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), discussed at length in State v. Shapiro, 98-1949, pp. 6-7 (La.App. 4 Cir. 12/29/99), 751 So.2d 337, 340-41.

There was nothing presented at the hearing to refute the fact that the driver was not wearing his seat belt. Further, a passenger of a vehicle stopped for a traffic violation can be ordered from the vehicle for the safety of the officers. See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Also in State v. Landry, 588 So.2d 345 (La.1991), the court found that simply asking the passenger for identification after he had been removed from the vehicle was reasonable in light of the overall circumstances.

Nevertheless, the appellant asserts that the officers here gave no testimony to indicate that they suspected the driver or appellant of criminal activity and could not give an explanation for their decision to run the appellant’s name through the computer, especially before they ran that of the driver.

The appellant also argues that the testimony of the officers was contradictory and improbable, in particular the testimony that, while handcuffed behind his back, he allegedly signed a receipt and then ran two blocks. He notes that the officers testified that the currency was seized and was being counted by one officer while the other was still in the police vehicle running the name of the driver.

However, the appellant does not contend in his brief that there was not an outstanding warrant for his arrest, nor did he make that allegation at the motion hearing. Instead, he contends that the trial court should not have followed State v. Hill, 97-2551 (La.11/16/98), 725 So.2d 1282, because to do so allowed the police in this case to circumvent the purpose of the exclusionary rule, which is to deter police misconduct.

At the hearing the trial judge made it clear that, even if he believed that the stop of the vehicle was not well-founded, he had no choice but to uphold the search pursuant to the Louisiana Supreme Court’s decision in Hill. In Hill, two police officers received a general tip of narcotics activity. The officers observed two men, one of whom was the appellant, standing in front of an abandoned building. When the men saw the officers, they began to walk away in different directions. The officers initiated a conversation with the appellant and his companion and frisked them for weapons, finding nothing. While the field interview was proceeding, the computer check of Hill’s name revealed two outstanding warrants. He was arrested on the warrants, and the subsequent search incidental to arrest resulted in the seizure of a crack pipe.

The trial court granted the appellant’s motion to suppress the crack pipe, and this Court affirmed, finding that, for the arrest to be valid, the initial detention must also be valid. Because there was no reasonable suspicion to stop the appellant, the ensuing arrest pursuant to the outstanding warrants was unlawful. State v. Hill, 97-1012 (La.App. 4 Cir. 9/17/97), 700 So.2d 551.

On review, the Supreme Court reversed, finding that the “attenuation doctrine” exception to the exclusionary rule applied. The court relied extensively on Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416, in which the court enunciated a multi-factor test to consider whether evidence impermissibly seized should be suppressed. The court noted:

The primary considerations under Brown are: (1) the temporal proximity of the illegality and the acquisition of the evidence to which instant objection is made; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603, 95 S.Ct. at 2262, 45 L.Ed.2d at 427; State v. Scott, 389 So.2d at 1288. Additionally, in considering whether the evidence should be suppressed, Brown requires us to weigh each consideration in light of the policies behind the Fourth Amendment. [Footnote omitted.]

Hill, pp. 3-4, 725 So.2d at 1284. The court then applied the Brown factors, conceding that while there was no temporal break, the computer check which showed the outstanding arrest warrant was an intervening circumstance sufficient to dissipate the taint of the initial impermissible stop. The court specifically rejected a “but for” causation test which would find the evidence inadmissible because the police learned the appellant’s name only during the illegal stop.

The court also analyzed the last factor under Brown, the flagrancy of the police misconduct. The court stated:

To this end, we note that the testimony of officers Elsensohn and McCabe at the suppression hearing did not reveal a “quality of purposefulness” in their conduct, which consisted of performing a Terry stop and frisk on an unknown individual whom they observed standing about on a street corner; nor is there any indication that the officers’ conduct was “calculated to cause surprise, fright, or confusion.” Brown, 422 U.S. at 605, 95 S.Ct. at 2262, 45 L.Ed.2d at 428. Thus, even if the Terry stop exceeded the officers’ authority, the police conduct was not particularly egregious and did not amount to a flagrant abuse of police power. To the contrary, under the particular facts of this case, we ... find that, once the officers knew of the outstanding arrest warrants, they would have been derelict in their duty not to arrest the appellant. The officers’ conduct in this case does not rise to the level of flagrant misconduct within the meaning of the jurisprudence, yet the gravity of the government’s interest in apprehending wanted individuals is overpowering. Because the exclusionary rule is designed to prevent the use of evidence tainted by flagrant police misconduct in order to deter law enforcement practices volatile of the Fourth Amendment, we find that considering the circumstances of this case, suppression of the disputed evidence would not serve the policies behind the exclusionary rule, nor contravene the protections provided by the Fourth Amendment.

Hill, pp. 9-10, 725 So.2d at 1287.

As discussed above, the court in Hill acknowledged that the purpose of the exclusionary rule, to deter flagrant police misconduct, is a relevant consideration. In the instant case, the testimony to a significant degree certainly borders on a situation where it can be argued that the officers were engaging in a practice designed to circumvent Fourth Amendment principles.

The officers testified that they were narcotics officers on pro-active patrol who elected to stop a vehicle solely because the driver was not wearing a seat belt. Yet, they were not concerned about the driver at all if the Court accepts the testimony of Officer Luster. He claimed that they ran the passenger’s name through the computer before that of the driver.

It is certainly possible that the trial court could have concluded that the narcotics officers in this case were consciously choosing to manipulate the most minor of traffic offenses by the unknown driver into a confrontation wherein they could possibly find some evidence of criminal activity, especially in light of the inconsistencies in the officers’ testimony.

However, the determination of credibility of witnesses is within the sound discretion of the trial court, and, like all questions of fact, is entitled to great weight and will not be disturbed unless clearly contrary to the evidence. State v. Finch, 31,888 (La.App. 2 Cir. 5/5/99), 733 So.2d 716 citing State v. Vessell, 450 So.2d 938 (La.1984). This courts authority to review questions of fact in criminal cases is limited to sufficiency of the evidence evaluations and does not extend to credibility determinations made by the trier of fact. Finch citing La. Const. art. 5, § 10(B); State v. Butler, 30,798 (La.App. 2 Cir. 6/24/98), 714 So.2d 877.

“In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact is sufficient support for the requisite factual conclusion.” Finch citing State v. Thomas, 30,490 (La.App. 2 Cir. 4/8/98), 711 So.2d 808. We must assume that the Trial Court found at least one of the officers testimony as credible when deciding to deny the motion to suppress. The Trial Court never gave any indication that it doubted that the officers observed the seat belt violation, which initiated the stop that ultimately led to the discovery of an outstanding warrant for the appellant’s arrest. The search subject to that arrest resulted in the discovery and seized narcotics.

Thus, considering the sanctioning of pretext traffic stops by the court in Whren, it appears that the officers in this case legitimately combined the stop of the vehicle for a minor traffic violation with the attenuation doctrine followed in Hill to seize the evidence in this case.

CONCLUSION

The trial court is vested with great discretion when ruling on a motion to suppress. State v. Scull, 93-2360, p. 9 (La.App. 4 Cir. 6/30/94), 639 So.2d 1239, 1245. Considering Whren and Hill, it appears that the Trial Court did not err in denying the motion to suppress the evidence. Therefore, the Trial Court’s ruling is hereby affirmed.

