author: I iWILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Cesar D. GUIDEN, Jr., Appellant.
    No. 38,230-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      J. Ransdell Keene, for Appellant.
    Paul J. Carmouche, District Attorney, Eddie Brossette, J. Thomas Butler, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   I iWILLIAMS, J.

The defendant, Cesar D. Guiden, Jr. was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. Thereafter, the state amended the bill to charge the defendant with the use of a firearm as a dangerous weapon in the commission of an armed robbery, a violation of LSA-R.S. 14:64.3. After a jury trial, the defendant was found guilty of first degree robbery and was sentenced to serve twenty-eight years at hard labor without the benefit of parole, probation or suspension of sentence. The defendant now appeals. For the following reasons, we affirm.

FACTS

On June 27, 2001, employees of the Fina Mart in Shreveport, Louisiana contacted police officers to report a robbery. Kiesha Oneal (“Oneal”), a store clerk, informed an officer that she was doing inventory when a man came into the store. Assuming that the man was a customer, Oneal went behind the counter to assist him. The assailant dropped a gun on the counter and then immediately picked it up and pointed it at Oneal’s head. He told her to give him the money from the cash register. He placed a yellow plastic bag on the counter and she gave him the money. As the assailant left the building, another employee was entering the store to report to work. Both employees described the assailant as a black male who was wearing a white tee shirt, blue jeans and a blue hard hat. Two other individuals who were about 50 yards from the convenience store, told an officer that a man had run out of the store and changed into all white clothing.

| {.The defendant was stopped by police officers approximately a block and a half from the Fina Mart because he was a black male dressed in all white clothing. He had a yellow plastic sack which contained $109 in cash in his pocket. The defendant was handcuffed and detained. The officers brought the employees over to the defendant and asked them whether he was the man who had robbed the store. Both employees responded, ‘Yes.”

A short time later, a blue hard hat, a gun and a sack of clothes were found in a nearby field. There were no fingerprints on the gun. Subsequently, the investigating officers learned that at the time of the robbery, the cash register should have contained between $110 and $120. A partial palm print on the hard hat matched the defendant’s palm print that was on file with the police department from a prior arrest.

At trial, the two store employees and five police officers testified. The employee from whom the money was taken made an in-court identification of the defendant, the yellow bag in which he had put the money, the handgun and the blue hard hat. The officers informed the jury of their initial investigation, the arrest of the defendant and the collection and chain of custody of the physical evidence found on the defendant and in the field. The trial court denied the defendant’s motion for mistrial and required the defendant to give both a fingerprint and a palm print sample in the presence of the jury. The fingerprint expert testified that the defendant’s palm print taken in court matched the palm print found on the hard hat in the field.

UOn December 6, 2002, the jury in an 11-1 decision found the defendant guilty of a responsive verdict of first degree robbery. He was subsequently sentenced to serve 28 years at hard labor without the benefit of parole, probation or suspension of sentence. The trial court denied the defendant’s motion for post-verdict judgment of acquittal and this appeal ensued.

DISCUSSION

Assignment of Error Number One:

Sufficiency of the Evidence

By this assignment, the defendant contends the evidence was insufficient to support his conviction. He argues that the in-court identifications were tainted by the earlier improper actions of the officers when they asked the witnesses to identify him in handcuffs at the scene. He further argues that the circumstantial evidence was insufficient to exclude every reasonable hypothesis of innocence.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing the sufficiency of the evidence first is because the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a [ reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

The crime of first degree robbery is defined in LSA-R.S. 14:64.1, which reads as follows:

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

The defendant’s contention that the at-the-scene identifications and the in-court identification are tainted is without merit. While one of the store clerks was shown to not have actually been looking at the man’s face |sand admitted that she may have been in error about her at-the-scene identification of the robber, the testimony shows that the other store clerk did see the defendant’s face. She was the clerk who was actually robbed and had seen him face to face. He had pointed a gun at her from across the counter. She had given the defendant the money. Neither her at-the-scene identification nor her in-court identification of the defendant was controverted on cross-examination. The defendant has failed to sufficiently show why he contends the in-court identification was tainted by the prior at-the-scene identification.

This court’s authority to review questions of fact in a criminal case does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 758 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

The record shows that the jury accepted the store clerk’s testimony and identification and the other evidence supports her testimony. The same store clerk/victim had informed the officers that the robber had placed a yellow Dollar General bag on the counter at the time he had demanded the money. The store clerk also testified that between $110 and $120 was in the cash register. She further testified that there should have not been any twenty-dollar bills taken from the cash register. The officer testified that when the defendant was apprehended he had a yellow Dollar General bag | ^stuffed in his pocket which contained $109. The officer testified that the bag contained various denominations of bills, but no $20 bills.

The police officer also testified that when the defendant was stopped, he had on the same color clothing that the two witnesses outside the Fina store had told the officer the robber had changed into after coming out of the store.

Further, the store clerk/victim positively identified the defendant as the robber and the palm print identification matched the defendant’s print to the palm print found on the blue hard hat.

The defendant also argues that the evidence does not exclude every reasonable hypothesis of innocence. In his brief, the defense suggests as a theory of innocence that the defendant “could have picked the hat up in the field or anywhere else just as easily as an armed robber could.” The defendant argues that his prints could have been “placed on the hat at some time prior to it being used in the armed robbery.” He also argues that since neither the defendant’s prints nor any gloves were found with the clothing found by the police, the gun could not have been the one used to commit the robbery although the store clerk identified it as the weapon used.

These arguments are both meritless and unreasonable. The evidence of record amply supports the jury’s conclusion that the officers arrested the man who had robbed the store. The fact that the defendant was caught with a Dollar General bag containing the approximate amount of money in the specific denominations reported to be in the cash register was far too much of a coincidence for the jury or this Court to ignore. The evidence taken as |7a whole dissolves any reasonable hypothesis of innocence. This assignment lacks merit.

Assignment of Error Number Two:

Motion for Neiu Trial

By this assignment, the defendant contends that the trial court erred in requiring him to submit to fingerprint and palm print examinations in front of the jury. He argues that this procedure was highly prejudicial and constitutes reversible error. Defendant asserts the trial court’s ruling denied him the right to a fair trial, he should not have been required to assist the state in convicting him and he had a right to “remain silent.” The defendant further argues that the impressions should have been taken during the discovery phase rather than during the trial, and he was surprised by the procedure.

The state argues that taking fingerprints or palm prints in the presence of the jury has been held to be proper and not prejudicial. It further states that the defendant was given notice through discovery that there was a palm print on the hard hat, and thus the identification via printing could not be viewed as a surprise.

The defendant relies on LSA-C.Cr.P. art. 775 which reads as follows:

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

The record indipates that a mistrial was sought after the first request for the taking of prints. Upon the state’s request, the court ordered the defendant to give a sample of his fingerprints. Before and after the taking of the prints, testimony was given by the expert witness. The defense made the request for a mistrial in a bench conference the next day. The motion was based on the fact that the expert indicated he was making a comparison to a palm print card that was “on file.” The witness’s comment that prints were “on file” indirectly indicated that the defendant had at least one prior arrest. The trial court acknowledged that the officer had made such a reference and that it was a problem, but did not grant the mistrial. However, it did caution the state to be very careful about the issue.

While we note that the state made an error in making this indirect reference to a prior crime as prohibited by LSA-C.Cr.P. art. 770(2), based on the overwhelming evidence of the defendant’s guilt, we find such an error to be harmless. By the time the prints were taken from the defendant, the jury had already heard the testimony from the other witnesses connecting the defendant to the crime, and from the store clerk identifying Rthe defendant as the person who had robbed her and reciting the details of the robbery.

Although the defendant argues that “the taking of the prints in front of the jury” was prejudicial conduct that made it impossible for him to receive a fair trial, we are cognizant of the long line of cases that support the' state’s position that this procedure is not prejudicial nor an error.

