author: | TRAYLOR, J. LKNOLL, Justice,

text:
    STATE of Louisiana v. Chance CEASER.
    No. 2002-K-3021.
    Supreme Court of Louisiana.
    Oct. 21, 2003.
    Rehearing Denied Dee. 12, 2003.

      Richard P. Ieyoub, Attorney General, Earl B. Taylor, District Attorney, Alisa A. Gothreaux, Counsel for Applicant.
    G. Paul Marx, Lafayette, R. Neal Walker, New Orleans, Counsel for Respondent.
   | TRAYLOR, J.

Defendant, Chance Ceaser, was charged by Bill of Information with two counts of battery of a police officer in violation of La.Rev.Stat. 14:34.2(B). The jury returned a guilty verdict on both counts, but found that the second count produced no injury requiring medical attention. The trial court sentenced defendant to two years at hard labor on the first count and gave him a concurrent sentence of six months on the second. The Court of Appeal, Third Circuit, reversed the conviction and ordered the acquittal of the defendant upon a finding that the police had no probable cause to arrest the defendant for resisting an officer and, therefore, the defendant had the right to resist the unlawful arrest. 2002-374 (La.App. 3 Cir. 10/2/02), 828 So.2d 680. Upon the state’s application, we granted certiorari to review the correctness of that decision. For the reasons that follow, we reverse the court of appeal and reinstate defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On April 9, 2001, at approximately 2:30 p.m., the Eunice City Police received a telephone call from the home of Ms. Millie Ceaser, reporting a domestic disturbance involving the homeowner’s adult son, Chance. Officer Kevin Noel and Sergeant Baxton Troy Stagg of the Eunice City Police responded to the report and heard defendant arguing with his mother and brother, Shaun, as they approached. Upon arriving at Ms. Ceaser’s home, Officer Noel and Sgt. Stagg observed defendant | ¡.arguing with his mother and brother in the kitchen. Ms. Ceaser insisted that the police remove defendant from her home. The officers were familiar with defendant due to a history of disturbances which had caused his mother to request his removal from her home in the past. The officers entered the home and asked defendant to leave peacefully so that he could cool off and avoid an escalation of events. On this occasion, however, defendant refused to leave voluntarily, loudly saying he was not “f — ing leaving.”

In an attempt to defuse the situation, Sgt. Stagg took hold of defendant’s arm to escort him out of the home. In response, the defendant jerked his arm away from the officer. At this point, the officers informed defendant that he was under arrest and both officers attempted to grab hold of defendant to secure and handcuff him. Defendant began grabbing at various items on Sgt. Stagg’s duty belt: pepper spray, handcuffs, radio, and gun. As the struggle progressed, defendant scratched Sgt. Stagg’s face with his fingernails, bit him, and grabbed and tore Sgt. Stagg’s flashlight from his duty belt and struck Sgt. Stagg on his head, behind the left ear. Sergeant Stagg withdrew and expanded his collapsible baton and struck defendant several times. Sgt. Stagg later testified that the blows, which are intended to temporarily paralyze the thigh muscle of assailants, “didn’t have any effect upon him.”

Meanwhile, Officer Noel attempted to restrain defendant in what he termed “a violent struggle,” only to receive a blow to his own head with the flashlight defendant wielded. Officer Noel sustained a two-inch laceration to the top of his head which required five or six stitches. Defendant retreated to his bedroom and was apprehended outside the home. Thereafter, defendant was charged with two counts of battery of a police officer in violation of La.Rev.Stat. 14:34.2(B).

At trial, Sgt. Stagg testified regarding the procedure the police follow when they receive a complaint of a disturbance at a residence. He stated that two officers will respond to the call to “find out what’s going on, just investigate to the best of our ability with the attitudes of the people when we get there. Normally, separate them to try to defuse the situation. It depends on how bad the arguing is or if any batteries may have been committed.” Regarding the instant call, Sgt. Stagg testified that the ^defendant was placed under arrest when he refused to be escorted out of the house. Sgt. Stagg stated that after defendant refused to leave the home voluntarily, they attempted to escort him out “by the arm” which is a common procedure.

Officer Noel testified that after Ms. Ceaser asked that defendant be removed from her house, the officers “went to escort him out by his arms and he started struggling” and hit Sgt. Stagg on the left side of his head with a flashlight. Defendant then struck Officer Noel over his head with the flashlight, causing the laceration. Officer Noel stated that the defendant was placed under arrest for resisting the officers and “very violently” refusing to leave the home. Officer Noel testified that the defendant had not struck anyone before he was arrested.

The jury found the defendant guilty on both counts, but determined that only the battery of Officer Noel required medical attention and merited an increased sentence. The trial court accordingly sentenced defendant to two years at hard labor on the first count and gave him a concurrent sentence of six months on the second.

The Court of Appeal, Third Circuit, reversed the conviction and acquitted the defendant upon a finding that the police had no probable cause to arrest the defendant for resisting an officer and, therefore, the defendant had the right to resist the unlawful arrest. 02-374 (La.App. 3 Cir.10/2/02), 828 So.2d 680.

DISCUSSION

In order for the State to obtain a conviction for battery of a police officer, it must prove the elements of the crime beyond a reasonable doubt. Battery of a police officer has three elements: the intentional use of force upon a police officer, without the consent of the officer, when the offender knows or should reasonably know that the victim is a police officer acting within the performance of his duty. LSA-R.S. 14:34.2. The sufficiency of evidence of the crime is viewed the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

The testimony adduced at trial indicates that the uniformed officers responded to a call to remove defendant from the home and that they instructed the defendant to leave the home in accordance with him mother’s wishes. The officers had previously |4removed the defendant from the home for similar disturbances. The jury also heard testimony that defendant was instructed that he was under arrest. Given the circumstances of this case, we find that the jury could have properly found, after viewing the evidence in the light most favorable to the prosecution, that defendant intentionally used force upon the police officers, without the consent of the officers, when he knew or should reasonably have known that the victim is a police officer acting within the performance of his duty.

Once the elements of La.Rev.Stat. 14:34.2 are satisfied, a defendant can defeat his conviction only by showing that the battery was justified and in defense of an unlawful arrest. Thus, the issue is whether the police had lawful grounds, or probable cause, to arrest the defendant. An individual in Louisiana has a time-honored right to resist an illegal arrest. City of Monroe v. Goldston, 95-0315 (La.9/29/96), 661 So.2d 428; White v. Morris, 345 So.2d 461, 465 (La.1977). However, that right is only available where the arrest is illegal and is tempered by the requirement that in preventing such illegal restraint of his liberty, he may use only “such force as may be necessary.” City of Monroe v. Ducas, 203 La. 971, 14 So.2d 781, 784 (1943).

Here, the appellate court incorrectly reasoned that the police had no valid grounds to arrest defendant, which resulted in the further erroneous conclusion that defendant was justified in resisting an unlawful arrest. Nevertheless, the court of appeal considered if “probable cause for arresting him might have been supportable on some other ground.” The court of appeal then examined La.Code Crim. Proc. art. 213 and concluded that the officers had “no reason to believe that the defendant had committed an offense, nor did he commit an offense in their presence after they arrived at the house.”

The Third Circuit purportedly canvassed the Criminal Code to determine whether the police had probable cause to arrest defendant for any offense, but neglected to properly consider a valid rehearing argument made by the state in its prehearing application: that the police had probable cause for the arrest under La. Rev.Stat. 14:63.3(A), which provides the owner of any immovable property with the authority to order anyone from the premises. The court of appeal neglected to address this applicable and determinative statute.

As this court has noted on several occasions, La.Rev.Stat. 14:63.3 prohibits entering or remaining in places or on land after being forbidden to do so, either orally or in writing. State in the Interest of J.A.V., 558 So.2d 214 (La.1990); State v. Johnson, 381 So.2d 498 (La.1980). The statute “requires a reasonably contemporaneous or written request to leave as an indispensable element of the offense.” Id. In the instant case, both of these elements are unquestionably satisfied.

Further, the record clearly establishes that both Ms. Ceaser and the police officers made contemporaneous requests, and in fact made several such requests, for the defendant to leave the premises. When the defendant refused to do so, the officers had probable cause to arrest him on the basis of his violation of La.Rev.Stat. 14:63.3(A) and did so by verbally informing him that he was under arrest and attempting to secure him with handcuffs.

We further note that what the officers subjectively believed or testified that they believed when they placed the defendant under arrest is not necessarily relevant to the outcome of this case, as the lone dissenter would have this court find. Both State and Federal Constitutions require that “seizure” of person by law enforcement official be founded upon objective justification; when seizure takes the form of an arrest, the police officer must have probable cause to believe the person arrested has committed an offense. La. Const. Art. 1, § 5; U.S.C.A. Const. Amend. 4; La.Code Crim. Proc. art. 213; Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Hathaway, 411 So.2d 1074 (La.1982). As this court has previously explained:

| (¡Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution in the belief that the accused has committed an offense. Probable cause to arrest is not absolute cause, and to determine its existence, courts must examine facts and circumstances within the arresting officer’s knowledge in light of the experience of reasonable people, not legal technicians. (Citations omitted)

State v. Scales, 655 So.2d 1326 (La.1995). Furthermore, probable cause, and not absolute certainty, is the test to be applied in judging the validity of an arrest, and all possible lawful explanations of a situation need not be negated before making an arrest. State v. Winfrey, 359 So.2d 73 (La.1978); State v. Phillips, 347 So.2d 206 (La.1977).