      . Even if the trial court had not believed that the officers saw a seat belt violation, as long as the warrant existed, Hill would apply. See State v. Perez, 99-2063 (La.App. 4 Cir. 9/15/99), 744 So.2d 173.


source: Caselaw Access Project

author: MAX N. TOBIAS, Jr., Judge.

license: Public Domain

text:
    Darryl N. LEWIS v. MARSHALL BROS. LINCOLN-MERCURY, INC., et al.
    No. 2004-C-0507.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.

      Matthew K. Brown, Sullivan, Stolier & Resor, New Orleans, LA, for Plaintiff/Relator.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, Jr., and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, Jr., Judge.

We grant the application for supervisory writs of the plaintiff/appellant, Darryl N. Lewis (“Lewis”), to consider whether the trial court erred in granting the exception of venue filed by the defendant/respondent, Ford Motor Company (“Ford”). For the following reasons, we affirm the trial court’s judgment.

Lewis alleges that he purchased a new 1999 Lincoln Navigator SUV manufactured by Ford from co-defendant, Marshall Bros. Lineoln-Mercury, Inc. (“Marshall Bros.”). He was dissatisfied with the vehicle and sought repairs on numerous occasions, apparently from Marshall Bros. Although Marshall Bros, made numerous attempts at satisfying Lewis, they were unsuccessful, concluding, after consultation with Ford, that the problem of which Lewis complained was part of the design of the vehicle that could not be corrected.

Lewis, a domiciliary of Orleans Parish, then filed his suit against both Ford and Marshall Bros, in Orleans Parish, alleging a redhibitory defect in the vehicle. Ford is a non-Louisiana corporation with its principal Louisiana business establishment in Louisiana being located in Jefferson Parish and its registered agent located in East Baton Rouge Parish. Marshall Bros, is a non-Louisiana corporation with its principal office, Louisiana registered business office, and registered agent all located in Jefferson Parish. To Lewis’ petition, Ford filed an exception of venue, asserting that the only proper venue was Jefferson Parish pursuant to La. C.C.P. art. 42 or 76.1. Ford further asserted that Normand v. Ford Motor Co., Inc., 96-725 (La.App. 3 Cir. 12/18/96), 685 So.2d 602, establishes that the only proper venue for Lewis’ suit is Jefferson Parish.

Contrariwise, Lewis argued that venue was proper in Orleans Parish under La. C.C.P. art. 74, because a suit alleging redhibition sounds in both tort and contract, and therefore venue was proper where damages were sustained, i.e., Orleans Parish. Lewis further asserted that Reeves v. Dixie Brick, Inc., 403 So.2d 792 (La.App. 2d Cir.1981), supports his position. The trial court, following oral argument, sustained the exception and transferred the case to the Jefferson Parish. From that decision, this timely writ application by Lewis ensued.

Article III, § 15(A) of the Louisiana Constitution provides that a bill “shall be confined to one object ... [and] shall contain a brief title indicative of its object.”

La. C.C.P. art. 76.1 was enacted by Act 217 of 1991, which act reads in its entirety as follows:

To enact R.S. 9:2779 and Code of Civil Procedure Art. 76.1, relative to contracts; to declare public policy regarding clauses in construction contracts, subcontracts, and purchase orders on public and private works relating to the choice of laws governing their interpretation or to venue for resolving disputes arising thereunder; to provide for the invalidity of certain contract provisions as contrary to public policy; to provide exceptions; to provide venue in actions on contracts; and to provide for related matters.
Be it enacted by the Legislature of Louisiana:
Section 1. R.S. 9:2779 is hereby enacted to read as follows: § 2779. Construction contracts, subcontracts, and purchase orders; certain provisions invalid
A. The legislature finds that, with respect to construction contracts, subcontracts, and purchase orders for public and private work projects, when one of the parties is domiciled in Louisiana, and the work to be done and the equipment and materials to be supplied involve construction projects in this state, provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state or requiring their interpretation to be governed by the laws of another jurisdiction are inequitable and against the public policy of this state.
B. The legislature hereby declares null and void and unenforceable as against public policy any provision in a contract, subcontract, or purchase order, as described in Subsection A, which either:
(1) Requires a suit or arbitration proceeding to be brought in a forum or jurisdiction outside of this state; rather, such actions or proceedings may be pursued in accordance with the Louisiana Code of Civil Procedure or other laws of this state governing similar actions.
(2) Requires interpretation of the agreement according to the laws of another jurisdiction.
C. The provisions of this Section apply to contracts, subcontracts, and purchase orders, as described in Subsection A, entered into on or after the effective date of this Act.
D. Notwithstanding any other provisions of law to the contrary, the provisions of this Section shall not apply to negotiated labor contracts.
Section 2. Code of Civil Procedure Art. 76.1 is hereby enacted to read as follows:
Art. 76.1. Action on contract
An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.

It is apparent, in view of the title to Act 217, that article 76.1 was intended to apply to construction contracts and not all contracts of every nature. In light of Lewis’ specific claims against Ford and Marshall Bros., we find that article 76.1, being applicable only to construction contracts, is inapplicable to the case at bar and does not support Ford’s contention that venue is proper in Jefferson Parish. A careful review of Lewis’ petition discloses that Lewis alleges that he was provided with marketing materials and sales information promoting the Lincoln Navigator as a “premium luxury vehicle, with an extremely smooth ride.” He does not allege where he received this information. He further alleges that immediately after purchase, he noticed “roughness and shuddering in the vehicle”, which Marshall Bros, “attempted to repair on numerous occasions” before Ford determined that the asserted problem “is a normal operating characteristic of the vehicle.” Lewis does not assert that any of these things happened in Orleans Parish.

We note that Louisiana law on redhibition, La. C.C. art. 2520 et seq., is found in Chapter 9 of Book III, Title VII of the Louisiana Civil Code; Title VII of Book III relates to “Sale,” which sounds in contract, not tort. By contrast, Louisiana law on tort is primarily set forth in Chapter 3 of Book III, Title V of the Louisiana Civil Code, relative to “Offenses and Quasi Offenses.” Offenses and quasi-offense sound in tort and Title V relates to “Obligations Arising without Agreement.” In the case at bar, Lewis alleges an agreement, i.e., contract, when he asserts that the vehicle that he purchased was promised to have a quality that it did not in fact have. All other allegation of Lewis’ petition relate to a breach of contract, which are governed by Chapter 1, et seq. of Book III, Title IV of the Louisiana Civil Code. Although a claim of redhibition may sound in both contract and tort, such as in Reeves v. Dixie Brick, Inc., supra, a plaintiff must allege sufficient facts in the petition to establish that damages occurred in a particular location so that venue might be proper in that parish in which the damage occurred. See, e.g., Metcalf v. Pool & Home Care, 467 So.2d 610 (La.App. 3d Cir.1985); Rachal v. Ford Motor Co., 96-160, p. 2 (La.App. 3 Cir. 6/5/96), 676 So.2d 671, 673. We find no such allegations or evidence presented at the trial of the exception. If such had been the situation in the case at bar, Orleans Parish might be a proper venue.