In State v. Robertson, 358 So.2d 931 (La.1978), the supreme court stated:

Identification of Robertson as one of the perpetrators of the robbery was a material issue in dispute; therefore, the fingerprint identification of Robertson was highly probative to place him at Pailet and Penedo jewelers. Since the fingerprint on the card obtained from the latent print files in Washington was not current and not clearly identified as being that of Robertson, the in-court fingerprint procedure was necessary to obtain a current fingerprint which undeniably was Robertson’s. Clearly, the probative value of the procedure outweighed any prejudicial effects. Hence, we find no merit to defendants’ contention that the trial judge erred in requiring Robertson to be fingerprinted in the presence of the jury.

The defendant’s argument that the taking of the prints was a surprise and violated the discovery rules, particularly LSA-C.Cr.P. art. 719, is misplaced. Article 719(A) provides as follows:

A. Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this Article even though it is not intended for use at trial, (emphasis added)

|1nThe test was not conducted before the trial. Further, there is nothing in the record to support the defendant’s argument that he was surprised by the procedure or to learn that the palm print on the hard hat had been discovered prior to trial. Moreover, the defendant’s argument that he was surprised was not raised during the trial. Since neither the law nor the facts of this case support the defendant’s contention that the taking of the prints in front of the jury prejudiced him, this assignment as presented and argued lacks merit.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: 11 BROWN, C.J. hWILLIAMS, Judge,

license: Public Domain

text:
    Aiko WALKER, et al, Plaintiffs-Appellants v. BOSSIER MEDICAL CENTER, Defendant-Appellee.
    No. 38,148-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.
    John L. Hammons, Shreveport, Annis C. Flournoy, for Appellants.
    Rene’ J. Pfefferle, Baton Rouge,for Ap-pellee, Bossier Medical Center.
    Cynthia C. Anderson, Joseph S. Wood-ley, Shreveport, for Appellee, Lifeshare Blood Centers.
    Department of Justice, Richard P. Iey-oub, Attorney General, Merrick J. Norman, Jr., John E. Baker, Assistant Attorney Generals, for Appellee, State of Louisiana.
    Before BROWN, WILLIAMS, STEWART, DREW, and LOLLEY, JJ.
   11 BROWN, C.J.

The issue in this ease is whether the trial court erred in sustaining defendant’s exception of prescription and dismissing plaintiffs’ action. To make this decision, we are called upon to determine the constitutionality of the prescriptive period for medical malpractice actions set forth in La. R.S. 9:5628 as applied to a claim asserted by a plaintiff who suffers from a disease with a latency period which exceeds the three-year statutory limitation. We reverse and remand.

Facts

In January 1981, Aiko Walker was hospitalized for surgery at Bossier Medical Center Health Care Foundation (“Bossier Medical”) which necessitated a blood transfusion. More than a decade later, in February 1992, Mrs. Walker was diagnosed with Hepatitis C, which was causally related to the 1981 transfusion of defective blood. Thereafter, on January 23, 1993, Mrs. Walker petitioned for a review of her claim by a medical review panel. After an adverse opinion was issued, plaintiffs, Aiko and Paul Walker, filed a petition in district court seeking damages from defendant, Bossier Medical, alleging strict liability. Plaintiffs amended their petition, naming as additional defendants Lifeshare Blood Center and the Louisiana Attorney General.

Bossier Medical filed a peremptory exception of prescription arguing that the three-year limitation period of La. R.S. 9:5628 barred the Walkers’ claim. Dr. David Dies testified that 99% of patients contracting Hepatitis C |2will not experience any symptoms for a period of approximately ten years from the date of receipt of contaminated blood.

Relying on Crier v. Whitecloud, 496 So.2d 305 (La.1986), the trial court found that the malpractice act provides a three-year prescriptive period which runs from the occurrence of the event for all malpractice actions, including those arising from alleged defects in blood. The court rendered judgment sustaining defendant’s exception of prescription and dismissing plaintiffs’ action. It is from this judgment that plaintiffs have appealed.

Discussion

La. R.S. 9:5628 provides:

(A) No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed | .-¿within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims Med within one year from the date of such discovery, in all events such claims shall be Med at the latest within a period of three years from the date of the alleyed act, omission, or neglect. (Emphasis added).
(B) The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

In Crier v. Whitecloud, 496 So.2d 305 (La.1986), the supreme court held that Mrs. Crier’s rights to due process, open access to courts, and equal protection were not violated by the statute of limitations set forth in the medical malpractice act; however, the court has been unwilling to extend this holding beyond the particular facts of Crier. See David v. Our Lady of the Lake Hospital, Inc., 02-2675 (La.07/02/03), 849 So.2d 38, 51. In David, the state’s highest court left open the issue of the constitutionality of La. R.S. 9:5628 as it applies to an action filed by a claimant with a disease whose latency period is greater than three years. The court stated in David that the jurisprudence addressing the applicability of La. R.S. 9:5628 to a cause of action brought by a plaintiff suffering from a disease with a latency period in excess of three years has been in a state of flux and remanded the matter to the trial court to allow the plaintiff to amend his petition to include a constitutional challenge. Id.

In Whitnell v. Silverman, 95-0112 (La.12/06/96), 686 So.2d 23, the supreme court held that the three-year statute of limitations set forth in La. R.S. 9:5628 did not violate the Louisiana Constitution’s equal protection provision as applied to the plaintiff, whose disease had a latency period of less than three years. In a footnote, the court observed that:

[t]his ruling by the Court does not address the constitutionality of La. R.S. 9:5628 as it applies to individuals with diseases that have latency periods in excess of three years. The court has basically declined to decide on this issue because it is not presently before it.

Whitnell, supra at 29, n. 13.

In his dissent in Whitnell, supra at 33, Justice Lemmon noted:

A case with a lengthy latency period might call for our reexamination of the Crier decision on the constitutionality of Section 5628. Section 5628 distinguishes not only between victims of medical malpractice and victims of other torts, but also between medical malpractice victims with injuries that manifest themselves within three years and victims with injuries that remain latent beyond three years. While such classifications are usually analyzed for equal protection purposes under a rational basis standard (the asserted rational basis being the perceived medical malpractice insurance crisis in the 1970s), there are also due process implications to the analysis.
There have been suggestions that only a small percentage of medical malpractice claimants are affected by a three year statute of repose. (Citation omitted). The converse, however, is equally true— only a small percentage of claims against health care providers are eliminated by such a statute. Depriving a few perhaps horribly injured innocent victims of their claims in order to relieve a few health care providers of late filing problems such as lost evidence, faded memories and unavailable witnesses appears to be fundamentally unfair, which is the hallmark of a due process violation. The medical malpractice victim, who has the ultimate burden of proof at trial, labors under the same difficulties caused by the late manifestation of an injury, which is not attributable to the victim.

Louisiana appellate courts which have been presented with attacks on the constitutionality of La. R.S. 9:5628 as it applies to diseases with latency | ¡/periods in excess of three years have upheld the statute on equal protection grounds. The parties in the instant case have likewise focused the majority of their argument to this court on whether La. R.S. 9:5628 meets constitutional muster from an equal protection standpoint. Pretermitting an analysis of La. R.S. 9:5628 for compliance with constitutional equal protection requirements, our focus is on whether the statute, as applied to a claimant such as Mrs. Walker, whose condition made it impossible for her to know or for any physician to diagnose her disease within the statutory period of limitations, comports with constitutional due process requirements.

The fourteenth amendment to the United States Constitution and Art. I, § 2 of the Louisiana Constitution guarantee freedom from the deprivation of life, liberty or property without due process of law. Crier, supra. The hallmark of property is an individual entitlement grounded in state law |fiwhich cannot be removed except for cause. Id. It is well settled that the right to file a damage suit in tort is a vested property right protected by the guarantees of due process. Walls v. American Optical Corp., 98-0455 (La.09/08/99), 740 So.2d 1262; Crier, supra; Lott v. Haley, 370 So.2d 521 (La.1979). When a party has a right, either to sue for a cause of action or to defend himself against one, that right becomes a vested property right which is given due process protection. Bourgeois v. A.P. Green Industries, Inc., 00-1528 (La.04/03/01), 783 So.2d 1251; Prejean v. Dixie Lloyds Insurance Co., 94-2979 (La.09/15/95), 660 So.2d 836.