In applying these principles to the case at hand, we find there was probable cause to arrest the defendant. Prior to placing the defendant under arrest, both officers were informed by Ms. Ceaser that she wanted the defendant out of her home because he was causing a disturbance and fighting with Ms. Ceaser and his brother. On several occasions during the instant incident, the defendant did not comply with this mandate and finally refused to leave the home. The fact that the defendant remained on the premises after being ordered to leave and where he was forbidden to remain constituted an offense in progress. See Lewis at 1084. From the totality of these facts and circumstances the officers clearly had probable cause to arrest the defendant for several violations, including La.Rev.Stat. 14:68.3.

The evidence provides that Officer Noel and Sgt. Stagg had responded to previous reports from the home and had successfully defused the situations without any violence or cause for arrest. The officers were, therefore, familiar with the household and the problems caused by defendant within the household. On this occasion, the officers had used entirely reasonable measures involving the minimal force of grasping defendant’s arm to escort him outside. The defendant resisted by wrenching his aim from the officer’s grasp and announcing his resolve to remain on the premises against the wishes of the homeowner. In the process of attempting to make a lawful arrest by placing defendant in handcuffs to lead him outside, the officers l7sustained the blows inflicted by their own equipment wielded in defendant’s hands in an unjustified use of force to resist the lawful arrest. Defendant was thus not justified in his use of violence to oppose the officers’ performance of their official duties and the court of appeal erred in concluding otherwise. We further note that even if the arrest were not legal, the amount of force the defendant used exceeded that which was reasonably necessary to prevent the arrest. Therefore, the verdict of the trial court was correct.

CONCLUSION

The Third Circuit erred by reversing defendant’s convictions for battery on a police officer. In this domestic dispute, which escalated into violence directed at the police, the police had probable cause to arrest defendant for remaining on the premises after being asked to leave. La. Rev.Stat. 14:63.3. The Third Circuit mistakenly reasoned that defendant was justified in resisting an arrest that was not grounded in probable cause. For the forgoing reasons, we find that the evidence clearly supports that the police officers had lawful grounds upon which to arrest the defendant. The evidence substantiates the defendant’s conviction for two counts of battery of a police officer in violation of La.Rev.Stat. 14:34.2. Accordingly, we reinstate the jury’s verdict against defendant, as well as the sentence imposed by the trial court.

KNOLL, J., dissents and assigns reasons.

LKNOLL, Justice,

dissenting.

I respectfully disagree with the majority’s ruling that the Court of Appeal erred in reversing defendant’s convictions for battery on a police officer, and dissent for the following reasons.

The Third Circuit held that the “police did not have probable cause to arrest [defendant] for resisting an officer and therefore, he had the right to resist the unlawful arrest.” State v. Ceaser, 02-374, p. 2-3(La.App. 3 Cir. 10/2/02), 828 So.2d 680, 681. I agree.

At trial, Officer Noel testified that the reason why the defendant was placed under arrest was because “he’d started resisting us” by refusing to leave his home. Under Louisiana law, La. R.S. 14:108, in pertinent part, defines the offense of resisting an officer:

A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.

La.Rev.Stat. § 14:108(A) (2003). In the present case, the only way the defendant could have resisted the officers is if the two officers, Noel and Stagg, were acting under the authority of law in making an arrest. Stated simply, for resisting arrest, the |2officers first had to have probable cause to arrest the defendant, and most importantly, then placed the defendant under arrest for an offense before arresting him.

Based upon the testimony of the officers, the defendant did not resist arrest. Rather, the defendant refused to leave his home, and the officers took his refusal to leave as resistance. Only after he refused to leave and pulled his arm away from the grasp of Sgt. Stagg was the defendant informed that he was under arrest: “Well, when I first tried to escort him, he jerked away... .And I said, Well, you’re under arrest.’ ” (Testimony of Sgt. Stagg). As clearly seen in the record, the defendant was not under arrest when he resisted the officers’ order for him to leave his home. Of critical importance is that the defendant was not resisting arrest because he had not been placed under arrest for an offense when he first refused to leave his home after the police officers ordered him to do so.

Under the statutory provisions of La. R.S. 14:108, however, the majority argues that if the officers were acting in their official capacity, a fact which neither party contests in this case, and were authorized by law to make an arrest, then the defendant committed the crime of resisting an officer. To succeed in this argument, the majority needs to show that the officers, prior to the defendant’s refusal to leave his home, had the authority under law to make an arrest, e.g., they had probable cause to arrest him for an offense. Clearly, the record shows they did not.

The majority opinion fails to even address the issue of the defendant’s | ¡¡knowledge, more specifically the resister’s knowledge of his arrest or impending detention, which is the essential element of resisting arrest. Significantly, in State v. Gros, 216 La. 103, 43 So.2d 232, 233 (1949), this Court ruled that “scienter is an essential element of the offense of resisting an officer.” Id. at 233. “Essential to a conviction under R.S. 14:108 is the defendant’s knowledge of his arrest or impending detention.” State v. Nix, 406 So.2d 1355, 1357 (La.1981); State v. Freeman, 411 So.2d 1068, 1071 (La.1982); State v. Hines, 465 So.2d 958, 962 (La.App. 2nd Cir.1985), writ denied, 467 So.2d 536 (La.1985). An arresting officer must inform the defendant of his intention to arrest. Nix, 406 So.2d at 1357.

In the Nix case, which involved facts stronger than the present case, this Court reversed a conviction for resisting arrest because of the failure to first place the defendant under arrest. In Nix, an officer went to a residence to investigate a report of a domestic disturbance. At the home, the officer found the defendant outside the backdoor speaking to the homeowner, who was inside. The homeowner explained in court that during the course of their discussion defendant lapsed into foul language and began accusing her of interfering in his marriage and causing his divorce. Also, it was revealed that the defendant had been placed under a peace bond to prevent his intrusion upon the household. In an effort to investigate the allegations, the officer told the defendant that the best thing for everyone involved was for the defendant to leave the residence and suggested that the defendant drive to the sheriffs office for questioning. The officer followed the defendant. Near the sheriffs office, the defendant accelerated and crossed the state line into Texas. The defendant was stopped in Texas by a Texas constable. When he returned to Louisiana a short while later, he was arrested and formally charged with disturbing the peace and resisting arrest. Nix, 406 So.2d at 1356-57.

14At trial, the officer testified that defendant was not placed under arrest until he returned to Louisiana after fleeing the state. Given the officer’s testimony and the statute’s requirement that an officer convey to the defendant his intention to arrest, this Court found that not only had the officer not informed defendant of his intention to arrest, but the officer expressly stated that the defendant had not been arrested. This Court reversed defendant’s conviction of resisting an officer. Nix, 406 So.2d at 1357.

In the present case, as in the Nix case, the officers testified that the defendant was not arrested until he resisted Sgt. Stagg’s order to leave, nor was the defendant informed of the officers’ intention to arrest until he resisted. Even though the majority attempts to find that the officers had probable cause, the majority is not able to satisfy this essential element of resisting an officer because the defendant was not under arrest, nor was the defendant informed of the officers’ intention to arrest him prior to his resisting the officers. Since the resistance preceded the arrest and the conveyance of the intention to arrest, the officers had no authority to arrest the defendant for the offense of resisting an officer.

The defendant’s refusal to comply with the officers’ order was the reason why the officers arrested him. Importantly, before the defendant first resisted the officers, the record shows there is absolutely no probable cause to support an arrest for any crime. Without probable cause for an offense, the arrest for resisting an officer in this case is rendered unlawful. State v. Lindsay, 388 So.2d 781 (La.1980). A citizen has the right to resist an unlawful arrest and may use such force as may be necessary. White v. Morris, 345 So.2d 461, 466 (La.1977).

Moreover, in the State’s failure to show the existence of probable cause to support an arrest, remarkably the State changed its mind as to the underlying offense for arrest, and in its rehearing application in the Court of Appeal for the first time informed defendant he was being arrested for a violation of La. R.S. 14:63.3. Still remarkably, this statute is not at all responsive as to why the police were called by the defendant’s mother and is totally out of sync with the facts of this case. This statute was first enacted in 1960 in response to racial “sit-in demonstrations” and later amended in 1978 to assist sportsmen with leased properties. This absurd maneuver |fiby the State clearly demonstrates the weaknesses of the State’s case, and more importantly, clearly deprives the defendant of his fundamental constitutional right to present a defense. La. Const, art. 1, § 16. This unconstitutional tactic by the State, which the majority sanctions, sets a dangerous precedent and renders criminal pre-trial discovery motions meaningless if allowed to stand.