We conclude from the facts as alleged by Lewis in his petition that his claim arises from things that occurred solely in Jefferson Parish. Therefore, venue was proper solely under La. C.C.P. art. 42, and Jefferson Parish was the sole venue in which Lewis could commence his suit on the facts alleged.

The trial court did not err and we affirm the judgment ordering that the suit be transferred to the Twenty-Fourth Judicial District Court for the Parish of Jefferson for further proceedings.

SUPERVISORY WRIT GRANTED; JUDGMENT AFFIRMED.

      . La. C.C.P. art. 42 provides in pertinent part: “The general rules of venue are that an action against: ... (4) A foreign corporation or foreign limited liability company licensed to do business in this state shall be brought in the parish where its primary business office is located as designated in its application to do business in the state, or, if no such designation is made, then in the parish where its primary place of business in the state is located.”

      . La. C.C.P. art. 76.1 provides: "An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.”

      . La. C.C.P. art. 74 provides in pertinent part: “An action for recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conducted occurred, or in the parish where the damages were sustained.”

      . We do not address the constitutionality of article 76.1 as has been addressed by the Fourteenth Judicial District Court for the Parish of Calcasieu, in suit number 90-6349, entitled “Coastal Oil & Rental Tools, Inc. v. William H. Kenny Consultants, Inc."

      . Louisiana’s “lemon law” relative to motor vehicles, set forth at La. R.S. 51:1941 et seq., sounds in redhibition. The law is silent as to venue.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Derek LANDRY.
    No. 2003-KA-1632.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.

      Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

On November 17, 1994, the grand jury-indicted Derek Landry for the first-degree murder of Lloyd Gonzales, Jr., during the perpetration or attempted perpetration of an armed robbery, a violation of La. R.S. 14:30. Landry was tried by jury, convicted and sentenced to death.

On direct appeal to the Louisiana Supreme Court, Landry’s conviction and sentence were reversed, and the case remanded for new trial on the basis that the appellate record was “so deficient” the Court could not properly review the case. See State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214.

In April 2003, the State re-tried Landry. 'Following a three-day trial, the jury convicted Landry of first-degree murder. After he waived all delays, the court sentenced Landry on April 26, 2003, to life imprisonment pursuant to the jury’s recommendation.

STATEMENT OF FACT

At 7:15 p.m. on September 1, 1994, Officer James Daughtry and his partner, Officer Gordon Hyde, responded to a call of a shooting in the 4400 block of Annette Street. When the officers arrived at the scene, they found one victim, Lloyd Gonzales, Jr., lying in the front doorway of the residence, dead from an apparent gunshot wound to the left side of his face. The officers entered the residence where they found another victim, Lloyd Gonzales, Sr., alive and suffering from an upper body gunshot wound. Officer Daughtry called for medical assistance, notified the homicide division and secured the scene. He spoke to Mrs. Leora Gonzales, the mother and wife, respectively, of the shooting victims, who described the shooter as a light skinned black male wearing plaid shorts, weighing approximately 155 pounds and standing 5'7" to 5'10" tall. Daughtry radioed dispatch with the description, and then canvassed the neighborhood for witnesses.

Detective Joseph Catalonotto led the investigation in this case. He arrived on the scene at approximately 8:00 p.m. Lloyd Gonzales, Jr. was dead in the front doorway. Catalonotto learned that Lloyd Gonzales, Sr. had been shot also and been transported to Charity Hospital. Catalo-notto tried to speak to Mrs. Gonzales; however, she was very distraught. She described the assailant as a black male, medium build and 5'7" to 5'10" in height. Mrs. Gonzales also said that the shooter slipped while pursuing her and possibly injured his right arm. Detective Catalo-notto ordered the crime scene processed, including photographs, collection of blood samples, diagram of the premises, etc.

Five days after the shooting, Catalonot-to compiled a photographic lineup, which Mrs. Gonzales viewed, but she was unable to identify the shooter. NOPD officers arrested the defendant on October 13, 1994 for the first-degree murder of Lloyd Gonzales, Jr. Catalonotto observed the defendant immediately after his arrest, and noted a recent scar or scabbing on the defendant’s right forearm.

On September 9,1994, Detective Catal-onotto compiled a second photographic lineup, which Mr. and Mrs. Gonzales viewed separately. Mr. Gonzales identified a picture of the defendant as the shooter. Mrs. Gonzales made no identification from the photo lineup but said she could identify the shooter if she saw him again.

Mrs. Leora Gonzales recounted the day of the shooting, and testified that she returned home from visiting her mother at approximately 6:00 p.m. She gathered her belongings and exited her vehicle quickly because it was raining. As she did so, the defendant approached her. Thinking she recognized him as a neighbor, she slowed to greet him. As he came closer, however, Mrs. Gonzales realized she did not know the defendant and she became frightened. She ran to her front porch and screamed for help. The defendant followed her but slipped on the front steps, injuring his arm. Mrs. Gonzales ran to the side of the porch where she cowered in the corner. Just then, her son opened the front door. The defendant shot him. Mrs. Gonzales heard the defendant fire a second shot. At that point she curled into a fetal position and waited for the defendant to shoot her. Instead, the defendant grabbed her purse and fled on foot. Mrs. Gonzales embraced her wounded son. When she did, she heard her grandson crying in the house. She entered the house to comfort the child, and discovered her wounded husband. Mrs. Gonzales described her attacker to the police that night. She confirmed her inability to identify anyone from two photographic lineups she viewed but maintained that she told police she could identify the shooter if she saw him again. Prior to the defendant’s first trial, Mrs. Gonzales identified the defendant in court as the man who shot her son and husband. She made the identification as the defendant and other prisoners clad in orange jumpsuits entered the courtroom for motions hearing.

Lloyd Gonzales, Sr. testified that he and his son Lloyd Gonzales, Jr., were at home babysitting a grandchild on the night of the shooting. Mr. Gonzales was upstairs tending the child, while Lloyd, Jr. watched television downstairs. At approximately 6:30 p.m., Mr. Gonzales heard his wife scream. As he descended the stairs, he heard a gunshot. He arrived at the front door and found Lloyd, Jr. dead in the doorway. Mr. Gonzales pushed the front door open and when he did, the defendant shot him in the chest. Because it was still daylight outside, Mr. Gonzales got a good look at the defendant. Mr. Gonzales went back inside and called the police. Following surgery and a six-day hospital stay, Mr. Gonzales returned home. Detective Catalonotto showed him a picture lineup from which Mr. Gonzales identified the defendant as the shooter. Mr. Gonzales recounted sitting in court with his wife in 1994 when she identified the defendant as her assailant and her son’s killer. The defendant entered the courtroom with several other prisoners. Immediately upon seeing the defendant, Mrs. Gonzales identified him to Mr. Gonzales.

Dr. Susan Garcia, an Orleans Parish forensic pathologist, performed an autopsy on the body of Lloyd Gonzales, Jr. She testified that the victim died from a single gunshot wound to the left side of his face. The bullet severed the victim’s brain stem, killing him instantly. Dr. Garcia opined that the killer delivered the fatal shot from a distance of ten to eighteen inches.