The receipt of defective blood through a transfusion may lead to the development of a disease with a long latency period which cannot be diagnosed within the occurrence-oriented statute of limitations. These diseases can be devastating. A more egregious situation can hardly be conceived than for a claimant such as Mrs. Walker, who suffers from an incurable, debilitating disease which was contracted through no fault of her own, to be prevented from seeking of legal redress by the operation of the statutory limitation set forth in La. R.S. 9:5628, even though she could not have known of the disease. A claimant like Mrs. Walker is surely among the most blameless and seriously injured plaintiffs. To find La. R.S. 9:5628 constitutional as applied to plaintiffs who suffer from diseases with latency periods which prohibit their manifestation and discovery until well after the three-year, event-oriented period provided by Section 5628 would be to prevent a small number of the least blameworthy, yet most seriously injured claimants from having their day in court. To do so would divest such 17plaintiffs of their fundamental right to due process through the legal system while allowing defendant health care providers to avoid accountability and litigation.

Giving due deference to the function of the legislature, we limit our conclusion to hold that La. R.S. 9:5628 is unconstitutional as applied to these claimants. In declining to apply R.S. 9:5628 to bar plaintiffs’ cause of action in the instant case, we are finding that, while the Medical Malpractice Act, including its peremptive period, is rationally related to a legitimate government interest, reasonable medical costs, and readily available health care, the statute’s rote application in the case sub judice does not further such interests and ignores the rights of innocent medical malpractice claimants. To require a plaintiff to assert a claim before the alleged malpractice and resulting injury are discoverable imposes an impossible condition on her access to the courts and the pursuit of her tort remedy. As noted by the Indiana Supreme Court in Martin v. Richey, 711 N.E.2d 1273, 1284 (Ind.1999):

[T]he [Indiana] medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiffs access to courts and ability to pursue an otherwise valid tort claim. To hold otherwise would be to require a plaintiff to bring a claim for medical malpractice before becoming aware of her injury and damages, an essential element of any negligence claim, and this indeed would be boarding the bus to topsy-turvy land.

| ^Conclusion

Having found that La. R.S. 9:5628 is unconstitutional as applied to plaintiffs, Aiko and Paul Walker, we reverse the judgment of the trial court granting Bossier Medical’s exception of prescription and remand the matter to the trial court for further proceedings. Costs are assessed to defendant, Bossier Medical Center.

REVERSED AND REMANDED.

WILLIAMS, J., dissents with written reasons.

STEWART, J., dissents for reasons assigned by J. Williams.

hWILLIAMS, Judge,

I respectfully dissent.

I cannot agree with the analysis employed by the majority in reaching a result which is not supported by application of the statute as written or by prior jurisprudence. The majority has concluded that LSA-R.S. 9:5628 is unconstitutional based on the finding that plaintiffs have a cause of action which is a vested property right and that application of the statutory prescriptive period would divest that right without due process of law. The majority’s conclusion is erroneous.

No person shall be deprived of life, liberty, or property, except by due process of law. La. Const. Art. I, § 2. A statute violates due process when it does not bear a substantial relationship to an appropriate governmental objective. The test of substantive due process is whether the statute is reasonable in relation to the goal to be attained and has been adopted in the interest of the community as a whole. Everett v. Goldman, 359 So.2d 1256 (La.1978). We must consider Louisiana law to determine if plaintiffs have a property interest in bringing a cause of action that is protected under the due process clause. In order to file suit, a plaintiff must be able to state a cause of action, which arises upon the occurrence of a wrongful act and the existence of an injury resulting in damages. Walls v. American Optical Corp., supra; Crier v. Whitecloud, 496 So.2d 305 (La.1986).

In Louisiana, law is a solemn expression of legislative will. LSA-C.C. art. 1. Statutes of limitation are exclusively a legislative prerogative. In setting a statute of limitation, a legislature does not eliminate the remedy | ¿for a civil wrong, but makes a legislative determination that after a certain period of time no cause of action can arise. Our supreme court has held that the right to recover in tort is not a fundamental right. Crier, supra.

The Louisiana Supreme Court has determined that the legislative decision to limit medical malpractice actions to those situations where the injury occurs within three years of the act, omission, or neglect was substantially related to the state’s legitimate objective to stabilize insurance rates and thereby provide healthcare for the public at a reasonable cost. Thus, contrary to the majority’s finding, since plaintiffs did not file suit within the statutory time limit, they did not have a cause of action which constituted a vested property right protected by due process.

The majority fails to provide any Louisiana authority to support the conclusion that the Section 5628 prescriptive period is unconstitutional as applied to these plaintiffs, based on a finding that application of the statute does not further the state’s acknowledged legitimate interest in regulating medical malpractice claims to achieve reasonable medical costs. The cited case from another jurisdiction is not persuasive, since that decision is based on the Indiana court’s interpretation of the privileges and immunities clause and the open courts clause of that state’s constitution. Although application of the prescriptive period may not further the immediate interest of the plaintiffs in this case, the statute satisfies the due process requirement of adoption by the legislature in the interest of the community as a whole.

\xEqual Protection

The majority glaringly omits any discussion of the argument that application of LSA-R.S. 9:5628 denied the plaintiffs equal protection of the laws by discriminating on the basis of a physical condition, a tacit acknowledgment that this issue has been decided by Louisiana courts. However, since the parties in this case have devoted a substantial portion of their arguments to the equal protection implications of the prescriptive statute, I will address this issue.

Article 1, Section 3 of the Louisiana Constitution provides that a person shall not be denied the equal protection of the laws and that no law shall arbitrarily or unreasonably discriminate against a person because of physical condition. When a statute classifies persons on the basis of physical condition, the burden is on the state or other advocate of the law to prove that the classification has a reasonable basis. However, a law which classifies individuals on a basis outside the scope of La. Const, art. 1, § 3 will be upheld, unless a member of the disadvantaged class shows that the statute does not suitably further any appropriate state interest. Crier v. Whitecloud, 496 So.2d 305 (La.1986); Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985).

Here, plaintiffs argue that the three-year peremptory period is unconstitutional as applied to Walker because the statute discriminates on the basis of a physical condition by prohibiting a person who has a disease with a latency period in excess of three years from asserting a medical malpractice claim. Plaintiffs urge that the district court should not have | ¿relied on the Crier decision because the factual situation in that case differs from that of the present case.

In Crier, the physician implanted a metal rod in Crier’s back in 1978 to correct scoliosis. In March 1982, she began to experience severe back pain and learned that the rod in her back had broken. Crier filed suit within one year of this discovery, but more than three years after the date of her back surgery. Although these facts are not identical to the “latent disease” category involved in the present case, the difference is not so significant as to alter the analysis of the issue.

Whether a claimant’s delay in filing suit was due to a latent disease or an event that had not yet happened, Crier, like Walker here, could not have known of her injury before the end of the statutory limitation period. Nevertheless, the supreme court held that Crier’s equal protection rights were not violated because LSA-R.S. 9:5628 equally affects all persons who undergo medical treatment. The court stated that Section 5628 provides notice that malpractice claims will be barred if not filed within three years from the act, omission, or neglect. Crier, supra. The supreme court further stated that the statute is a legislative determination that three years is a reasonable period of time in which to assert a medical malpractice claim and does not create a classification which discriminates against class members because of their physical condition. Crier, supra.