In the present case, the defendant was originally charged and booked with: (1) disturbing the peace; (2) criminal damage to property; (3) resisting an officer; (4) attempted disarming of a police officer: (5) aggravated battery; and (6) aggravated second-degree battery. At arraignment, the State formally charged the defendant with two counts of battery on a police officer. Of the seven crimes for which the defendant was at one time charged, none of them fall within the provisions of La. R.S. 14:63.3, defining the offense of Entry on or Remaining in Places or on Land After Being Forbidden.

|7The State and the majority, in attempting to argue the application of La. R.S. 14:63.3 as a justification for finding probable cause to arrest defendant when the defendant was arrested, are essentially denying this defendant his constitutional right to present a defense and to be informed of the nature and the cause of the accusations against him. This is nothing more than a search by the State for probable cause to justify an unlawful arrest of the defendant for engaging in a verbal non-assaultive argument with his brother. Finding that the police in this case had probable cause to arrest the defendant for an offense at the moment the arrest took place would yield this absurd and unconstitutional result, and it is for these reasons that I do not find that the statutory provisions relied upon by the majority apply in this case.

      . Defendant signed his name "Chanse Ceaser” on several documents in this record. His surname is also alternatively spelled "Ceasar” in the record.

      . While we do not find error in the court of appeal's summary rejection of the applicability of La.Rev.Stat. 14:103, relative to disturbing the peace, to the instant intra-family argument, we do not necessarily agree with remainder of the court's determinations but pretermit discussion of the applicability of the Protection from Family Violence Act, La. Rev.Stat. 46:2140, as we find the state succeeds on other grounds.

      . La.Rev.Stat. 14:63.3(A), provides, in pertinent part:
      No person shall without authority go into or upon or remain in or upon or attempt to go into or upon or remain in or upon any structure, ... or immovable property, which belongs to another ... after having been forbidden to do so, either orally or in writing ... by any owner, lessee, or custodian of the property or by any other authorized person.

      . Ms. Ceaser, the defendant’s mother, explained at trial that she and the defendant lived in the home together. Also, Ms. Ceaser testified that she did believe that the house was the defendant's residence. Ms. Ceaser testified at trial that when the defendant was living with her part of his income did go towards paying the bills of the house. The house, it was revealed at trial, is being purchased by Ms. Ceaser. Ms. Ceaser pays monthly notes in the amount of $248. When questioned as to her sources of income, Ms. Ceaser stated that she was a student at LSUE in Eunice, Louisiana, and listed her disability check and the defendant's disability check as her income.

      . In the absence of a warrant, the issue of a lawful arrest hinges on the finding of probable cause. La.Code Crim. Proc. art. 213 (2003); State v. Raheem, 464 So.2d 293, 296 (La.1985).

      . Lewis, 386 So.2d at 1086; City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); State v. Lopez, 256 La. 108, 235 So.2d 394 (1970); City of Monroe v. Ducas, 203 La. 971, 14 So.2d 781 (1943); Joseph, 759 So.2d at 140; Green, 706 So.2d at 537; McCoy, 546 So.2d at 244; Siggers, 490 So.2d at 721.

      . Lindsay, 388 So.2d at 782; Lewis, 386 So.2d at 1083; Lyons, 342 So.2d at 199; Ducas, 14 So.2d at 784; State v. Daigle, 95-1260 (La.App. 3 Cir. 6/11/97), 701 So.2d 685, 688.

      . La. R.S. 14:63.3(A) provides:
      No person shall without authority go into or upon or remain in or upon or attempt to go into or upon or remain in or upon any structure, watercraft, or any other movable, or immovable property, which belongs to another, including public buildings and structures, ferries, and bridges, or any part, portion, or area thereof, after having been forbidden to do so, either orally or in writing, including by means of any sign hereinafter described, by any owner, lessee, or custodian of the property or by any other authorized person. For the purposes of this Section, the above mentioned sign means a sign or signs posted on or in the structure, watercraft, or any other movable, or immovable property, including public buildings and structures, ferries and bridges, or part, portion or area thereof, at a place or places where such sign or signs may be reasonably expected to be seen.
      La.Rev.Stat. § 14:63.3(A) (2003).

      . First enacted by 1960 La. Acts 78, § 1, La. R.S. 14:63.3 was a product of a record-breaking output of legislation, including the passage of 35 acts and the proposal of four constitutional amendments, "apparently spurred by impending integration of the public schools in Orleans Parish and a rash of so-called 'sit-in' demonstrations.” Donald H. Wollett, Legislative Symposium—Race Relations, 21 La. L.Rev. 87, 85 (1960-1961). Although "many of these acts do not purport, on their face, to deal with segregation or any other aspect of race relations as such .... [i]t seems likely, however, on the basis of the facts set forth in legislative debates, discussions, and comments, that in operation they will affect primarily the Negro population of the state.” Wollett, supra at 85, n. 1. Resulting from the "efforts of the legislature, sitting in special session, to block the implementation of Brown v. Board of Education," La. R.S. 14:63.3 "made participation in so-called 'sit-in' demonstrations a very hazardous business.” Wollett, supra at 92-93.

      . The provision of the statute regarding immovable property was added by an amendment to the statute in 1978. See 1978 La. Acts 694, § 1. Minutes from the May 18, 1978 meeting of the House Committee on Administration of Criminal Justice stated:
      [T]he R.S. 14:63.3 as it is presently written penalized the entry or remaining upon "any structure, watercraft, or any other movable, including public buildings and structures, ferries, and bridges after being forbidden.” The proposed statute expands the scope of places covered to include "any structure, watercraft, or any other movable or immovable property.” Mr. Guidry explained that the state statute on criminal trespass is weak and his bill is an effort to strengthen this law. Upon questioning by Mr. Kimball, Mr. Guidiy advised this bill was to assist sportsmen and their organizations to gain and keep control of leased property.

      . A defendant has a constitutional right to "be informed of the nature and cause of the accusations against him.” La. Const. art. 1, § 13; State v. Brown, 26,651 (La.App. 2 Cir. 3/1/95), 651 So.2d 929, 932, writ denied, 95-1147 (La.9/29/95), 660 So.2d 855. This constitutional requirement that a defendant be informed of the nature and cause of the accusations against him serves to protect the defendant's right to prepare a defense and to exercise fully his rights of confrontation and cross-examination. State v. Johnson, 93-0394 (La.6/3/94), 637 So.2d 1033, 1034-35. The State, therefore, is required to inform the defendant in sufficient particularity of the nature and cause of the accusations against him "so that he is able to prepare for trial, to allow the court to determine the admissibility of the evidence, and to afford the defendant protection from subsequent prosecution for the same offense.” State v. Marcal, 388 So.2d 656, 659 (La.1980), cert. denied, 451 U.S. 977, 101 S.Ct. 2300, 68 L.Ed.2d 834 (1981), reh’g denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). All essential facts necessary to describe the nature and cause of the offense must be incorporated in the initial criminal charge against the defendant, whether brought by indictment or information. Gros, 43 So.2d at 233; State v. Toney, 205 La. 451, 17 So.2d 624, 625 (1944); Schleve, 775 So.2d at 1187.

      . La.Rev.Stat. §§ 46:2121-2142 (2003).


source: Caselaw Access Project

author: _jjKIMBALL, Justice. I t CALOGERO, Chief Justice,

license: Public Domain

text:
    STATE of Louisiana v. Frank W. KANG.
    No. 2002-K-2812.
    Supreme Court of Louisiana.
    Oct. 21, 2003.
    Rehearing Denied Dec. 12, 2003.

      Richard P. Ieyoub, Attorney General, Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Asst. District Attorney, Thomas J. Butler, Jr., Counsel for Applicant.
    Robert S. Glass, Glass & Reed, New Orleans, Counsel for Respondent.
   _jjKIMBALL, Justice.

In the instant case, we granted a writ of certiorari to determine whether a trial judge erred in refusing to strike a prospective juror for cause. After reviewing the entire record of the prospective juror’s voir dire, we conclude that the trial judge did not abuse her broad discretion when she denied the defendant’s challenge for cause based on remarks the prospective juror made that allegedly revealed his bias towards police testimony. For the reasons that follow, we find the prospective juror’s responses, when viewed as a whole, do not reveal facts from which his bias, prejudice or inability to render a judgment according to law and evidence may be reasonably implied. The judgment of the court of appeal to the contrary is reversed, and the case is remanded to the court of appeal for it to consider the defendant’s remaining assignment of error.

FACTS AND PROCEDURAL HISTORY

On March 4, 2000, the defendant, Frank W. Kang, and a group of friends were involved in a confrontation with another group of individuals at a Metairie nightclub. _[¿After security broke up the fight, the participants left the premises in three separate vehicles, each traveling in the same direction on Causeway Boulevard. Defendant, who was a passenger in one of the vehicles, fired several shots into one of the other vehicles. One of the shots struck the driver of the other vehicle in the neck and severed his carotid artery.