NOPD firearms expert Officer Kenneth Leary, Jr., compared the bullet recovered during the autopsy on the body of Lloyd Gonzales, Jr. to the bullet | ¿retrieved from surgery performed on Lloyd Gonzales, Sr. Officer Leary identified the bullets as .32 caliber, and concluded that the same gun fired both bullets.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

COUNSELED ASSIGNMENT OF ERROR

In the only counseled assignment of error, the defendant complains he was denied his right to cross-examine Mrs. Leora Gonzales as to whether she told investigators about a brush burn on the shooter’s arm during the defendant’s first trial, the position or level of the shooter’s hand when he shot her son and the shooter’s height.

An accused is entitled to confront and cross-examine the witnesses against him. La. Const. Art. 1, § 16. La. C.E. art. 611(B) provides that a witness may be cross-examined on any matter relevant to any issue in the case. Due process affords a defendant the right of full confrontation and cross-examination of the State’s witnesses. State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201-202. The trial court has discretion to control the extent of the examination of witnesses as long as the court does not deprive the defendant of his right to effective cross-examination. State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473; State v. Huckabay, 2000-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, writ den., 2002-0703 (La.11/1/02), 828 So.2d 564. Evidentiary rules may not supercede the fundamental right to present a defense. Id. However, evidence may be excluded if it is irrelevant. See State v. Casey, 99-0023, pp. 18-19 (La.1/26/00), 775 So.2d 1022, 1037. La. C.E. art. 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” The Article 403 balancing test may exclude a statement otherwise admissible as impeachment evidence.

Further, confrontation errors are subject to the harmless error analysis so the verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial was surely unattributable to the error. State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817.

The State objected to the defense questioning Mrs. Gonzales with regard to whether she testified about a brush burn on the defendant’s arm during the first trial. The State argued that the defense was attempting to improperly impeach Mrs. Gonzales by showing that she had not testified about the brush burn at the 1995 trial.

At the retrial the court held an in-chambers conference to review pertinent testimony from the defendant’s first trial. It did not show that defense counsel ever posed a question about the brush burn to Mrs. Gonzales during the 1995 trial. The trial court’s ruling did not force the defense to abandon a proper line of inquiry, because there was no prior inconsistent statement with which the defense could impeach Mrs. Gonzales in this trial. Neither is there any merit to the defendant’s assertions about being denied the opportunity to question Mrs. Gonzales regarding the shooter’s height and the level of his hand when he shot the deceased. In response to defense questioning, Mrs. Gonzales testified that the shooter was 5'7" to 5'10" tall and that he held the gun “sort of waist [level]” when he shot her son.

Even assuming the trial court erred in its ruling, the error was harmless. Mr. Gonzales unequivocally identified the defendant as the shooter. He testified that the outside light afforded him ample visibility of the defendant. Moreovér, Mr. Gonzales said he looked into the defendant’s eyes for approximately ten to fifteen seconds, long enough to eliminate all possibility of misidentification. Considering the evidence of the defendant’s guilt, the jury’s verdict was not attributable to any error by the trial court. This assignment is without merit.

PRO SE ASSIGNMENT OF ERRORS NUMBERS 1 AND 2

In these two pro se assignments, the defendant claims that Mrs. Gonzales identified him from a show up procedure in 1994 which was impermissibly suggestive and that the overall evidence of identification was insufficient to establish that he was the person that committed the crime.

The defendant refers to the identification that occurred in pre-trial motions in December 1994 in anticipation of the defendant’s first trial. While sitting in court awaiting the beginning of the proceedings, Mrs. Gonzales noticed the defendant, clad in an orange jumpsuit, enter the courtroom in the company of several other men in the same clothing. As soon as Mrs. Gonzales saw the defendant, she identified him to her husband as the man who killed their son and stole her purse.

The defendant in this case argues that when identity is disputed, the State must negate any reasonable probability of mis-identification in order to satisfy its burden of establishing every element of the crime charged beyond a reasonable doubt. See State v. Young, 2002-1280 (La.App. 4 Cir. 1/22/03), 839 So.2d 186, writ den. 2003-0599 (La.10/17/03), 855 So.2d 756.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La.C.Cr.P. art. 841. The contemporaneous objection rule prevents “a defendant from gambling for a [ ¿favorable verdict and then, upon conviction, resorting to appeal on errors which either could have been avoided or corrected at the time or should have put an immediate halt to the proceedings.” State v. Taylor, 93-2201 p. 7 (La.2/28/96), 669 So.2d 364, 368-69 (citing State v. Arvie, 505 So.2d 44, 47 (La.1987)). In this case, the defendant has not shown that he lodged a contemporaneous objection to Mrs. Gonzales’ in-court or out-of-court identifications of him at either the December 1994 hearing or at the April 24, 2003 trial. As such, the issue has not been preserved for review on appeal. However, even if proper objections had been lodged, the defendant’s position has no merit.

To suppress identification, a defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729, 738 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980).

In this case, the 1994 identification could hardly be deemed a “procedure”. Rather, the identification was more in the nature of a show up. Mr. and Mrs. Gonzales sat in court for a previous phase of this case. Mrs. Gonzales saw the defendant enter the courtroom through the portal used for such purpose and looked to see if she saw her son’s killer. Her interest stemmed from curiosity, not pursuant to any formal procedure. There is no evidence that Ms. Gonzales was subpoenaed to come to court in hopes that she would see the defendant in the courtroom and identify him as the murderer. This was not an arranged identification procedure, but an inadvertent meeting between the witness and the defendant. An immediate and definite identification resulting from an inadvertent meeting between a witness and a suspect will be found reliable and admissible 1¿where there is no indication of impropriety or suggestiveness. See State v. Holmes, 550 So.2d 249 (La.App. 4 Cir. 1989).

Even assuming there was an identification “proceeding”, the defendant has failed to show it was unduly suggestive. Admittedly, the defendant was identified as a prisoner; however, he was one of several prisoners, all wearing identical clothing. There is nothing to indicate that any features such as race, height or physical markings drew undue focus on him visa-vis the other men. Neither did the defendant enter the courtroom alone. Mrs. Gonzales noted that the defendant was “the second or third” man in the group of prisoners. These facts do not support the defendant’s assertion that Mrs. Gonzales’ attention was unduly focused upon him.

Even when suggestiveness of the identification process is proven by the defendant or presumed by the court, the defendant must also show that there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Prudholm, 446 So.2d at 738. The Supreme Court held in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977), that despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a “very substantial likelihood of irreparable misidentification.” Under Manson, the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of misidentification include: 1) the witness’ opportunity to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Id.

In this case, Mrs. Gonzales testified that there was plenty of daylight for her to see the defendant. She noticed his eyes and his movements and stated that he was clean cut and neat. Mrs. Gonzales consistently maintained that she could identify her attacker if she physically saw him again and never wavered from her estimation of his height as 5'7" to 5'10". Moreover, she looked her assailant in the eye for at least fifteen seconds, and emphasized that she would never forget his face.

Finally, Mrs. Gonzales’ “show up” identification of the defendant did not violate his right to counsel. As discussed in the previous assignment, the identification did not result from a lineup. Mrs. Gonzales identified the defendant from a chance encounter as he entered court for pre-trial proceedings. In State v. Hargrove, 330 So.2d 895 (La.1976), two witnesses saw the defendant being escorted into the courtroom without counsel and identified him as the perpetrator. Relying on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Hargrove court found no sixth amendment violation, reasoning that a defendant’s right to counsel at post-indictment line-ups does not apply to a chance encounter between a witness and the accused. This assignment has no merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 3

By this assignment, the defendant claims violation of his constitutional rights by the trial court’s refusal to grant his motion for continuance when defense witness, Herbert White, failed to appear and testify at the trial.