In their brief, plaintiffs assert that claims involving diseases with latency periods exceeding three years must be distinguished from Crier. However, as previously stated, such a factual distinction is not so significant | Sas to preclude our application of the supreme court’s reasoning in Crier to the situation of the plaintiffs in the present case. Although the application of the limitation period of LSA-R.S. 9:5628 in this case leads to a harsh result, this court is constrained to follow our supreme court’s prior holding that Section 5628 does not discriminate on the basis of a physical condition in violation of the equal protection clauses of the United States or Louisiana Constitutions.

Consequently, to challenge the validity of Section 5628 on equal protection grounds, plaintiffs bore the burden of proving that the statute did not further an appropriate state interest. However, the plaintiffs failed to satisfy their burden in light of prior supreme court findings that the three-year limitation period was intended by the legislature to alleviate increased insurance costs attributed to the extended period available for filing medical malpractice claims and that the statute was rationally related to the state’s interest in securing reasonable medical costs and providing accessible health care. Crier, supra; Trahan v. Our Lady of Lourdes Regional Medical Center, Inc., 00-1140 (La.App. 3d Cir.01/31/01), 778 So.2d 1205.

After reviewing the statutory and case law and considering the circumstances of this case, I must conclude that LSA-R.S. 9:5628 is constitutional as applied to persons who, like Walker, have diseases with latency periods exceeding three years. Until the supreme court of this state rules otherwise or the legislature changes the statute, this law must be followed by this court. Therefore, the district court properly granted the defendant’s exception of prescription.

| Definition of Malpractice

The majority also omitted a discussion of the plaintiffs’ contention that application of Section 5628 differs between public and private medical care providers. In order to address each of the constitutional arguments raised by the plaintiffs, I will briefly discuss this issue.

The plaintiffs contend the disparity between the definitions of “malpractice” in the statutes regarding state and private health care providers violates Walker’s right to equal protection. Plaintiffs argue that because the language regarding liability of “health care providers for defects in blood” was deleted from the definition of malpractice in the Medical Liability for State Services Act (MLSSA), LSA-R.S. 40:1299.39, if plaintiff had received her blood transfusion at a state hospital, the prescriptive period of LSA-R.S. 9:5628 would not apply and her claim would not have been barred.

In David v. Our Lady of the Lake Hospital Inc., supra, the Louisiana Supreme Court considered the applicability of LSA-R.S. 9:5628 by looking at the clear and unambiguous language of the statute. Relevant to the concern raised by plaintiffs in their brief, the supreme court in David announced that “the application of LSA-R.S. 9:5628 to a plaintiffs claim does not depend on whether the hospital is a private hospital qualified under the MMA, a private hospital not qualified under the MMA., or a public facility. The statute states its prescriptive periods apply to claims brought against ‘any ... hospital.’ This language is as all inclusive as the statute’s provision that ‘[n]o action’ brought against ‘any ... hospital’ can escape thejjtime limitations enacted by the legislature in 1975.” Moreover, the supreme court stated that any potential constitutional challenge perceived with respect to the differences in the legislation for private hospitals and public institutions is averted by the application of LSA-R.S. 9:5628 to public and private hospitals.

Following the guidance of our supreme court and applying the plain language of the statute to the circumstances of the present case, I conclude that the prescriptive period of LSA-R.S. 9:5628 applies equally to actions for damages arising out of patient care against both state and private hospitals. Consequently, the plaintiffs’ argument is -without merit.

For the foregoing reasons, I would affirm the district court’s judgment finding that LSA-R.S. 9:5628 is constitutional as applied to the claims of the plaintiffs.

      . Plaintiffs contended that their claim had not prescribed under the general prescription articles on delictual actions, which have been construed to allow prescription to run from the time of the discovery of the harm. The trial court, however, held that La. R.S. 9:5628 was applicable and sustained defendant's exception. On appeal this court found that plaintiffs’ strict liability claim was one of medical malpractice because Mrs. Walker’s transfusion occurred after the 1976 amendment of La. R.S. 40:1299.41, the Medical Malpractice Act ("MMA”), which defined malpractice to include "all legal responsibility of a health care provider arising from defects in blood.” Thus, this court held that plaintiffs' medical malpractice action was subject to the prescriptive period of La. R.S. 9:5628 and affirmed the judgment granting the exception of prescription, but remanded for a hearing on plaintiffs’ constitutional claims. See Walker v. Bossier Medical Center, 30,715 (La.App.2d Cir.06/24/98), 714 So.2d 895, writ denied, 98-2029 (La.11/13/98), 730 So.2d 450.
      Subsequently, in Williams v. Jackson Parish Hospital, 00-3170 (La.10/16/01), 798 So.2d 921, the supreme court overruled this court's opinion in Walker, finding that a claim for damages caused by a transfusion of tainted blood was a strict liability claim and not one of medical malpractice subject to the prescriptive period of La. R.S. 9:5628. [Also overruled at that time was Boutte v. Jefferson Parish Hospital Services District No. 1, 99-270 (La.App. 5th Cir.07/27/99), 738 So.2d 1188, writ granted, 99-2402 (La.11/19/99), 750 So.2d 208, rev’d, 99-2402 (La.04/11/00), 759 So.2d 45.] The supreme court, however, recently overruled its decision in Williams, supra, holding that the R.S. 9:5628 prescriptive period is applicable to a strict liability claim for damages resulting from a blood transfusion. See David v. Our Lady of the Lake Hospital, Inc., 02-2675 (La.07/02/03), 849 So.2d 38.

      . In his concurring opinion on rehearing, Crier, supra at 312, Justice Lemmon noted his concerns that La. R.S. 9:5628 presents substantial issues regarding due process, equal protection, and access to the courts. Dissenting, Chief Justice Dixon opined that a statute which allows prescription to run before a tort victim knows or should know that he has been damaged violates the "adequate remedy” required by Art. I, § 22 of the Louisiana Constitution. Id. at 313.

      . See Jeter v. Shamblin, 34,225 (La.App.2d Cir.12/06/00), 774 So.2d 1071; Martini v. Louisiana State University Medical Center-Shreveport, 28,167 (La.App.2d Cir.01/22/97), 688 So.2d 642; In re Medical Review Panel of Conerly, 02-0485(La.App. 5th Cir. 12/30/03), 865 So.2d 198; Hardy v. Blood Systems, Inc., 01-0134 (La.App. 3d Cir.05/02/01), 794 So.2d 13, writs denied, 01-1395, 807 So.2d 234, 01-1928 (La.01/11/02), 807 So.2d 234; Trahan v. Our Lady of Lourdes Regional Medical Center, Inc., 00-1140 (La.App. 3d Cir.01/31/01), 778 So.2d 1205, writ denied, 01-0586 (La.01/11/02), 807 So.2d 226; Neal v. Pendleton Memorial Methodist Hospital, 99-0040 (La.App. 4th Cir.04/21/99), 733 So.2d 698, writ denied, 99-1870 (La.10/08/99), 751 So.2d 221; In re Medical Review Panel of Brown, 97-2803 (La.App. 4th Cir.07/01/98), 715 So.2d 1249, writ denied, 98-2020 (La.11/06/98), 728 So.2d 390, cert. denied, 526 U.S. 1050, 119 S.Ct. 1356, 143 L.Ed.2d 518 (1999); Doe v. Southern Baptist Hospital, 98-0063 (La.App. 4th Cir.05/06/98), 717 So.2d 654, writ denied, 98-1504 (La.09/04/98), 721 So.2d 917. But see In re Matter of Trahan, 03-1002 (La.App. 5th Cir.01/27/04), 866 So.2d 907, a case involving a claimant with a disease with a latency period in excess of three years, in which the Fifth Circuit, finding that the constitutional question was not properly before it for review, set aside the judgment sustaining defendant’s exception of prescription and remanded the matter to the trial court to allow plaintiff an opportunity to properly litigate the constitutional challenge.


author: |, STEWART, J.

text:
    David Andrew HICKS, Plaintiff-Appellee v. STEVE R. REICH, INC. and Steve R. Reich d/b/a Reich Builders, d/b/a Steve Reich Builders, Defendants-Appellants.
    No. 38,424-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.
    Marshall L. Samson, for Defendants-Appellants.
    Hudson, Potts & Bernstein, Monroe, by Ashley S. Burch, for Plaintiff-Appellee.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   |, STEWART, J.