On April 6, 2000, a grand jury indicted the defendant for one count of second degree murder in violation of La. R.S. 14:30.1. On November 16, 2000, a Jefferson Parish jury found the defendant guilty as charged. On August 8, 2001, the defendant moved for a new trial based on the trial court’s refusal to strike a prospective juror, Lawrence Whitcomb, for cause. The trial court denied the defendant’s motion and sentenced the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The defendant sought review based on two assignments of error. In his first assignment of error the defendant claimed the trial court should have stricken Mr. Whitcomb for cause because he openly expressed a predisposition in favor of the State and police witnesses during voir dire and expressed an inability or reluctance to follow the law. The court of appeal determined that the trial court erred when it failed to excuse Mr. Whitcomb for cause because his voir dire testimony clearly indicated he would give more weight to the testimony of a police officer than to that of a lay witness. Therefore, the court of appeal reversed the defendant’s conviction and sentence and remanded the case to the trial court for a new trial, pretermitting a discussion of the remaining assignment of error. State v. Kang, 01-1262 (La.App. 5 Cir 10/29/02), 831 So.2d 409.

We granted the state’s application for certiorari to determine whether the court of appeal correctly concluded that the trial court abused its discretion in refusing to 1 ¡¡strike prospective juror Whitcomb for cause. State v. Kang, 02-2812 (La.4/21/03), 847 So.2d 1176.

LAW AND ANALYSIS

Prejudice is presumed when a trial court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Robertson, 92-2660, p. 3 (La.1/14/94), 630 So.2d 1278, 1280. This is because an erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Cross, 93-1189, p. 6 (La.6/30/95), 658 So.2d 683, 686. Therefore, to prove there has been an error warranting reversal of a conviction and sentence, a defendant need only show: (1) the trial court’s erroneous denial of a challenge for cause; and (2) the use of all of his peremptory challenges. Cross, 93-1189 at p. 6, 658 So.2d at 686; Robertson, 92-2660 at p. 3, 630 So.2d at 1281.

The defendant in this ease exhausted all of his peremptory challenges; therefore, we need only determine the issue of whether the trial judge erroneously denied the defendant’s challenge for cause of Mr. Whitcomb. Thus, as a starting point, we note that under La.C.Cr.P. art 797, a defendant may challenge a juror for cause if:
(2) the juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient grounds for challenge to a juror, if he declares, and the court is satisfied, that he can render and impartial verdict according to the law and the evidence; ...
(4) The juror will not accept the law as given to him by the court.

Initially, Mr. Whitcomb stated that his next door neighbor was a Major in charge of the Jefferson Parish Street Crimes Unit. Upon further questioning about his relationship with his neighbor, he indicated he could put any previous conversations with his neighbor aside in deciding this case and that he never heard anything about [ 4this case. When asked if he would be able to be a fair and impartial juror in light of his association with his neighbor, Mr. Whitcomb responded, “[w]eighing testimony equally, I’m going to probably tend to put more weight on the Deputies, especially if it’s on things they have observed.” Mr. Whitcomb also indicated that he would initially regard the defendant as innocent. Further, Mr. Whitcomb indicated that even though he thought defendant probably did something wrong to end up in court, he would not hold it against the defendant nor would he hold the fact that the defendant was arrested against him. When asked what his vote would be after hearing all the evidence he thought defendant “maybe did this,” Mr. Whitcomb stated his vote “would probably be Not Guilty.” When Mr. Whitcomb was asked whether he would automatically disbelieve a defendant and/or whether he thought a defendant would say whatever it took to get off the hook, Mr. Whitcomb responded, “No.” Additionally, when asked whether he would want someone like himself as a juror if he was on trial for second degree murder, Mr. Whitcomb responded, “Yes.” He stated that he would vote “not guilty” if the state could not prove beyond a reasonable doubt that the defendant was not engaged in self-defense.

Defendant arg-ues that Mr. Whitcomb is not impartial because during his voir dire testimony he insisted that he would probably credit police witnesses over lay witnesses in any credibility contest and, further, that the trial court never succeeded in rehabilitating him. Additionally, the defendant avers that when Mr. Whitcomb was questioned about his relationship with his neighbor, he took the opportunity to voice his attitude on the credibility of policemen and did not mince words about his opinion.

Generally, an individual who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve as a juror. State v. Allen, 380 So.2d 28, 30 (La.1980); State v. Jones, 282 So.2d 422, 431 (La.1973). However, a mere relationship between a prospective juror and a law enforcement officer is not of itself grounds to strike the juror for cause. State v. Anthony, 98-0406, p. 24 (La.4/11/00), 776 So.2d 376, 392; State v. Smith, 430 So.2d 31, 38 (La.1983). Additionally, a prospective juror’s seemingly prejudicial response is not grounds for an automatic challenge for cause, and a trial judge’s refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. State v. Lee, 559 So.2d 1310, 1318 (La.1990); State v. Baldwin, 388 So.2d 664, 671-72 (La.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981); Allen, 380 So.2d at 30. But, a challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render a judgement according to law may be reasonably implied. State v. Hallal, 557 So.2d 1388, 1389-90 (La.1990).

When defendant challenged Mr. Whit-comb for cause, the trial court further questioned Mr. Whitcomb regarding his earlier responses about police testimony and the following exchange took place:

Q: Mr. Whitcomb, you were asked a question with regard to whether you would give Deputies more credibility as witnesses than others. The law says that every witness- — -that the credibility of each witness must be decided separately, based upon the testimony of that witness. You can’t, as a matter of law, give anyone’s testimony more weight just because they’re Deputies.
A: I don’t see how people can honestly say—
Q: If you don’t think you honestly can, then that—
A: I mean, you know, if I have to. You know, you’re asking people as if they’re trained experts on certain things. So you know, some parts of their testimony, depending on what it is, I’m going to put — you know, I mean if you ask |fia Deputy if he remembered what somebody was wearing, over somebody else, I’ll probably believe him because-
Q: If you what?
A: If you ask two eyewitnesses, and one is a Deputy and one is not.
Q: You don’t think, because he is trained.
A: Because he is trained and he takes, you know, they’re trained on that. I mean, I’m trained on certain things. And you know, I have to put more value on that, I mean, honestly, you know. I mean just to say I’m not going to — I’m going to disbelieve somebody just because they’re — you know, that’s the case. When I’m looking at two statements people make, I have to be honest, you know. I have to—
Q: Okay; I understand. Thank you.
A: So that’s what my answer was. That’s what I was trying to say.
Q: I understand; okay.

Following this exchange, the trial court denied defendant’s challenge for cause of Mr. Whitcomb. In denying the challenge, the trial court determined that Mr. Whit-comb was not saying that he would give a deputy’s testimony more weight just because he or she was a deputy. Rather, the trial court found that Mr. Whitcomb’s voir dire testimony was that he would give weight to a deputy’s training in the area of observation.

In State v. Lee, 93-2810 (La.5/23/94), 637 So.2d 102, this court reiterated the broad discretion afforded trial courts’ rulings on motions to strike jurors for cause because of their ability to get a first person impression of prospective jurors during voir dire. We characterized our jurisprudence as follows:

We have repeatedly held that a trial judge is vested with broad discretion in ruling on challenges for cause, and only where it appears, upon review of the voir dire examination |7as a whole, that the judge’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will this Court reverse the ruling of a trial judge....

Lee, 93-2810 at p. 9, 637 So.2d at 108 (quoting State v. Passman, 345 So.2d 874, 880 (La.1977)).

This standard is utilized since the trial court has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning. Anthony, 98-0406 at p. 25, 776 So.2d at 392. Such expressions and intonations are not readily apparent at the appellate level where a review is based on a cold record. Lee, 93-2810 at p. 9, 637 So.2d at 108.

A review of the entire voir dire record reveals that the trial court did not abuse its discretion in denying defendant’s challenge for cause of Mr. Whitcomb. Mr. Whitcomb did not state he would give more weight to an officer’s testimony regarding anything outside of his or her powers of observation, nor did he state he would automatically believe the testimony of an officer simply because he was a police officer. He simply indicated that because police officers are trained in powers of observation, he would probably give more weight to their observations. This testimony, in and of itself, does not rise to the level of a prejudicial statement such that the trial court was required to rehabilitate the prospective juror. Further, Mr. Whitcomb agreed he would initially presume defendant to be innocent and stated he would vote “not guilty” if the State did not prove beyond a reasonable doubt that the crime was not committed in self-defense. The trial court heard Mr. Whitcomb’s testimony and observed his expressions and mannerisms. After review of the record, we cannot find the trial court abused its discretion in denying defendant’s challenge for cause as to Mr. Whitcomb.

Both in brief and oral argument, the defendant places much emphasis on Mr. IsWhitcomb’s use of the word “probably” in response to defense counsel’s question regarding his likely vote if he thought “maybe” the defendant was guilty. The voir dire transcript of defense counsel’s question and Mr. Whitcomb’s response reads as follows:

Q: If you were a juror that decided this case, and after having heard all of the evidence in the case, you thought that maybe the Defendant did this?
A: Maybe, it would probably be Not Guilty.