The record does not indicate that the defendant moved for a continuance on the day of trial. There was a motion for continuance made the morning of voir dire, the day before trial; however, there are no reasons given for the motion or its denial. There is no indication Mr. White was subpoenaed or that the substance of his alleged testimony was proffered for the record.

La.C.Cr.P. art. 709 provides:

A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing he materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

The trial court has great discretion in granting a recess and the denial of a motion for a recess is not grounds for reversal absent an abuse of that discretion and the showing of specific prejudice. La. C.Cr.P. 712. In order to show prejudicial error sufficient to warrant reversal, the defendant must show that the testimony the witness would have given would have been favorable to the defense and would indicate the possibility of a different result. State v. Stevenson, 02-0079 (La.App. 5 Cir. 4/30/02), 817 So.2d 343.

In this case, the defendant has not met any of the C.Cr.P. art. 709 requirements. This assignment is meritless.

CONCLUSION

For the reasons above we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.


author: SUSAN M. CHEHARDY, Judge.

text:
    SAFEWAY FINANCIAL SERVICES, INC. v. PRIORITY E.M.S., Inc.; Michael Boatright and Jan Boatright.
    No. 04-CA-4.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Leonard L. Levenson, C. Ellis Henican, Jr., New Orleans, Louisiana, for Plaintiff-Appellant, Safeway Financial Services, Inc.
    G. Scott Vezina, Gretna, Louisiana, for Defendants-Appellees, Michael Boatright, Jan Boatright and Priority E.M.S., Inc.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

This is an appeal from a judgment granting a preliminary injunction against Safeway Financial Services (hereafter “Safeway”). At issue is whether the defendants, Priority E.M.S., Inc., Michael Boatright and Jan Boatright (hereafter collectively called “the Boatrights”), owe Safeway interest on an Orleans Parish judgment. We reverse the ruling and we dissolve the preliminary injunction.

This suit began with Safeway’s petition to make an Orleans Parish judgment exec-utory. Safeway obtained a writ of fieri facias against Jefferson Parish property belonging to the defendants. The defendants then filed a reconventional demand for an injunction to prohibit sale of the seized property and to dissolve the seizure, asserting that the judgment in Safeway’s favor had been satisfied by payment under an appeal bond.

After a hearing, the trial court granted the motion for preliminary injunction in part, prohibited Safeway from seizing property of the Boatrights in excess of $30,858.00. The court concluded that the Boatrights owed Safeway less than Safeway claimed.

Safeway appeals and contends the limitation leaves the judgment unsatisfied.

BACKGROUND

Before addressing the issues in the case at bar, we must explain the underlying case from Orleans Parish, Priority E.M.S. v. Crescent City E.M.S., 01-2171 (La.App. 4 Cir. 10/16/02), 829 So.2d 1066, writ denied 02-3111 (La.2/21/03), 837 So.2d 632, in which the judgment made the basis of this suit was rendered.

In 1988, Safeway lent money to Michael Boatright and his wife, Jan Boatright, to start up a corporation, Priority E.M.S., Inc. (“Priority”). In return, Safeway and its nominee, Alacrity, Inc. (“Alacrity”) each received 30 shares of stock in the corporation, which Safeway was assured represented 60 percent of the corporation, a controlling interest. Safeway is owned by Joseph Young, Jr., who initially served as an executive of Priority. Disagreements arose between the Boatrights and Young in operation of Priority. Safeway (i.e., Young) learned that far more shares had been issued than the Boatrights originally disclosed, so that Safeway’s 60 shares represented less than one percent of the authorized shares. Litigation ensued.

In Priority E.M.S., Inc. v. Crescent City E.M.S., d/b/a Medic One and Medic One, Inc., et al., 90-19542 (Civil District Court, Parish of Orleans), the Orleans court rendered judgment on December 5, 1996 finding Priority and the Boatrights liable to Safeway in the sum of $413,000.00 plus interest from date of judicial demand plus costs. In addition, the court awarded $41,300.00 in attorney’s fees. The court specifically found that the Boatrights had committed fraud and breach of contract with the intention of wresting control of Priority from Safeway.

Subsequently, on February 4, 1997, the Orleans judge issued an order that on its face is confusing, but that was later interpreted by the Fourth Circuit to apply to the December 5, 1996 judgment and to leave it in the status of a rendered but unsigned judgment.

On July 9, 1998 the trial court granted a new trial as to quantum only, stating:

Insofar as the reasons for Judgment based on the facts, this court feels compelled to deny a new trial on the merits and renders Judgment accordingly.
Insofar as the amount of damages awarded, this court has done the most in-depth searching. I have reviewed my entire reasons and the conflicting testimony in this matter and sincerely feel that the damages awarded may be out of proportion to the harm suffered. For this reason this court feels justified in granting a new trial to Priority and the Boatrights on the matter of quantum only. A new trial on quantum would give both sides an opportunity to present evidence of the actual damages suffered.
This court also certifies that the judgment on merits only is a final judgment.

Following the new trial by a successor to the original judge, who had retired, on February 16, 2001 the Orleans court rendered an amended judgment that awarded Safeway $429,658.00 in damages plus $10,000 in additional attorney’s fees, and costs, but did not mention interest. The judgment specified it was regarding a “new trial on the quantum of damages only.” In reasons for judgment the court stated, “This is a new trial granted by Judge DiRosa solely on the issue of quantum which he set aside as being overly compensatory.”

Thereafter the Boatrights appealed. In Priority E.M.S. v. Crescent City E.M.S., 01-2171 (La.App. 4 Cir. 10/16/02), 829 So.2d 1066, writ denied 02-3111 (La.2/21/03), 837 So.2d 632, the Fourth Circuit reviewed and affirmed both the judgment of December 5, 1996 and the judgment of February 16, 2001. The supreme court denied writs.

On April 4, 2003 Travelers Casualty and Surety Company of America, the surety on the Boatrights’ devolutive appeal bond, issued a check to Safeway in the amount of $450,000.00, which was the extent of Travelers’ liability on its bond.

Thereafter Safeway filed the instant suit in Jefferson Parish to execute against a house owned by the Boatrights in Jefferson. The Boatrights filed a reconven-tional demand seeking the injunction to halt execution, while Travelers intervened in the suit. The Boatrights and Travelers contended that the December 5, 1996 judgment had been vacated and set aside by the rendition of the February 16, 2001 judgment on a motion for new trial. Because the 2001 judgment did not specify interest on the award, therefore, the Boat-rights and Travelers argued that no interest was due, so that the $450,000.00 already paid was full satisfaction of the February 16, 2001 judgment.

In contrast, Safeway argued that the February 16, 2001 was intended to supplement the first judgment, not to replace it, so that the award of interest in the December 5, 1996 judgment was still in force. Alternatively, Safeway asserted that the fraud action lay in tort and, therefore, interest is automatically a part of the judgment without being specified.