At issue in this appeal is the validity of a default judgment. Because the default judgment in this case was not properly confirmed, the judgment is vacated and the case is remanded for further proceedings.

FACTS

The procedural issues presented by this appeal arise from a January 2003 lawsuit in which the plaintiff, David Andrew Hicks, claimed a privilege under the Private Works Act, as well as breach of contract, in connection with construction of a house in West Monroe, Louisiana. Plaintiff entered a preliminary default against defendants, Steve R. Reich, Inc., and Steve R. Reich d/b/a Reich Builders, on February 20, 2003. Without filing an answer, defendant, Steve R. Reich, Inc., subsequently filed an exception of no right of action; the other defendant, Steve R. Reich d/b/a Reich Builders, also without filing an answer, filed an exception of no cause of action. However, neither of the exceptions included a proposed order requesting the matter to be fixed for a hearing as required by Louisiana District Court Rule 9.8 or a supporting memorandum to the exceptions as required by Louisiana District Court Rule 9.9. After a letter from plaintiffs counsel to defendants’ counsel failed to prompt compliance with the rules, plaintiffs counsel filed a motion to strike the exceptions on April 21, 2003. The next day, the trial court signed an ex parte order striking the exceptions.

On May 6, 2003, the trial court confirmed the default judgment in favor of the plaintiff against both defendants in the sum of $6,927.04 plus judicial interest and costs. The judgment also ordered the release to the | ¡.plaintiff of $5,770.67 that had been placed in the registry of the court. The judgment recited that more than 15 days had elapsed since the date of service of the suit and citation upon the defendants, that a preliminary default had been regularly entered, and that more than two clear days had elapsed since the entry of the default judgment. The judgment also recited that the court had considered the law and the evidence presented by the plaintiff on May 6, 2002.

After notice of the confirmation of the default judgment was sent to defendants on May 9, 2003, they filed a motion to set aside the judgment and, alternatively, motion for new trial, on May 19, 2003. This was opposed by the plaintiffs. Defendants argued that they were deprived of due process because they received no notice of a hearing on the motion to strike the exceptions, and received no notice of an order to submit a memo in opposition to the motion to strike. They also argued that the order striking the exceptions was rendered ex parte even though a hearing was required under the provisions of La. C.C.P. art. 964 which addresses matters that may be struck from pleadings.

On July 23, 2003, the motion to set aside the default judgment and alternative motion for new trial were taken up and argued before the trial court. The parties declined to have the proceedings recorded by a court reporter, so there is no transcript of these proceedings in the appellate |srecord. Subsequently, the trial court signed a judgment denying both the motion to set aside and the motion for new trial. This appeal followed.

DISCUSSION ■

On appeal, the defendants have raised three assignments of error. In the first assignment of error, they contend that a certified letter was not mailed to counsel of record at least seven days, exclusive of holidays, before confirmation of the default judgment. The second and third assignments of error pertain to the use of an improper procedure to strike the exceptions and the failure to make a prima facie case in support of the default judgment. Because we find merit in the first assignment of error, we need not address the second and third assignments of error.

The provisions of La. C.C.P. art. 1702(A) state:

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.

As previously noted, the judgment stated that more than 15 days had elapsed since the date of service of the suit and citation upon the defendants, that a preliminary default was regularly entered, and that more than two clear days had elapsed since the entry of the preliminary default. However, the judgment did not indicate that notice of the date of the entry of the preliminary default was sent by certified mail to counsel for the defendants [4at least seven days, exclusive of holidays, before confirmation of the judgment of default as required by La. C.C.P. art. 1702(A). Instead, the record indicates that no such notice was sent.

Defendants argue that because they made an appearance of record in the case, they were entitled to notice as provided in La. C.C.P. art 1702(A). However, plaintiff asserts that the defendants waived this issue and are precluded from raising it on appeal, because they did not raise it before the trial court in their motion for new trial. Plaintiff also asserts that the issue has no merit because the defendants did not make an appearance of record as required by Article 1702. Plaintiff equates the striking of the exceptions from the record with striking the appearance of counsel. It is plaintiffs belief that because the exceptions were stricken from the record, Article 1702(A) regarding service on counsel is inapplicable. We disagree.

First, there is no requirement in the law that a party must raise an issue pursuant to a motion for new trial or else waive the issue for purposes of appeal. A party may elect to seek relief from the trial court through a motion for new trial if the party concludes that the trial court may be willing to grant such relief for the reasons given in support of the motion. However, a party instead may elect to proceed directly to the appeal.

Second, we conclude that the striking of the exceptions is not the equivalent of the striking of the appearance on the record of defendants through counsel. Official Revision Comment (b) to the 2001 amendments to Article 1702 states:

“Appearance of record” is intended to have the same meaning as in Article 1671, and include filing a pleading such as any 15one or more of the exceptions, appearing at a hearing, and formally enrolling as counsel of record. See the 1997 Comment to Article 1671.

In turn, the 1997 comment to Article 1671 states in pertinent part:

Appearance of record includes filing a pleading, appearing at a hearing, and formally enrolling as counsel of record.

A motion to strike is a means of clearing up the pleadings, not a means of eliminating causes of action or substantive allegations. Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-0345 (La.App. 3d Cir.6/20/01), 790 So.2d 93. Furthermore, the provisions of La. C.C.P. art. 1702(A) requiring notice prior to confirmation of default were added by amendment in 2001. The Official Revision Comment regarding that addition states:

The purpose of the 2001 amendment to this Article is to conform default procedure to the rationale set forth in Russell v. Illinois Central Gulf Railroad, 686 So.2d 817 (La.1997), that it is an “ill practice” to confirm a judgment of default, without notice, against a party that has already filed pleadings constituting an appearance of record in the litigation proceedings.

As provided in La. C.C.P. art. 852, pleadings allowed in civil actions consist of “petitions, exceptions, written motions, and answers.” Because the defendants herein had filed exceptions to the plaintiffs petition, an appearance of record had been made. The fact that the exceptions were struck on the technical grounds that they were not accompanied by an order does not erase the fact that an appearance of record was made. By filing the exceptions, the defendants made an appearance of record for purposes of La. C.C.P. art. 1702. The defendant’s appearance demonstrated in a formal way that they intended to litigate the rights of the parties. This appearance | fiof record was not erased by the striking which ordinarily would merely have been a method for bringing about the defendants’ compliance with the Rules for Louisiana District Courts.

After the striking of the exceptions, the plaintiffs preliminary default was still valid, and the striking of the defendants’ exceptions removed a procedural barrier to the plaintiffs ability to confirm the default. Compare Deville v. Orleans Oil Company of Lafayette, La., 454 So.2d 420 (La.App. 3d Cir.1984). Furthermore, the striking of the exceptions also arguably made inapplicable the requirement in La. C.C.P. art. 1001 that a defendant be given an additional 10 days in which to file an answer after an exception is overruled. However, for the reasons set forth above, the striking of the exceptions did not erase the plaintiffs obligation to refrain from confirming the judgment of default without notice to the defendants who had filed pleadings constituting an appearance of record. This conclusion is in harmony with the provisions of La. C.C.P. art. 5051 which state that the articles of the Code of Civil Procedure are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.

CONCLUSION

For the reasons set forth above, the default judgment herein is vacated at ap-pellee’s cost, and this matter is remanded to the district court for further proceedings.

VACATED AND REMANDED.

      . The court obviously meant May 6, 2003. We also note that the minutes of court for May 6, 2003, do not indicate the presence of the plaintiff, but simply indicate "Default confirmed.” There is no transcript of a hearing, but there are exhibits, including invoices and receipts, indicating a hearing occurred. However, the record contains no clerk’s certificate as required by District Court Rule 9.19.


author: hBROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Rodney Lashun GAY, Appellant.
    No. 38,393-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.
    Charles L. Kincade, for Appellant.
    Jerry L. Jones, District Attorney, Geary S.Aycock, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS, and CARAWAY, JJ.
   hBROWN, C.J.