The defendant argues that “probably” indicates Mr. Whitcomb’s unacceptable hesitancy to find the defendant not guilty if the state fails to prove its case beyond a reasonable doubt. However, we note that Mr. Whitcomb first used the word “probably” when he stated that he would “probably” tend to believe the testimony of police officers over that of lay witnesses; therefore, if we were to give “probably” the inference that the defendant desires, we would not be here in the first place. It seems that Mr. Whitcomb did not utilize the word “probably” to demonstrate his “insistence” on crediting police testimony or out of an unwillingness to follow the law as provided by the trial court, but rather, it seems that Mr. Whitcomb utilized the word more from his hesitancy to answer questions in a process to which he was unaccustomed.

In reversing the judgment of the trial court, the court of appeal found Mr. Whitcomb “clearly indicated that he would give more weight to the testimony of a police officer than a lay witness.” Kang, 01-1262, p. 12 (La.App. 5 Cir 10/29/02), 831 So.2d 409, 415. Further, the court of appeal found that Mr. Whitcomb never unequivocally indicated he could disregard his initial bias toward police officers. Id. These conclusions are not supported by the record and demonstrate the court of appeal’s failure to give proper deference to the trial court’s findings. Mr. Whit-comb’s responses during voir dire should be viewed as a whole, not on a piecemeal basis. Lee, 93-2810 at p. 9, 637 So.2d at 108. Though some of Mr. Whitcomb’s remarks or references could be viewed as questionable standing alone and out of context, when the voir dire is properly reviewed as a whole, there is no evidence of Mr. Whitcomb’s partiality. The record supports the trial court’s conclusion that Mr. Whitcomb did not state he would give an officer’s testimony more weight simply because he was employed as a police officer. The court of appeal erred in concluding that Mr. Whitcomb’s voir dire testimony clearly indicates his predisposition towards the testimony of a police officer than to that of a lay witness. Moreover, it is apparent from this conclusion that the court of appeal incorrectly failed the give the trial court’s conclusions any degree of deference. Properly reviewing the voir dire record as a whole, we find no facts from which we may reasonably imply Mr. Whitcomb’s bias, prejudice or inability to render a judgment according to law.

In sum, the court of appeal should not have disturbed the trial court’s proper refusal to strike Mr. Whitcomb for cause. The defendant’s assignment of error is without merit. Therefore, we reverse the court of appeal’s judgment to the contrary and remand this case to the court of appeal to consider the defendant’s remaining assignment of error.

DECREE

For the reasons assigned, the judgment of court of appeal is reversed and the case is remanded to the court of appeal for it to consider defendant’s remaining assignment of error.

REVERSED and REMANDED.

CALOGERO, C.J., dissents and assigns reasons.

I t CALOGERO, Chief Justice,

Dissenting:

I agree with the decision of the Fifth Circuit Court of Appeal reversing the defendant’s conviction and remanding the case to the district court for new trial. The court of appeal made a studied and correct application of the law as applied to the voir dire examination in this case, and, in reversing the conviction, did what it probably perceived as an unpleasant duty^ — reversed a conviction on a charge of second-degree murder. I would respect conscientious attention to their responsibility by the appellate court judges and affirm their resolution in this case, for the following reasons as well.

The prospective juror at issue, Lawrence Whitcomb, never veered from his view that he would give more weight to the testimony of a police officer than to the testimony of a lay witness because of his belief that the officer is trained to observe details. Mr. Whitcomb’s statements provided grounds to support the defendant’s challenge for cause under La.Code of Crim. Proc. art. 797(2) and (4), because they showed both that Mr. Whitcomb was “not impartial” and that he would “not accept the law as given to him by the court.”

Further, the court’s efforts to rehabilitate the juror failed to elicit a neutral response. Mr. Whitcomb did state that he understood the State’s burden of negating a claim of self-defense beyond a reasonable doubt and indicated that if the State failed |2to meet its burden in the defendant’s case he would vote to acquit. Mr. Whitcomb further stated that he would not automatically reject any testimony by the defendant as self-serving and unworthy of belief, that he would not hold the defendant’s arrest against him as proof he had done something wrong, and that he would want himself on the jury if he were the defendant in this case. On the other hand, Mr. Whitcomb also indicated only somewhat grudgingly that he would accord the defendant his presumption of innocence, and noted his belief that the defendant had “probably” done something wrong because he was appearing in court. Mr. Whitcomb further said that “it would depend on the crime,” when asked whether it is preferable to acquit the guilty than convict the innocent. In State v. Hallal, 557 So.2d 1388 (La.1990), this court stated as follows:

[A] challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.

Proper application of the above rule in this case requires that the appellate court decision be affirmed.

As defendant had exhausted his allotted peremptory challenges, he is entitled to a presumption of prejudice from the court’s failure to grant his challenge for cause. State v. Robertson, 92-2660, p. 3-4, (La.1/14/94), 630 So.2d 1278, 1280; State v. Ross, 623 So.2d 643, 644 (La.1993). Further, as revealed by the above summary of Mr. "Whitcomb’s statements, the record as a whole reveals that the district court abused its discretion when it denied the defendant’s challenge for cause. Thus, the appellate court correctly reversed defendant’s conviction and remanded for new trial. I would affirm that decision.


author:
| TRAYLOR, J. | JOHNSON, J.
      hWEIMER, J.,

text:
    Lois LAZARD, et al. v. Sheriff Charles FOTI, et al.
    No. 2002-CC-2888.
    Supreme Court of Louisiana.
    Oct. 21, 2003.
    Rehearing Denied Dec. 12, 2003.

      L. Joseph Hassinger, Jr., Timothy R. Richardson, Usry, Weeks & Matthews, New Orleans, Counsel for Applicant.
    Patrick H. Hufft, Hufft & Hufft, Kendall P. Green, New Orleans, Counsel for Respondent.
   | TRAYLOR, J.

This matter arises out of a wrongful death action filed by the parents of a sixteen year old juvenile, who was improperly incarcerated in the Orleans Parish Correctional Center for adults instead of the Orleans Juvenile Facility. He was released from the center after fourteen days but not into his parents’ custody, and killed by the criminal act of a third party almost twelve hours later. Suit was filed against Sheriff Foti, as criminal sheriff of the Parish of Orleans, the City of New Orleans, and XYZ Insurance Company, alleging that Sheriff Foti was negligent in holding the juvenile at the Orleans Parish Prison and releasing him without notifying his parents. The Civil District Court of Orleans Parish denied Sheriff Foti’s motion for summary judgment. Supervisory writs were filed, and the Fourth Circuit Court of Appeal denied defendants’ writ application. We granted defendant’s writ of certiorari. We reverse the lower courts and hold that the risk that a juvenile will be killed almost twelve hours after his release from an adult prison is not within the scope of protection of a criminal sheriffs duty to transfer a juvenile detainee held in an adult prison to an appropriate juvenile detention 12center. We further find that La. CiiCode art. 817 is a bail provision and thus does not impose a duty on the sheriff in relation to a juvenile whose charges were dropped.

FACTS AND PROCEDURAL HISTORY

On May 23, 1996, Frank Lazard, III (“Frank”) was arrested on the charge of second degree battery. Although he was sixteen years old at the time, the Orleans Parish Criminal Sheriffs Office’s (“OPC-SO”) “motions database,” which was maintained by the New Orleans Police Department, indicated he was seventeen years old. Frank confirmed this erroneous age at booking. Based upon this information, Frank was sent to the adult facility and remained there until the District Attorney dismissed his charges on June 6, 1996. At approximately 12:25 p.m., OPCSO released Frank from the adult facility located at 2800 Perdido Street. Frank was killed the next morning at approximately 12:20 a.m. in the 1900 block of Ursuline Street, almost 12 hours after his release.

Frank’s parents filed a wrongful death action against Charles Foti, individually and in his capacity as Sheriff of Orleans Parish, the City of New Orleans, and XYZ Insurance Company, the insurers of Sheriff Charles Foti (“Sheriff Foti”). In their Petition for Damages, the plaintiffs alleged that Sheriff Foti arrested their son in May of 1996 and improperly held him at the adult facility instead of transferring him to a juvenile facility despite being provided numerous notices that the child was under the age of seventeen years. The plaintiffs also alleged that Sheriff Foti failed to notify the parents when their son was released from Central Lockup on June 6, 1996.

In response, Sheriff Foti filed a Motion for Summary Judgment arguing that even if OPCSO had been informed that the child was a juvenile, they had no duty to notify |3the parents prior to his release, and the risk that the child would be killed twelve hours after his release was outside the scope of the alleged duty.

After a hearing, the trial court denied Sheriff Foti’s Motion for Summary Judgment without written reasons. Thereafter, Sheriff Foti applied for supervisory writs, which the Fourth Circuit denied. Lazard v. Foti, 02-2172 (La.App. 4 Cir. 11/26/02). Sheriff Foti then filed a writ of certiorari with this court which was granted. Lazard v. Foti, 02-2888 (La.2/14/03), 836 So.2d 119.

DISCUSSION

This court has adopted a duty-risk analysis to determine whether liability exists under the particular facts presented. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176. Under this analysis, the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Posecai v. Wal-Mart Stores, Inc., 1999-1222 (La.11/30/99), 752 So.2d 762, 765. Under the duty-risk analysis, all four inquiries must be affirmatively answered for the plaintiff to recover. Id.