The trial court held that the attorney’s fees awarded in the February 16, 2001 judgment were intended as additional fees. The court noted that Travelers and the Boatrights had admitted that they were not trying to annul the December 5, 1996 judgment. However, the court also stated,

This Court determined that Safeway was awarded a judgment due to the Boatrights’ violation of obligations owed to Safeway rather than as a result of a tort. As stated by the Fourth Circuit, “[c]learly, the trial judge concluded that the fraud occurred in the performance of the contract. After reviewing the testimony and evidence in the record, we cannot say this finding is manifestly erroneous.” If the Court rendering the judgment intended that the two judgments be read together except for the quantum amount, then that Court must clarify its intent. This Court cannot enforce a judgment which does not spe-eifically award judicial interest when the law does not mandate judicial interest regardless of the wording of the judgment.

In accordance with the finding, the trial court granted the motion for preliminary injunction in part, as noted above, limiting it to the amount the court found remained owed on the judgments.

On appeal to this Court, Safeway contends the trial court erred in determining that the interest awarded in the December 5, 1996 judgment does not apply to the February 16, 2001 judgment. Safeway asserts that over $400,000.00 in interest is due on the judgments.

The Boatrights contend that the purpose of a preliminary injunction is to preserve the status quo pending determination of the merits on the permanent injunction and that the trial court did not abuse its discretion in granting the preliminary injunction. The Boatrights do not contest Safeway’s assertion that the injunction should be lifted if we determine that the interest award applies.

LAW AND ANALYSIS

A valid and final judgment is conclusive between the same parties. La.R.S. 13:4231. The opinion of the Fourth Circuit in Priority E.M.S. v. Crescent City E.M.S., 01-2171 (La.App. 4 Cir. 10/16/02), 829 So.2d 1066, writ denied 02-3111 (La.2/21/03), 837 So.2d 632, became final when the supreme court denied writs. La.C.C. art. 2166(E).

After reviewing the Fourth Circuit opinion carefully, we conclude the trial court committed an error of law in interpreting the opinion. The Fourth Circuit opinion reviewed both judgments and affirmed both judgments. The February 16, 2001 judgment dearly was intended to apply to quantum only. Neither Judge DiRosa in granting the partial new trial on quantum, nor Judge Julien in rendering the amended judgment on quantum, nor the Fourth Circuit in reviewing the judgments, ever indicated that the award of interest in the December 12, 1996 judgment was vacated or reversed in any way.

The judgments were intended to be read together and the Fourth Circuit treated them in that way. The Fourth Circuit did not consider the 1996 judgment to have been superceded by the 2001 judgment in any way except as to quantum.

The district court in this case understood that the December 5, 1996 judgment had not been vacated; hence, the court upheld the award of additional attorney’s fees made by Judge Julien. The court erred, however, in stating that interest could not be awarded because it was not contained in the February 16, 2001 judgment. The award of interest in the December 5, 1996 judgment encompasses and includes the quantum in the February 16, 2001 judgment. In ignoring the interest award made in the December 5, 1996 judgment, the trial court abused its discretion. Accordingly, the injunction was improvidently issued.

For the foregoing reasons the judgment is reversed and the preliminary injunction is dissolved. Costs are assessed against the appellees, Priority E.M.S., Inc., Michael Boatright and Jan Boatright.

REVERSED; INJUNCTION DISSOLVED.

      . Henceforth, for ease of reference we treat all 60 shares as if they were Safeway's. Eventually Safeway acquired all of Alacrity’s shares.

      . The February 4, 1997 order stated:
      It is ordered by the Court that the signing of the judgment of January 31, 1997 remain as rendered, denying the movers a new trial. However, the signing of that Judgment by the Court is revoked and set aside, nunc pro tunc, thus causing the Judgment to revert to a rendered but unsigned Judgment under LSA-C.C.P. art.1911, thus staying execution pending further orders of the Court.

      . Priority E.M.S., Inc. v. Crescent City E.M.S., Inc., 98-2537 (La.App. 4 Cir. 12/23/98), 727 So.2d 1186, 1187, writ denied, 99-1034 (La.6/18/99), 745 So.2d 23, was an appeal from the December 5, 1996 judgment. The Fourth Circuit noted that a new trial was pending on quantum, making the December 5, 1996 judgment was a partial judgment and, as such, not appealable. That appeal was dismissed.

      . The original judge was Louis A. DiRosa, who signed the December 5, 1996 judgment as well as the judgment granting the new trial. The successor to his seat was Ethel Simms Julien, who signed the Amended Judgment of February 16, 2001.

      . Travelers is no longer a party to this appeal. On February 17, 2004 the district court granted Travelers’ motion for voluntary dismissal of its intervention without prejudice. Travelers filed a certified copy of the dismissal in this Court on February 18, 2004.


author: | JAMES L. CANNELLA, Judge.

text:
    Hector SARRIO v. STALLING CONSTRUCTION COMPANY.
    No. 04-CA-34.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Jeremiah A. Sprague, Timothy J. Falcon, Falcon Law Firm, Marrero, LA, for Appellee.
    Wade A. Langlois, III, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   | JAMES L. CANNELLA, Judge.

In this workers compensation case, the Defendant, Stalling Construction Company, appeals from a judgment in favor of the Plaintiff, Hector Sarrio. The Plaintiff cross-appealed for damages for frivolous appeal. We amend in part, affirm as amended and remand.

The Plaintiff was hired by the Defendant as a wall framer and dry-wall hanger in August of 2001. On May 27, 2002, he allegedly suffered a work related accident when a saw that he was using to cut door frames “kicked back,” causing him to fall and injure his lumbar spine. No one witnessed the accident, but a co-worker, Gary Walker (Walker), discovered him sitting on the floor, holding his back, shortly after the alleged accident. His supervisor, Von Heausler (Heausler), was informed and the Plaintiff was transported by ambulance to Tulane University Hospital and Clinic where he was diagnosed with a lumbar contusion. He was subsequently treated for continuing back problems. He did not return to work and was not paid any workers’ compensation benefits until shortly before trial. The Plaintiff had pre-existing back problems.

On June 17, 2002, the Plaintiff filed a Disputed Claim for Compensation. The case was tried on July 23, 2003. The workers’ compensation judge rendered a judgment on September 12, 2003, finding that the Plaintiff had been injured in a work related accident on May 27, 2002 and that the accident aggravated a pre-ex-isting back condition. The workers’ compensation judge found that the Plaintiff is entitled to temporary total disability (TTD) benefits from date of the accident, and all medical, medication, and transportation expenses related to the accident. She further found that the Defendant was arbitrary and capricious in failing to pay compensation benefits and awarded the Plaintiff penalties of $2,000 for its failure to pay indemnity benefits, $2,000 for failure to pay medical benefits and $5,000 for attorney’s fees.

On appeal, the Defendant contends that the workers’ compensation judge erred in finding that the Plaintiffs disability was caused by the alleged work accident, in finding that the Plaintiff is temporarily, totally disabled, and in awarding penalties and attorney’s fees. The Plaintiff appealed asking for damages for frivolous appeal.

The appellate court’s review of a workers’ compensation case is governed by the manifest error or clearly wrong standard. Wiley v. Dijon Services, Inc., 02-242, p. 3 (La.App. 5th Cir.10/16/02), 831 So.2d 317, 319, writ den., 02-2612 (La.12/13/02), 831 So.2d 990. To be entitled to workers’ compensation benefits, the plaintiff must prove that there was a work related accident, resulting in a disability that was caused by the accident. Wiley, 02-242 at p. 3, 831 So.2d at 318. The plaintiff bears the burden of establishing this causal connection by a reasonable preponderance of the evidence. Id.; Quinones v. U.S. Fidelity and Guar. Co., 93-1648, p. 6 (La.1/14/94), 630 So.2d 1303, 1306-07.