Defendant, Rodney Gay, was indicted for second degree murder arising from the August 2001 homicide of Jerry George. After trial had commenced, defendant elected to enter a guilty plea to a reduced charge of manslaughter. The court sentenced defendant to serve 30 years at hard labor and denied a timely motion for reconsideration. On appeal, defendant argues that the sentence is excessive. We affirm the conviction and sentence.

Factual and Procedural Background

Defendant and the victim, Jerry George, were friends who were working together on an out-of-town construction project. The victim was dating defendant’s sister, Shuronda Gay. On the morning of August 16, 2001, the victim and Shuronda asked defendant if he wanted to ride with them to Walmart. The three rode to Walmart, to Citgo to get gas, and to the home of one of the victim’s friends. While there, an argument ensued between the victim and Shuronda. Defendant intervened to stop the fight, at which point the victim started a fight with defendant. The victim and defendant reconciled, and the three drove back to Shuronda’s apartment on Deloach Street in Monroe, Louisiana. After they arrived, defendant and victim resumed their argument. The victim left the apartment and started walking east on Deloach Street. Defendant caught up with the victim on Miller Street and shot him nine times with a .22 caliber pistol. The victim was transported to LSU Medical Center where he died as a result of the gun shots.

| ^Discussion

A trial court has broad discretion to sentence within the statutory limits. When a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Green, 34,676 (La.App.2d Cir.05/09/01), 787 So.2d 505. This is particularly true when the offense involves violence against the victim’s person. State v. Landos, 419 So.2d 475 (La.1982). Absent a showing of manifest abuse of that discretion a reviewing court may not set aside a sentence. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158.

Prior to imposing the sentence, the trial court considered a PSI report which detailed defendant’s social history, education, and employment record. The court noted that defendant, age 28, has five children. His record included prior convictions for distribution of cocaine, several misdemeanors, and one parole revocation. The report showed that defendant had been arrested in 2000 for simple battery, attempted aggravated assault with a firearm, and felon in possession of a firearm, but no record of the outcome was found. Defendant said that these were false charges filed by a former girlfriend which were dismissed after an investigation. Defendant conceded a conviction for misrepresentation during booking. The court noted that defendant had derived a substantial 13benefit from his plea bargain and that he had been on parole at the time of the homicide.

On this record, we do not find constitutional error. The sentence of 30 years at hard labor for manslaughter is a legal sentence. Defendant received substantial leniency from his plea agreement which reduced his exposure from a mandatory life sentence without benefit to a maximum of 40 years. The facts of the case and evidence of record would support a conviction of second degree murder. La. R.S. 14:30.1A(1). Considering the violent nature of the instant homicide, the sentence is neither grossly disproportionate to the severity of the offense nor, under the totality of the circumstances, is it shocking to our sense of justice. There is no showing of an abuse of the trial court’s broad sentencing discretion. Therefore, the claim of constitutional excessiveness is without merit.

Conclusion

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

AFFIRMED.


author: _JjLOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. James C. HOLLADAY, Appellant.
    No. 38,354-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Charles Kincade, Counsel for Appellant.
    Jerry L. Jones, District Attorney, Geary Aycock, Assistant District Attorney, Counsel for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   _JjLOLLEY, J.

Defendant, James C. Holladay (“Holla-day”), was charged with DWI (third offense), following an automobile accident involving two vehicles. He was tried by jury in the Fourth Judicial District Court, Parish of Ouachita, Louisiana, and was convicted as charged. Holladay now appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

On March 31, 1999, Holladay was involved in an automobile accident when the car he was driving was hit from the rear as he was turning into his driveway off Louisiana Highway 841 and Prairie Road. Trooper James McGee, (“McGee”) of the Louisiana State Police was dispatched to the scene to investigate the accident. Upon his arrival, McGee was told that Holladay sustained a cut on his head and was inside the ambulance. A paramedic attending to Holladay advised McGee that Holladay had a “strong odor of alcoholic beverage on his breath.” At trial, McGee testified that after he entered the ambulance, he noticed that Holladay’s breath had a “pretty strong” odor of alcohol and that his eyes were glassy. Holladay was transported to St. Francis Hospital, where the Horizontal Gaze Nystamus (HGN) test was administered. He scored the maximum score of six possible points, indicating that Holladay was intoxicated. When Holladay was discharged from the hospital, McGee took him to his police car. McGee testified that Holladay was unsteady on his feet and “very unsure with his movements.” While at police headquarters, McGee had Holladay perform other field sobriety tests. According to McGee’s testimony, Holladay was swaying and had to use his arms for balance when he did the one-leg stand latest. While performing the walk-and-turn test, McGee testified that Holladay began the test before told to do so, he did not touch heel-to-toe, he lost his balance while walking, he used his arms for balance, and he turned incorrectly. Holladay refused to take the breath-alcohol test. Following the field sobriety tests, McGee interviewed Holla-day, whereupon he admitted that he was driving his vehicle when the accident occurred. Upon further questioning, Holla-day admitted that he had been drinking prior to the accident, although he stated that he had only one beer. Based on the field sobriety tests and observations of Holladay, McGee was of the opinion that despite the elapse of time since the collision, Holladay “was still over the legal limit of alcohol.” Following these events, Holladay was arrested.

On April 27,1999, Holladay was charged by bill of information with Driving While Intoxicated (Third Offense). A trial on the merits began on February 3, 2003. During trial, Holladay filed a Motion to Quash. Subsequent to hearing all the evidence in the case, the trial judge denied Holladay’s motion. Holladay was found guilty as charged by a unanimous jury. On February 10, 2003, Holladay was sentenced to serve four years at hard labor with the first 30 days to be served without probation, parole or suspension of sentence. The remaining portion of the sentence was suspended and Holladay was placed on five years supervised probation. Holladay was also fined $2,000, as required by La. R.S. 14:98, plus court costs. This appeal by Holladay ensued.

1 ¿DISCUSSION

Holladay raises two assignments of error on appeal. In his first assignment of error, Holladay contends that the evidence was insufficient to sustain the conviction because the arresting officer found no evidence that Holladay was operating his vehicle in an erratic or unsafe manner. Although the record does not reflect that Holladay filed a motion for post-verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.02/26/97), 691 So.2d 1273.

To convict an accused of driving while intoxicated, the prosecution need only prove that the defendant was operating a vehicle, and he was under the influence of alcohol or drugs. La. R.S. 14:98; State v. Self, 36,887 (La.App.2d Cir.04/09/03), 842 So.2d 1240; State v. Withers, 36,001 (La.App.2d Cir.06/12/02), 821 So.2d 556.

The standard of appellate review for a sufficiency of the evidence claim 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 (1979); State v. Bell, 37,675 (La.App.2d Cir.09/26/03), 855 So.2d 946. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Braswell, 605 So.2d 702 (La.App. 2d Cir. 1992).

| intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330, 1334 (La.1983); State v. Self, supra. Some behavioral manifestations, independent of any scientific tests such as blood or breath alcohol tests, are sufficient to support a charge of driving while intoxicated. The behavioral manifestations that are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. State v. Self, supra; State v. Holley, 32,156 (La.App.2d Cir.08/18/99), 742 So.2d 636. It is not necessary that a conviction for DWI be based upon a blood or breath alcohol test and the observations of an arresting officer may be sufficient to establish a defendant’s guilt. State v. Self, supra; State v. McDonald, 33,013 (La.App.2d Cir.03/01/00), 754 So.2d 382.