DUTY

The first issue presented for our review is whether Sheriff Foti owed a duty to Frank to either transfer him to an appropriate juvenile detention center or, alternatively, to release him to the custody of his parents.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6 (La.7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Sav. & Loan, 98-1601, 98-1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204. The inquiry is whether the |4plaintiff has any law, statutory or jurisprudential, to support his claim. Roberts v. Benoit, 605 So.2d 1032, 1043 (La.1991) (affirmed on rehearing).

The plaintiff first argues that Sheriff Foti had a duty to transfer Frank, a minor, to a juvenile facility based on La. Ch.Code art. 822(C). We agree. Article 822(C) provides that “no child subject to the jurisdiction of the juvenile court shall be held in an adult jail or lockup.” When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La Civ.Code ann. art. 9 (West 2003). Accordingly, it is clear from the plain language of this article that the sheriff had a duty not to keep Frank in an adult facility. It follows from Article 822(C), therefore, that the sheriff should have transferred a minor held in an adult prison to an appropriate juvenile detention center.

Alternatively, the plaintiff argues that La. Ch.Code art. 817 imposes an additional statutory duty on Sheriff Foti to release a juvenile to the custody and care of his parents, or to notify a detainee’s parents upon his release. Article 817 states in pertinent part:

A. As soon as practicable after a child is received by a juvenile detention center or shelter care facility, the court or a probation officer employed and authorized by the court, upon determining it to be appropriate, shall release the child to the care of his parents or other relatives upon their written promise to bring him to court as such times as may be filed by the court. The court may also impose reasonable restrictions upon the child’s travel, place of abode, association with other people, or employment during his period of release.
B. If the court finds that these conditions are insufficient to assure the presence of the child at later proceedings, the court may require the posting of bail in accordance with Chapter 6 of this Title.

Under the plain language, Article 817 is a bail provision. Louisiana Code of Criminal Procedure article 311 provides, “Bail is the security given by a person to assure his | ^appearance before the proper court whenever required.” Louisiana Code of Criminal Procedure article 326 further provides in pertinent part:

[T]he condition of the bail undertaking in district, juvenile, parish, and city courts shall be that the defendant will appear at all stages of the proceedings to answer the charge before the court in which he will be prosecuted, will submit himself to the orders and process of the court, and will not leave the state without written permission of the court.

A reading of these two provisions establishes that bail provisions apply to courts and probation officers in a pending criminal action.

Because Article 817 is a bail provision, it is inapplicable to the case sub judice. Any duty imposed on the sheriff in relation to Frank under Article 817 is necessarily triggered by the release of a juvenile pursuant to bail. To hold otherwise would indicate that the sheriff had a duty to maintain jurisdiction and authority over an accused juvenile or criminal in absence of pending criminal charges or other court proceeding. In the instant case, the record clearly establishes that the District Attorney dismissed all charges pertaining to the second degree battery. Consequently, La. Ch.Code art. 817 is inapplicable because Sheriff Foti does not owe a duty pertaining to a bail provision when the charges against the accused are dropped.

We therefore hold that Sheriff Foti has a statutory duty under Article 822(C) to transfer Frank, a minor held in an adult detention center, to an appropriate juvenile correction facility. However, any duty owed under the Article 817 bail provision was not triggered in this case because the District Attorney dismissed the charges.

SCOPE OF DUTY

The next issue that this court must resolve is whether Sheriff Foti’s duty to transfer a minor to an appropriate juvenile detention center includes within its scope of | protection the risk that juvenile detainees will be killed by the criminal act of a third party almost twelve hours after release.

The essence of a scope of duty inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the statute. Dixie Drive It Yourself System New Orleans, Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298, 304 (1962). Where the rule of law upon which a plaintiff relies for imposing a duty is based on a statute, the court attempts to interpret legislative intent as to the risk contemplated by the legal duty, which is often a resort to the court’s own judgment of the scope of protection intended by the legislature. Hill v. Lundin & Assoc., 260 La. 542, 256 So.2d 620, 622 (1972). Since the law never gives absolute protection to any interest, recovery will be allowed only if a rule of law on which plaintiff relied includes within its limits protection against the particular risk that plaintiffs interests encountered. Dixie Drive It Yourself, 137 So.2d at 305 (quoting McDonald, Jesse, Proximate Cause in Louisiana, 16 La. L.Rev. 391).

A risk may be found not within the scope of a duty where the circumstances of that injury to the plaintiff could not reasonably be foreseen or anticipated, because there was no ease of association between the risk of that injury and the legal duty. Hill, 256 So.2d at 622. As this court stated in Hill v. Lundin,

All rules of conduct, irrespective of whether they are the product of a legislature or part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape, (quoting Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956)). Id. at 622.

|7The facts in this case are not in dispute. As a result, the court is called upon to resolve only the policy inquiry whether, given the undisputed facts, Sheriff Foti’s duty to Frank included protection against Frank’s death almost twelve hours after his release from OPCSO. To establish whether Sheriff Foti’s duty to transfer a minor held in an adult correctional facility to an appropriate juvenile detention facility encompassed the risk that such juvenile would be killed almost twelve hours after his release, we must look to the purpose of the statutory duties imposed.

The purpose of La. Ch.Code art. 822(C) is to provide a system of rehabilitation rather than retribution for the juvenile detainee population. Article V, § 19 of the Louisiana Constitution reads in pertinent part as follows: “The determination of guilt or innocence, the detention and custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be pursuant to special juvenile procedures which shall be provided by law.” This court has recognized that the purpose of separate procedures for adults and juveniles is to promote “non-criminal” treatment of juveniles. In re C.B., et al., 1997-2783 (La.3/4/98), 708 So.2d 391, 396. As this court stated,

The juvenile justice system, dating back to the early 1900’s, was founded as a way to nurture and rehabilitate youthful offenders. The criminal behavior of juveniles was seen as a “symptom” of a breakdown in parental control which required state intervention to save them from a life of criminal behavior, and thus, retributive punishment was deemed inappropriate. The “hallmark” of the juvenile system “was its disposition, individually tailored to address the needs and abilities of the juvenile in question.” Indeed, our own state’s system was founded upon this premise as is reflected in the stated purpose of our Children’s Code, “[In] those instances when [the child] is removed from the control of his parents, the court shall secure for him care as nearly as possible equivalent to that which the parents should have given him.” (Citations omitted).

Id. at 395-396. In accord with In re C.B., Sheriff Foti’s duty not to hold Frank in an adult facility is based on the premise that juveniles are entitled to different internal ^procedures while incarcerated because the focus in a juvenile facility is rehabilitation and not retribution. As defendant argues, this provision and the policies underlying it do not deal with the release of a juvenile detainee, but with the incarceration of juvenile detainees. In contrast with the purpose of Article 822(C), this action arises, not through harm occurring while Frank Lazard was incarcerated in an adult facility, but harm which occurred almost twelve hours after his release. A duty owed by the sheriff does not render him hable for “all consequences spiraling outward until the end of time.” Roberts, 605 So.2d at 1052. Based on this distinction, Article 822(C) does not encompass the risk that Frank Lazard III would be killed twelve hours after his release from an adult detention center.

Because we have found that the scope of Sheriff Foti’s duty to transfer a juvenile detainee held in an adult facility to an appropriate juvenile detention center does not extend to the risk that he may be killed almost twelve hours after his release from custody, this court need not reach the issues of cause-in-fact, breach, or damages.

CONCLUSION

We therefore hold that the sheriffs statutory duty not to hold a minor in an adult detention center does not encompass the risk that a released juvenile will be killed almost twelve hours after his release by the criminal act of a third party. Moreover, we further hold that the bail provision asserted by the plaintiff does not trigger a duty between the Sheriff Foti and a minor held in an adult facility where the District Attorney dismissed the charges.

DECREE

For the reasons assigned, the judgments of the trial court and the Court of Appeal, Fourth Circuit, are hereby reversed and the case is remanded to the trial court for judgment in accordance with the reasons stated herein.

JOHNSON, J., dissents and assigns reasons.

WEIMER, J., concurs and assigns reasons.

| JOHNSON, J.

dissents, assigning reasons:

In my view, the lower courts did not err in denying the defendants’ motion for summary judgment. LSA-C.C.P. art. 966(C) provides that a motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. Since the grant of summary judgment denies the litigants the opportunity to present their evidence to the trier of fact, the motion should only be granted when the evidence presented establishes that there is no genuine issue of material fact in dispute. Knowles v. McCright’s Pharmacy, Inc., 34-559 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, 104.

In the instant case, this Court has moved beyond determining whether there is a genuine issue of material fact and therefore defendant is entitled to judgment as a matter of law, and is instead weighing the evidence and making credibility determinations in order to ascertain whether Sheriff Foti is liable for the death of Frank Lazard. This is an inappropriate exercise of the Court’s discretion, as “the weighing of conflicting evidence has no place in summary judgment procedure.” Knowles, 785 So.2d at 104. Further, when deciding a motion for summary judgment, “the trial court cannot make credibility determinations” nor “determine | ?or even inquire into the merits of the issues raised.” Id. Applying summary judgment in this manner amounts to an abuse of procedure, as it allows a reviewing court to make liability determinations without hearing the evidence in its entirety.