WORK RELATED INJURY

The Defendant contends that the Plaintiff failed to prove a causal link between the alleged work accident and his disability, because he had a pre-existing disability with restrictions and the medical evidence shows that there was no increase in the pre-existing disability.

The evidence shows that the Plaintiff was hired by the Defendant in August of 2001 and continued until May 25, 2002. On that date, he was hanging sheetrock at the Hilton Hotel during a renovation project. According to the Plaintiff, he was in the room alone cutting a door frame when the saw which he was using “kicked back” causing him to strike a bathtub edge resulting in back pain. Shortly after the incident, another worker, Walker, came in and saw him on the floor holding his back. Walker reported the incident to the supervisor, Heausler, who sent the Plaintiff to the emergency room. Because his car was at the work site and the Defendant did not provide for his return there, the Plaintiff walked back to the Hilton, some distance from the hospital.

Walker testified that he did not talk to the Plaintiff after he reported to Heausler that he found the Plaintiff laying on the floor. Heausler testified that he did not see any evidence in the room of a fall, such as a disturbance in the metal shavings on the floor, but noted that the Plaintiff was a good worker who came to work every day, never complained and created no problems. The trial judge found that the Plaintiff had proved a work related injury. After our review, we find no manifest error in this regard.

TEMPORARY, TOTAL DISABILITY

Prior to working for the Defendant, the Plaintiff had been employed as a carpenter performing similar duties with other companies. He admitted that he injured his back in 1997 and magnetic resonance imaging (MRI) tests taken in 1997 and 1998 indicate mild bulging discs at L4-5 and L5-S-1, and narrowing of the neural foramina attributed to degenerative changes. However, the Plaintiff continued to perform his hard labor work with the help of medications from 1997 until this accident in 2001. Eight of those months he worked for the Defendant without any problems. For six months prior to starting to work with the Defendant, he was unemployed due to lay offs, not his medical condition. After this incident, the Plaintiff was examined in the Tulane Medical Center emergency room and diagnosed with a lumbar contusion. The Plaintiff next saw Dr. William Woessner, a family and occupational medicine specialist, on May 29, 2002. He diagnosed lumbar and coccygeal contusion and recommended that the Plaintiff see an orthopedic doctor as soon as possible. Dr. Woessner released the Plaintiff to light duty work. The Plaintiff returned to Dr. Woessner on June 10, 2002, still complaining of low back pain. Dr. Woessner found the complaints inconsistent with the examination findings and released him to regular duty. Nevertheless, he told the Plaintiff to see an orthopedic specialist.

Dr. Jose Figueroa, a general medicine practitioner, saw the Plaintiff prior to and after this incident. Dr. Figueroa had treated the Plaintiff in 2000 for an unrelated condition. In February of 2001, he diagnosed the Plaintiff with lumbar disc disease. In October of 2001, he recommended that the Plaintiff see an orthopedic specialist or neurosurgeon. The Plaintiff did not seek further treatment from anyone until this incident.

Dr. Figueroa testified that he examined the Plaintiff on June 2, 2002, six days after this accident. The doctor stated that the difference between the Plaintiffs symptoms and his symptoms prior to the accident was that the Plaintiffs pain level was higher than before. He noted muscle spasms on both sides of the Plaintiffs back. He diagnosed a low thoracic lumbar contusion. Dr. Figueroa saw the Plaintiff again on June 22, 2002 and August 3, 2002. In August, he advised the Plaintiff to see the company doctor. Based on the Plaintiffs symptoms, he would have placed the Plaintiff on light duty work, restricting him to time limits on standing and sitting, no bending and no lifting more than 20 pounds.

Dr. Deepak Awasthi, a neurosurgeon, examined the Plaintiff on October 24, 2002. He testified that the Plaintiff complained of severe pain, spasms and radiating pain into the left lower extremities. No numbness, tingling or weakness was noted, but the Plaintiff reported that his pain was becoming worse and more constant. The Plaintiff informed the doctor that he had physical therapy in the past, but not recently, and that he was not on medication. The Plaintiff also told the doctor that he had not fully recovered from his prior back injury when this happened.

Dr. Awasthi testified that his examination did not show any neurological focal motor or sensory deficits and the straight leg test was negative. He noted that a negative straight leg test does not mean that the Plaintiff was not experiencing back pain. At that time, he ordered the Plaintiff not to return to work and ordered an MRI, which was not performed until June 25, 2003. At trial, he stated that the MRI’s taken in 1997,1998, and 2003 show the Plaintiff suffers from degenerative disc changes at L4-5 and L5-S1, loss of water content in the discs and some disc protrusion at L5-S1. He noted that the spine showed narrowing of the neural foramina, which is a degenerative condition that could be causing impingement on the nerve. He also noted that the 2003 MRI shows edema and that this condition implies that there is an irritation of the nerve root. Although he stated that this could be a degenerative condition, he stated that the edema was not on the 1997 and 1998 MRIs. Dr. Awasthi’s diagnosis was a combination of soft tissue injury and aggravation of the underlying degenerative changes. He recommended that the Plaintiff receive physical therapy, pain management, possibly epidural injections, and give the injury time to heal. He recommended that the Plaintiff refrain from heavy duty work, from lifting, pulling or pushing over 20 pounds, and stated that the Plaintiff should also refrain from excess bending and prolonged sitting or standing. He testified that the Plaintiff could perform light duty work and that the pain should improve or plateau within six months of conservative and appropriate management. Dr. Awasthi concluded that the Plaintiff suffered an aggravation of his previous condition from the accident.

On April 8, 2003, at the request of the Defendant, the Plaintiff was examined by Dr. Robert Applebaum, a neurosurgeon. The Plaintiff complained of low back, left leg and left arm pain. Dr. Applebaum also ordered an MRI and concluded that the Plaintiff has degenerative disc disease, which was aggravated by the accident. He testified that the aggravation should have lasted no more than three to six months. Any disability after that would be attributable to the underlying disc disease. He did not review any of the Plaintiffs prior records, but did review the MRI taken after the accident. That report indicated that the Plaintiff had root canal edema or swelling, but he disagreed with the report. Dr. Applebaum did acknowledge that edema would be consistent with an injury.

In order to receive TTD benefits, the Plaintiff must prove by clear and convincing evidence that he is unable to engage in any employment. La. R.S. 23:1221(l)(c). “Clear and convincing” in the workers’ compensation context is |s“an ‘intermediate’ standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard.” Hatcherson v. Diebold, Inc., 00-3263 at p. 4 (La.5/15/01), 784 So.2d 1284, 1288 (citing Black’s Law Dictionary 227 (5th ed.1979)); Comeaux v. City of Crowley, 01-0032, p. 9 (La.7/3/01), 793 So.2d 1215, 1220; Kaiser v. Western-Southern Ins. Co., 01-1393, pp. 11-12 (La.App. 5th Cir.5/15/02), 821 So.2d 52, 58.