In the instant case, the record indicates that at the time of his arrest, Holladay admitted that he was the driver of his vehicle, and he also admitted to drinking a beer. Although Holladay did not take the breath test, nor was a blood test administered, in McGee’s opinion Holladay appeared intoxicated and failed the various field sobriety tests administered to him. As erratic operation is not an element of the offense, Holladay’s argument of insufficient evidence to sustain his conviction of driving while intoxicated is without merit. Therefore, this court finds that the evidence presented clearly supports the verdict.

In his second assignment of error, Holladay complains that the trial court erred in failing to grant his Motion to Quash the use of his 1996 conviction as a predicate offense. Holladay takes the position that in thejjguilty plea phase of his 1996 conviction, the trial court failed to advise him of the enhanceable nature of the offense or of the penalties involved.

To convict a defendant of driving while intoxicated, third offense, the state must show that the defendant had two other valid convictions. La. R.S. 14:98(D). It is well established that a guilty plea be free and voluntary on the part of the defendant. Boykin v. Alabama, 395 U.S. 288, 89 S.Ct. 1709, 23 L.Ed.2d 273 (1969). In the instant case, Holladay contests the validity of his 1996 conviction of DWI. At trial, the state offered evidence of Holla-day’s 1996 conviction, which consisted of the bill of information, a copy of the traffic ticket and the minutes. The minutes and the transcript of the 1996 guilty plea shows that Holladay was represented by counsel and that he was advised of his right to a trial, to remain silent and to confront any witnesses, i.e., that there was compliance with Boykin, supra.

In State v. Anderson, 1998-2977 (La.03/19/99), 732 So.2d 517, the supreme court held that advice as to sentencing exposure has never been part of the core Boykin requirements for the entry of a presumptively valid guilty plea.

Holladay does not cite any authority for the proposition that failure to advise him of the enhanceable nature of the offense or the penalties involved renders a guilty plea invalid. Since it has been held that the rule in Boykin has not been expanded to included that a defendant be advised that his guilty plea may be used in future multiple bill proceedings, we find there is no merit to that portion of Holladay’s complaint. State v. Walters, 591 So.2d 1352 (La.App. 4th Cir.1991), writ denied, 584 So.2d 1171 (La.1991).

In conclusion, the evidentiary challenge mounted by the defense concerns a matter which is not an element of the offense and, therefore, lacks merit. Additionally, there is no showing that the trial court erred in denying Holladay’s Motion to Quash. So considering, Holladay’s conviction and sentence is affirmed.

AFFIRMED.


author: bBROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Alan B. JAMES, Appellant.
    No. 38,353-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Kenota Pulliam Johnson, Louisiana Appellate Project, Counsel for Appellant.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, Laura O. Wingate, Ron C. Stamps, Assistant District Attorneys, Counsel for Appellee.
    Before BROWN, PEATROSS, and DREW, JJ.
   bBROWN, C.J.

After a bench trial, defendant, Alan James, was found guilty of second degree murder and sentenced to the mandatory term of life imprisonment without benefit. Defendant has appealed his conviction. We affirm.

Facts

The victim, Nicholas Cox, on leave from the United States Navy, had returned to his home in Bossier City, Louisiana, during the month of November 2001. While at home, he visited with family and friends. Cox was scheduled to return to duty in Virginia on Monday, November 26, 2001.

On Saturday, November 24, 2001, the victim left Bossier City on his way to Virginia to return to military duty. Before beginning his trip to Virginia, Cox stopped to see defendant, a friend of his, who resided with his sister Tameka in Shreveport, Louisiana. Cox and defendant left in Cox’s 1996 white Ford Crown Victoria to get something to eat from the corner store. Defendant was armed with a .32 black automatic pistol “for protection.” The gun belonged to defendant’s friend Jeremy Gray. Cox and defendant left the store, with defendant driving because Cox was eating. There was no evidence of an argument or bad blood between the two friends on that date.

During the afternoon of November 24, 2001, Nicholas Cox received a fatal gunshot wound to the head while inside his Crown Victoria. There were no witnesses to the shooting, and the weapon was not recovered. Defendant admitted to shooting Cox with the .32 automatic that defendant had in his possession. Defendant, however, claimed that the shooting was | ¡>, accidental. According to defendant, while driving, he took the gun out of his pants. Cox saw the gun and asked defendant whether the weapon was loud when it was fired. Defendant rolled his window down, put his left arm out the window and fired the gun, which then jammed. Defendant stated that he attempted to clear the jam with his left hand on the handle and trigger and his right hand on top of the gun. Defendant stated that he was still driving while trying to clear the jam in the handgun and the weapon fired just as Cox was leaning forward to put his trash onto the passenger floorboard. The bullet struck Cox in the head. Defendant put Cox’s body in the trunk of the car and drove around for approximately two hours, stopping at the homes of two friends and his own residence before driving to Greenwood where he buried Cox’s body in a wooded area.

On November 27, 2001, the parents of Nicholas Cox filed a missing persons report with the Bossier City Police Department, because they had not heard from their son since he left to return to active duty on November 24, 2001. On November 27, Cox’s mother, Verandia Sanders, received a call from an employee of Sarpy Medical Clinic, who informed her that her 1996 Ford Crown Victoria was sitting in their parking lot on Jewella Avenue in Shreveport. Mrs. Sanders called the Shreveport Police Department to inform them of the location of the car.

SPD officers went to the lot in which the car had been abandoned. The officers observed large amounts of bloodstains inside the car and later found bloodstains in the trunk of the vehicle, along with some of Nicholas pCox’s personal items. Their investigation led them to the residence of Tameka James, with whom defendant lived. After a search of Ms. James’ home, authorities found a pair of blood-spattered, tan Timberland boots belonging to defendant. The police sought to question defendant regarding the victim’s disappearance, having determined that defendant was the last person to see Nicholas Cox. They learned, however, that defendant had hopped a Greyhound bus to San Diego, California, on the same day that the victim’s car had been found abandoned in the medical clinic’s parking lot.

Thereafter, two telephone conversations between defendant and his sister Tameka were recorded. In the first conversation on November 30, 2001, defendant gave a general description as to how to find the body of Nicholas Cox, but authorities were unable to locate the body going by those directions. In the second call on December 5, 2001, defendant gave more specific details on the location of Cox’s body. Defendant never stated during either of the two recorded conversations that he had shot Nicholas Cox. Instead, defendant related that someone told him where Cox’s body could be found. After the December 5 telephone call, police were able to locate the body of the victim, which was buried underneath brush and wood in a well-hidden area off of Shirley Frances Road in Greenwood, Louisiana.

After recovering the body, detectives from the SPD went to San Diego to arrest defendant for the murder of Nicholas Cox. While in California, defendant gave three videotaped versions of how Cox was killed. First, defendant stated that an unknown black male came up to the driver’s side window of Cox’s car and asked the victim whether he was [¿Nicholas Cox. When Cox answered affirmatively, the man shot Cox in the head. Defendant claimed that he then moved Cox’s body to the passenger seat and began driving the victim’s vehicle. When authorities expressed their disbelief, defendant then stated that while Cox was playing around with the gun, he shot himself in the head. Finally, defendant gave the version of events that he related at trial. In this third and final account, defendant stated that the shooting was an accident. According to defendant, while he was trying to clear a jam in the gun, it fired, striking Cox in the head.

Defendant was extradited to Shreveport. On the flight back, after being read his rights, defendant voluntarily wrote a statement. In this written account, defendant again expressed that the shooting of Nicholas Cox was accidental. Defendant was charged with second degree murder. After defendant waived his right to a jury trial, a bench trial was held. The trial court found defendant guilty as charged. Defendant’s trial attorney filed several post-trial motions which were denied. Defendant received the mandatory sentence of life imprisonment without benefit. This appeal ensued.

Discussion

Sufficiency of the Evidence

Defendant argues that the evidence presented by the state was insufficient to convict him of second degree murder. Specifically, he contends that the evidence failed to show that he had the intent to kill or inflict great bodily harm on Nicholas Cox.