DISCUSSION

In the instant case, the defendants argue that they had no duty under any statute or jurisprudence that required them to inform the parents of the exact date and time of Frank’s release. However, based upon the evidence presented, it is clear that Sheriff Foti did have a duty, outlined under LSA-Ch.C. art. 822(C) to transfer Frank, a minor child held in an adult correctional facility, to a proper juvenile detention facility. Frank was arrested on May 23, 1996 on the charge of second degree battery. Since the young man in question was a minor, Sheriff Foti had a duty under LSA-Ch.C. art. 814 to: (1) release him to his parents with their assurances that he would return for any subsequent proceedings; (2) escort him to the appropriate juvenile care facility; (3) notify his parents that he had been taken into custody; (4) submit an affidavit to the juvenile court outlining the probable cause present at the time of arrest; (5) and submit a report to the district attorney containing the identity of the minor, the details surrounding the events that warranted the arrest, and whether the child was released or placed in an appropriate juvenile facility. Since Frank was neither released to his parents nor escorted to |3the appropriate juvenile care facility, the defendants had a duty to both notify the parents that Frank had been taken into custody and submit an affidavit to the juvenile court outlining the probable cause present at the time of arrest. Article 814(d) states:

“Within forty-eight hours after the child has been taken into custody .... the court shall review the affidavit and if it determines that probable cause exists, the child shall be held for a continued custody hearing pursuant to Article 819. If the court determines that probable cause does not exist, the child shall be released from custody (emphasis added).”

Thus, once the arresting officer’s affidavit was submitted to a judge in the juvenile justice system, the Louisiana Children’s Code outlines procedures to ensure' that a minor is either released or placed in an appropriate juvenile facility. |4Very specific time constraints exist in the juvenile system to ensure the expeditious handling of juvenile defendants. Thus, LSA-Ch.C. art. 819 outlines:

“If a child is not released to the care of his parents, a hearing shall be held by the court within three days after the child’s entry into the juvenile detention center or shelter care facility. If the hearing is not held, the child shall be released unless the hearing is continued at the request of the child (emphasis added).”

In addition, LSA-Ch.C. art. 817 states:

“As soon as practicable after a child is received by a juvenile detention center or shelter care facility, the court or a probation officer employed and authorized by the court, upon determining it to be appropriate, shall release the child to the care of his parents or other relatives upon their written promise to bring him to court at such times as may be fixed by the court (emphasis added).”

Finally, LSA-Ch.C. art. 822(C) governs the placement of a child after the continued custody hearing. While there are several alternatives available for the placement of a youthful offender, it is unequivocally clear that “No child subject to the jurisdiction of the juvenile court shall be held in an adult jail or lockup (emphasis added).” Thus, defendants had a duty to transfer Frank to the proper juvenile facility. Evidence was presented which demonstrates that Mrs. Lazard informed defendants on at least two to three occasions that Frank was a juvenile, and on one occasion, supplied the certified copy of his birth record as proof of his | ^minority. Rather than surrendering custody of Frank to the appropriate juvenile detention facility, Sheriff Foti instead chose to hold Frank in an adult prison for fourteen (14) days, until Frank was ultimately released onto the streets without his parents being notified. During this fourteen day period, defendants were repeatedly informed that Frank was underage, however, they failed to follow the procedures specifically outlined in the Louisiana Children’s Code for the detention of minors. This was a breach of duty, as recognized in the majority opinion.

Frank was killed by an unrelated third party twelve hours after he was released without his parents being notified. More than one factor may have been a cause in fact of Frank’s death. Where multiple causes are present, we use the “substantial factor” test to determine whether the defendant’s conduct played any part in bringing about the plaintiffs harm. Roberts v. Benoit, 605 So.2d 1032 (La.1991). If the defendant’s conduct was a “substantial factor,” the cause in fact element is established. Roberts, 605 So.2d. at 1042. Stated differently, the question becomes “did the defendant contribute to the plaintiffs harm or is the defendant a cause of the plaintiffs harm?” Id. Similarly, in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (La.1972), this Court held that to the extent the defendant’s actions had something to do with the plaintiffs injury, the causal relationship is met. Applying these principles to the instant case, the release of Frank Lazard from an adult prison without notifying his parents was a substantial factor in his subsequent death twelve hours later.

The most critical issue in the instant case turns on the scope of protection or “legal cause” issue, which addresses whether the plaintiffs injury was within the contemplation of the defendant’s duty. Under this element, there is no “rule” for determining the scope of duty. Roberts, 605 So.2d at 1044. The scope of duty is a 1 fiquestion of policy as to whether the particular risk falls within the scope of the defendant’s duty. Id. This element is designed “to protect some persons under some circumstances against some risks.” Id. The court must determine on a case by case basis the proper thrust of a rule in its policy aspects. Id. This Court stated in Roberts, when faced with determining scope of duty:

“the scope of protection inquiry becomes significant in ‘fact-sensitive’ cases in which a limitation of the ‘but for’ consequences of the defendant’s substandard conduct is warranted. These cases require logic, reasoning and policy decisions be employed to determine whether liability should be imposed under the particular factual circumstances presented.” Id.

Such a factual determination is not appropriate for summary judgment proceedings.

Further, pursuant to LSA-C.C.P. art. 966, the plaintiffs are not required to prove, as if they were at trial, the allegedly missing elements of their claims. They are only required to present sufficient evidence to show that there is a genuine issue of material fact to warrant a reasonable juror to find the existence of the plaintiffs cause of action. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999).

After a careful review of this matter, I conclude that the lower courts did not err in denying the defendant’s motion for summary judgment. I admit that the ease of association and causal connection between Sheriff Foti’s failure to transfer Frank to the proper juvenile facility and/or to his parents and his death by shooting over twelve hours later is, at best, attenuated. Nevertheless, under a strict duty/risk analysis, this Court should not conclude on summary judgment that the duty to transfer a juvenile offender to the appropriate juvenile facility or to at least notify his parents of his release does not encompass the risk that the release of an |7unsupervised minor could result in harm. While Sheriff Foti speculates that such harm would have occurred even if Frank had been released to his parents, such a question of fact is more appropriately determined by the judge or jury after a trial on the merits. Thus, I would affirm the lower court’s ruling denying the defendants’ motion for summary judgment.

hWEIMER, J.,

concurring.

I agree with the majority’s conclusion. As noted in Roberts v. Benoit, 605 So.2d 1032 (La.1991), when considering limitation of liability issues, whether phrased in terms of scope of duty or legal cause, it can be useful to consider whether “too much else has intervened-time, space, people, and bizarreness.” Roberts, 605 So.2d at 1058 (quoting David W. Robertson, Reason Versus Rule in Louisiana Tort Law: dialogues on Hill v. Lundin & Associates, Inc., 34 La.L.Rev. 1 (1973)). In this instance, the undisputed facts reveal that 12 hours had elapsed between Frank’s release and his demise (time); the slaying occurred some distance from both the parish prison and his residence (space); the conduct of Frank’s unknown assailant played a substantially more direct role in his demise (people); and the slaying was a completely random event (bizarreness).

Under these circumstances, liability should not be imposed upon the Sheriff, and the result reached by the majority is correct.

      . The City of New Orleans filed an Exception of No Cause of Action, which was granted by the trial court thereby dismissing without prejudice the plaintiffs' claims against the City and reserving the right to rejoin the City as a party defendant should discovery require it.

        . Discussion of plaintiff’s argument regarding the scope of the sheriff's duty under La. Ch. Code art. 817 is pretermitted because we find that the sheriff does not owe Frank a duty under bail provisions when the charges are dropped.

      . LSA-Ch.C. art. 814 states:
      A. A child may be taken, into custody without a court order or warrant by a peace officer or probation officer if the officer has probable cause to believe that the child has committed a delinquent act.
      B. If a child is taken into custody without a court order or warrant, the officer shall have the responsibility to either:
      (1) Counsel and release the child to the care of his parents upon their written promise to bring the child to court at such time as may be fixed by the court.
      (2) Promptly escort the child to the appropriate facility in accordance with Article 815.
      C. If the officer does not release the child to the care of his parents, the officer shall promptly notify the child's parents that he has been taken into custody.
      D. The officer shall immediately execute a written statement of facts, sworn to before an officer authorized by law to administer oaths, supporting the existence of probable cause to believe either that the child committed a delinquent act or that the child has violated the terms of his probation or otherwise has violated the terms of his release. This affidavit shall be submitted to the juvenile court. Within forty-eight hours after the child has been taken into custody, including legal holidays within the time computation, the court shall review the affidavit and if it determines that probable cause exists, the child shall be held for a continued custody hearing pursuant to Article 819. If the court determines that probable cause does not exist, the child shall be released from custody.
      E.The officer shall submit a report to the district attorney or an officer designated by the court to receive such reports. The report shall include:
      (1) The name, address, date of birth, sex, and race of the child.
      (2) The name and address of the parents, or spouse, if any, of the child.
      (3) A plain and concise statement of the facts and circumstances of the officer's taking the child into custody.