In this case, we find that the worker’s compensation judge was not clearly wrong in finding that the Plaintiff is entitled to TTD benefits at least until the date of trial. The Plaintiff was placed on light duty in May of 2002 by Dr. Woessner, who in June of 2002 released him to regular duty with the condition that he see a specialist because he did not know what was wrong with the Plaintiff. In October of 2002, Dr. Awasthi told the Plaintiff not to return to work because he was concerned about the Plaintiffs condition and needed an MRI to make an considered determination of the cause of the Plaintiffs pain. For whatever reason, the MRI was not performed until June 25, 2003. Dr. Awas-thi’s deposition was taken six days before trial, on July 17, 2003. Only then, after reviewing the MRI, did he release the Plaintiff to light duty work. In his April of 2003 report, Dr. Applebaum did not make any recommendation except to order an MRI. In his deposition on July 15, 2003, he only indicated that the aggravation should have resolved within three to six months.

We agree with the workers’ compensation judge that the Plaintiff cannot perform his current occupation and was temporarily, totally disabled to the date of trial. But, we find that medical evidence also shows that the Plaintiff can perform light duty work, with restrictions on lifting, bending, sitting and standing. Although the Plaintiff contends that he is in pain, working in pain does not entitle a claimant to TTD benefits. Navarre v. K-Mart, 01-753, p. 5 (La.App. 5th Cir.11/27/01), 803 So.2d 206, 209. Rather, the Plaintiffs disability after the date of trial falls within the provisions for Supplemental Earnings Benefits (SEBs) in La.R.S. 23:1221(3).

The Defendant asserts that if the Plaintiff is entitled to SEBs, he failed his burden of proof in that regard. The Plaintiff responds that he cannot work with his disability. In Navarre we noted:

K-Mart acknowledges that the Claimant may come within the SEBs classification, but urges this court to make a finding on this record that the Claimant can earn minimum wage on a 40 hour-a-week job. We find no record support for such a finding.... Once the employee’s burden in seeking SEBs is met, the burden shifts to the employer who, in order to defeat the claim for SEBs or establish the employee’s earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee, or was available in his or the employer’s community or reasonable geographic region. K-Mart has made no such showing in this case. Thus, the case must be remanded for a continuation of the hearing to determine first, whether the Claimant is entitled to SEBs and, assuming that he is, since the trial judge originally found him temporarily totally disabled, second, the amount of the benefits to which he is entitled.

Navarre, 01-753 at pp. 6-7, 803 So.2d at 210.

Like Navarre, we find that this case must be remanded for a continuation of the hearing to determine whether the Plaintiff is entitled to SEBs and if so, the amount of benefits he is entitled to receive.

PENALTIES AND ATTORNEY’S FEES

La. R.S. 23:1201 F provides for the imposition of penalties and attorneys fees when indemnity or medical benefits due to the claimant are not paid timely. However, this does not apply if the claim is reasonably controverted, or if such nonpayment results from conditions over which the employer had no control. La. R.S. 23:1201 F(2). In order to reasonably controvert a claim, the Defendant must have some valid reason or evidence upon which to base the denial of benefits. Brown v. Texas-La Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. Barbarin v. TLC Home Health, 02-1054, p. 9 (La.App. 5th Cir.4/29/03), 845 So.2d 1199, 1206. The question is whether the Defendant “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time which they refused to pay all or part of the benefits allegedly owed.” Brown, 98-1063 at p. 9, 721 So.2d at 890; Barbarin, 02-1054 at p. 9, 845 So.2d at 1206. The assessment of penalties and attorney fees by the workers’ compensation judge is a factual question, which is not to be disturbed on appeal, in the absence of manifest error. Barbarin, 02-1054 at p. 9, 845 So.2d at 1206. Awards of penalties and attorney’s fees in workers’ compensation cases are penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. See, Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Williams v. Rush Masonry, Inc., 98-2271, p. 8 (La.6/29/99), 737 So.2d 41, 46. The fact that an employer may be subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim. Sharbono, 97-0110 at p. 11, 696 So.2d at 1389. Further, penalties and fees are never assessed automatically against the losing party; Williams, 98-2271 at p. 9, 737 So.2d at 46.

The Defendant in this case was informed shortly after the accident that the Plaintiff had a pre-existing back condition. However, the report from Tulane University Hospital and Clinic and the several doctors that saw him in May, June and October of 2002, also showed that he suffered a lumbar contusion. Dr. Woessner placed him on light duty in May of 2002, but the Defendant told the h plaintiff that it had no light duty work available. Although Dr. Woessner said that the Plaintiff could return to full duty in June of 2002, he also stated that the Plaintiff needed to see a specialist. At some point, the Defendant became aware that the Plaintiff had been advised to see a specialist after his prior back injury.

On June 12, 2002, Plaintiffs counsel forwarded a letter to the Defendant requesting indemnity benefits and for payment of the medical benefits that the Plaintiff was incurring. He also asked for a neurosurgeon of the Plaintiffs choice. The Defendant did not respond. In September of 2002, another letter was sent with the same request. In October of 2002, the Plaintiff saw his choice of specialists, Dr. Awasthi, who told him not to return to work and ordered the MRI. Following the visit, the Plaintiff asked for authorization for the MRI and for payment of certain medical expenses. According to the Plaintiff, the Defendant refused. Instead, the Defendant sought a second medical opinion from Dr. Applebaum, who did not see the Plaintiff until April of 2003. Dr. Appleb-aum also ordered an MRI. Despite these requests, the MRI was not performed until June 25, 2003, after the original trial date had been continued and shortly before trial. Thus, the Plaintiff waited from October of 2002 to June of 2003 to have the test performed. The MRI showed swelling at the nerve root which was not present prior to the accident.

By October of 2002 it was clear that the Plaintiffs pre-existing condition had been aggravated by the accident. Yet, the Defendant failed to offer a light duty job or investigate possible alternative jobs for the Plaintiff and was dilatory in providing the MRI. Furthermore, the record also shows that it was dilatory in paying an agreed upon amount of indemnity benefits in consideration for a continuance of the original trial date of May 15, 2003 and the Plaintiffs waiver of the penalties and attorney’s fees claim. The Defendant had agreed to pay the Plaintiff indemnity benefits from May 15, 2003 through the new trial date, July 23, 2003, but did not do so until the Plaintiff filed a motion for contempt. The Plaintiff finally received the payment on June 20, 2003. Based on these facts, we find that the Defendant was not reasonable in refusing to pay TTD benefits and medical benefits. Thus, we find that the workers’ compensation judge was not manifestly erroneous in awarding or the amounts of penalties and attorney’s fees.

FRIVOLOUS APPEAL

The Plaintiff cross-appealed requesting damages for frivolous appeal. Based on the facts herein, we find no reason to award such damages.

DECREE

Accordingly, the judgment is hereby affirmed as to the existence of a work-related accident. It is affirmed as to the award for TTD benefits up to the date of trial. The judgment is amended as to the continuing award for TTD past the date of trial. Further, we hereby remand the case for a determination of the Plaintiffs entitlement to SEBs pursuant to La.R.S. 23:1221(3) and the amount due, if entitled. The award for attorney’s fees and penalties are affirmed. Costs of appeal are assessed against the Defendant.

AMENDED IN PART, AFFIRMED AS AMENDED AND REMANDED.

      . La.R.S.23:1221(l)(c) states:
      For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.