IfjThe standard of appellate review for a sufficiency of the evidence claim 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 (1979); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.09/27/00), 768 So.2d 687, writs denied, 00-3070 (La.10/26/01), 799 So.2d 1150, 01-2087 (La.04/19/02), 813 So.2d 424. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

In order to prove the elements of second degree murder, the state was required to prove beyond a reasonable doubt that defendant killed Nicholas Cox while possessing the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1(A)(1).

In the instant case, defendant admitted that he shot and killed Nicholas Cox. However, because of defendant’s claim that it was an accidental shooting, the state had to show that defendant possessed the specific intent to kill Cox. The state did not have the burden to prove specific intent as a fact; instead, this element of the offense could be inferred from the circumstances surrounding the case, as well as from the 1 ^actions of defendant. State v. Fuller, 414 So.2d 306 (La.1982); State v. Davies, 35,783 (La.App.2d Cir.04/05/02), 813 So.2d 1262, writ denied, 02-1562 (La.05/09/03), 843 So.2d 389; State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989).

Detective Rod Demery’s testimony was one of the first officers to arrive at the victim’s abandoned car which was parked in the Sarpy Medical Clinic lot. He testified regarding the blood found inside Cox’s vehicle and in the trunk. Det. Demery also stated that defendant’s residence was about a block from the Sarpy Medical Clinic. He also noted that in the search of the James’ home, a pair of blood-spattered tan Timberland boots was recovered from defendant’s bedroom. Thereafter, two conversations between defendant and his sister Tameka were taped, a résult of which led to recovery of the victim’s body from a wooded area in Greenwood, Louisiana. Detective Demery noted that the body was buried under brush and woods at least 600 feet from the roadway in an opening along a trail.

Dr. George McCormick, Caddo Parish Coroner, stated that Cox died from a gunshot wound to the head. According to Dr. McCormick, the bullet entered the victim’s head above and behind his left ear and went from left to right in a slightly downward direction, through the skull and brain, exiting out the right side of his head just above and in front of his right ear. Dr. McCormick also testified to a marginal abrasion of soot at the entrance wound. He explained that this finding meant that the gun used to kill Cox was held only a few inches from his head. This testimony was in direct conflict with the version of the shooting told by defendant to the authorities.

17Crime scene investigator Skylar Van Zandt testified as to the large amount of blood in the victim’s car on the front passenger seat and in the rear floorboard of the passenger side. Specifically, Officer Van Zandt noted that the passenger seat was saturated with blood and that there was not a significant amount of blood found on the front passenger floorboard area, front dashboard, or passenger compartment. There was also blood on the plastic trim on the lower threshold of the passenger door. Officer Van Zandt noted that on the upright pillar on the front passenger side door, there was an indentation consistent with a low velocity or medium bullet impact.

Captain Mark Rogers, who was qualified as an expert in firearms instruction and crime scene investigation, revealed that the mark on the panel of the passenger door indicated a downward angle from a projectile. This was consistent with the testimony of Dr. McCormick regarding the path of the bullet that killed Cox. Capt. Rogers also testified that, after reviewing Dr. McCormick’s autopsy report, he agreed that the presence of soot around the entry wound indicated that the gun was in close proximity to the victim’s head. Capt. Rogers stated that the mark on the pillar of the passenger door was not consistent with someone clearing a jammed gun and it misfiring as defendant claimed. Capt. Rogers went on to state that it was highly unlikely that anything other than a projectile caused the indentation in the panel on the passenger side door. Capt. Rogers testified that the bloodstains in Cox’s vehicle support the conclusion that the victim was sitting upright in the passenger seat and not leaning forward as defendant contended.

| ^Defendant acknowledged that he shot Nicholas Cox. He also admitted that he put the victim’s body in the trunk of the ear and rode around, visiting friends for approximately two hours. Defendant failed to seek any type of medical attention for Cox, and he purposely concealed the victim’s body in a rural area where it was highly unlikely that the body would have ever been located but for the fact that defendant told his sister where the body could be found. When authorities found the victim’s body, it had not been just “dumped,” but was covered with brush and wood and was nearly 600 feet from the nearest roadway. After disposing of the body, defendant threw away his bloodied clothes in a garbage dumpster at a mall. When giving a statement to police, defendant gave three different versions of how the shooting occurred. The testimony of the state’s witnesses was inconsistent with the version of events related by defendant. In short, none of the evidence, other than defendant’s own statement to police, supports defendant’s claim that the shooting was accidental.

Based on the evidence presented, the trial court found defendant guilty as charged. The testimony of the state’s witnesses presented evidence that, when taken as a whole, could have led a rational trier of fact to find that the elements of second degree murder were established beyond a reasonable doubt. The evidence failed to support defendant’s claim that the shooting was an accident. Furthermore, the testimony of the state’s witnesses showed that it was highly unlikely that the shooting occurred as defendant claimed.

This assignment of error is without merit.

Expert Testimony

Defendant claims that the state failed to comply with his motion for discovery and inspection by making no reference to expert witnesses but then calling Captain Mark Rogers to testify as such. According to defendant, the state’s violation of discovery resulted in prejudice constituting reversible error, and the trial court abused its discretion by allowing Capt. Rogers to testify.

The discovery rules, La. C. Cr. P. art. 716 et seq., are intended to eliminate any unwarranted prejudice which could arise from surprise testimony. State v. Toomer, 395 So.2d 1320 (La.1981); State v. Harris, 627 So.2d 788 (La.App. 2d Cir.1993), writ denied, 93-3188 (La.03/18/94), 634 So.2d 851. Not every failure by the state to comply with these rules automatically requires a reversal; however, when such a failure results in prejudice to the defendant, it does constitute reversible error. Thus, in the event the state failed to comply with the discovery rules, it must be determined whether defendant was actually prejudiced by the nondisclosure and whether the trial court abused its discretion. Additionally, the effects of a discovery violation may be remedied by effective cross-examination. State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Harris, supra; State v. Powell, 598 So.2d 454 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

Defendant argues that the state’s failure to provide the name of its expert witness, Mark Rogers, a firearms instructor and crime scene analyst, violated the discovery rules and resulted in prejudicial error.

[inPrior to being qualified, Captain Rogers testified that he received training in instruction on firearm use and specialized training in the handling of handguns and rifles. He also testified that he had received specialized training in crime scene analysis and reconstruction. He stated that he has consistently attended classes on crime scene analysis, some held internationally.

Captain Rogers’ testimony was presented by the state in an attempt to refute defendant’s claim that the killing of Nicholas Cox was an accident. Capt. Rogers was not contacted until a week before trial and after all discovery motions by the defendant had been submitted and satisfied. The state did not receive any reports or written findings by Capt. Rogers. The prosecution did notify defense counsel the day before trial that Capt. Rogers would be testifying. Counsel was given an opportunity to speak with the witness beforehand to find out the substance of his testimony. Therefore, defendant’s attorney knew before Capt. Rogers testified and before conducting his cross-examination what the officer’s testimony would be. Although the trial court denied defendant’s counsel’s request for an expert prior to the cross-examination of Capt. Rogers, defense counsel was given an opportunity to reassert the motion after cross-examination. The court stated, “At this point I’m denying your request for an expert based on my reasons previously stated. If there is an issue that you feel only an expert supplied by you may resolve then you may reurge your motion and we’ll discuss it at that time.” Defense counsel did not reassert the motion for an expert.

InEven if this court were to find that the testimony of Capt. Rogers was a surprise, defendant has failed to show what prejudice he suffered because of it. Dr. McCormick’s compelling testimony related the same information, albeit in a more specific way. Further, the trial court stated that common sense, not expert testimony, let the court know that the victim was sitting upright, not leaning over, when he was shot. Defendant’s allegations of surprise and prejudice are general and conclusory in nature, with no reasoning in support. Furthermore, there was no reference to any place in the record which supports these claims.

This assignment is meritless.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . The car had been recently purchased by the victim, and Mrs. Sanders had cosigned for the loan.