        (4) A plain and concise statement of facts and circumstances showing probable cause that the child committed a delinquent act.
      (5) A statement indicating whether the child was released, or escorted to a juvenile detention center, or placed in a shelter care facility.
      F. If the child is released pursuant to Paragraph B or D of this Article, the report shall be submitted by the officer within seven days from the child's release. If the child is not so released, the report shall be submitted within twenty-four hours of the child being taken into custody.


author: LPER CURIAM. |! JOHNSON, Justice,

text:
    In re Johnnie A. JONES, Jr.
    No. 2002-B-3131.
    Supreme Court of Louisiana.
    Oct. 21, 2003.

      Charles B. Plattsmier, G. Fred Ours, Baton Rouge, Counsel for Applicant.
    Johnnie A. Jones, Jr., Lon E. Roberson, Baton Rouge, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Johnnie A. Jones, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Carolyn Williams retained respondent to represent her in connection with a claim for damages resulting from a 1996 automobile accident. Respondent filed suit on behalf of Ms. Williams and her minor children against the driver of the other vehicle and his insurer, State Farm Mutual Automobile Insurance Company (“State Farm”). The parties conducted discovery for a period of several months after the suit was filed. In November and December 1998, respondent began to engage in settlement discussions with State Farm’s in-house counsel, Sonceree Smith Clark.

According to respondent, his client instructed him to settle the case “for whatever [he] could get.” Respondent represents that in December 1998, he advised Ms. Clark that he was authorized by his client to settle the case for $9,000. However, it is undisputed that at this point in time, Ms. Clark was not authorized to make a formal offer of settlement on behalf of State Farm.

On Friday, January 22, 1999, respondent received correspondence from Ms. Williams discharging him as her attorney. On the morning of the following Monday, | {.January 25, 1999, respondent telephoned Ms. Clark to discuss the Williams case. It is respondent’s contention that he told Ms. Clark during this conversation that he had been discharged by his client; however, Ms. Clark denies that respondent mentioned this fact, and she testified that respondent called her to ask if she had received any authority to settle the Williams case. Ms. Clark then telephoned John Ozier, the State Farm claims superintendent overseeing Ms. Williams’ case, who in turn authorized Ms. Clark to settle the case for the sum of $9,000. Ms. Clark telephoned respondent and extended the settlement offer to him. The ODC alleges that respondent again failed to advise Ms. Clark that he had been discharged by his client, and that he accepted State Farm’s settlement offer without the knowledge or consent of his client, Ms. Williams.

On the afternoon of Monday, January 25, 1999, Ms. Clark hand delivered Ms. Williams’ settlement check to respondent’s office. By letter dated the same day and apparently faxed to Ms. Clark’s office sometime after the check was delivered, respondent advised Ms. Clark that he had been discharged by his client and that she had refused to accept the $9,000 check.

Thereafter, State Farm filed a motion to enforce the settlement. At the hearing on the motion, respondent testified that the $9,000 settlement offer was made by State Farm in November or December 1998, and that he accepted the offer at that time. State Farm subsequently withdrew its motion upon learning that Ms. Williams had discharged respondent three days prior to the settlement, not after the settlement, as Ms. Clark had been led to believe.

1 .DISCIPLINARY PROCEEDINGS

Ms. Williams filed a complaint against respondent with the ODC. After an investigation, the ODC filed one count of formal charges against respondent, primarily alleging he violated Rule 1.16(a)(3) of the Louisiana Rules of Professional Conduct by failing to withdraw from the representation of a client upon being discharged.

Respondent answered the formal charges and denied any misconduct. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Recommendation

Considering the evidence presented at the hearing, the hearing committee made the following factual findings:

1. Ms. Williams retained respondent’s services to pursue a personal injury action.
2. Respondent filed suit on Ms. Williams’ behalf and engaged in discovery.
3. Respondent had several telephone conversations with Ms. Williams during the course of the litigation.
4. Until discharge, respondent was endowed with full discretion from Ms. Williams to settle her claim for as much as possible.
5. Until discharge, respondent was engaged in active settlement negotiations with representatives of State Farm.
6. Upon some date in December 1998, respondent advised State Farm’s in-house counsel, Ms. Clark, that he was authorized to settle Ms. Williams’ case for $9,000.
7. Respondent was discharged by Ms. Williams on January 22,1999.
8. Until January 25, 1999, Ms. Clark did not have authority to make or accept a specific offer of settlement in the case, but she did have authority to discuss settlement amounts with the respondent.
9. On January 25, 1999, Ms. Clark received authority from her superior to offer $9,000 to settle Ms. Williams’ claim, and she relayed that offer to respondent’s office.
|410. On January 25, 1999, respondent communicated with Ms. Clark that he had been discharged.

Based on these factual determinations, the hearing committee concluded that respondent did not violate the Rules of Professional Conduct as charged in the formal charges. In particular, the committee determined that nothing in the record suggests respondent assumed authority as counsel for Ms. Williams after he was discharged on January 22, 1999 or that he accepted a settlement on behalf of Ms. Williams after he was discharged. The committee also found Ms. Clark’s testimony did not establish that respondent actually attempted to settle the Williams case without informing Ms. Clark that he had been discharged. Based on this reasoning, the committee recommended the formal charges against respondent be dismissed.

The ODC filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

A majority of the disciplinary board found that the hearing committee’s factual findings are supported by the record, and agreed that the committee correctly applied the Rules of Professional Conduct. Accordingly, the board recommended the formal charges against respondent be dismissed. Two members of the board dissented.

The ODC sought review of the board’s ruling in this court. On January 2, 2003, the court ordered the parties to submit briefs addressing the issue of whether the record supports the disciplinary board’s report. After reviewing the briefs filed by both parties, the court ordered the matter docketed for oral argument.

| ^DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

The critical issue in this case is whether the settlement was confected before or after respondent was discharged by his client on January 22, 1999. Respondent asserts that the settlement took place in December 1998, prior to his discharge, when he communicated to Ms. Clark that his client had authorized him to settle the matter for $9,000. By contrast, the ODC maintains the settlement did not occur until January 25, 1999, after respondent’s discharge, when Ms. Clark received authority from her superior to offer $9,000 to settle the claim, and she relayed that offer to respondent’s office.

The hearing committee made a finding of fact that prior to January 25, 1999, Ms. Clark did not have authority to make or accept a specific offer of settlement in the case. This factual finding is supported by the undisputed testimony in the record from Ms. Clark as well as respondent. Accepting this factual finding, we conclude the settlement could not have been confected prior to January 25, 1999. Therefore, at the time respondent purported to accept the settlement on behalf of his client, he had already been discharged.

It is well settled that a client has an absolute right to discharge his or her lawyer at any time. Saucier v. Hayes, 373 So.2d 102 (La.1978) (on rehearing). Rule 1.16(a)(3) requires the lawyer to withdraw from further representation of the client upon being discharged. As we explained in Scott v. Kemper Insurance Co., 377 So.2d 66, 70 (La.1979), an attorney may not “force his continued representation [on] a client who wishes to discharge him....” Respondent breached this fundamental tenet when he accepted State Farm’s settlement offer on behalf of his client after he was discharged.

Having found professional misconduct, we conclude the hearing committee and disciplinary board erred in dismissing the charges against respondent. We now turn to a discussion of the appropriate sanction for respondent’s misconduct.

The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152; Louisiana State Bar Ass’n v. Levy, 400 So.2d 1355 (La.1981). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839; Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

As previously noted, respondent’s misconduct goes to the heart of the attorney-client relationship. “The relation of attorney and client is one of special confidence and trust and the dignity and integrity of the legal professional demand that the interests of the client be fully protected.” Saucier, 373 So.2d at 111 (Dennis, J., dissenting). By failing to respect his client’s absolute right to discharge him, respondent has harmed the integrity of the legal profession.

Based on our review of the record as well as respondent’s oral argument before this court, we find respondent was erroneous in his contention that the settlement was |7confected in December 1998, prior to his discharge. Nevertheless, we conclude he did not intentionally act in an effort to disadvantage his client. While respondent’s state of mind does not excuse his actions, it serves to mitigate the sanction to be imposed for his misconduct. In re: Sharp 01-1117 (La.12/7/01), 802 So.2d 588. Additionally, we observe that respondent’s actions caused no significant harm to his client, as the settlement was ultimately not enforced against her.

Under the facts of this case, we conclude the appropriate sanction for respondent’s misconduct is a three-month suspension from the practice of law. In light of the mitigating circumstances, we will defer this suspension in its entirety and place respondent on probation for a period of two years, with the provision that any misconduct during the probationary period may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Johnnie A. Jones, Jr., Louisiana Bar Roll number 1083, be suspended from the practice of law in Louisiana for a period of three months. It is further ordered this suspension shall be fully deferred, and respondent shall be placed on probation for a period of two years. Any misconduct during the probationary period may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

|! JOHNSON, Justice,

dissenting.

While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held that the manifest error standard is applicable to the committee’s factual findings. See In re: Dunn, 02-2165 (La.11/8/02), 831 So.2d 889; In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this case, following a formal hearing on the merits, the hearing committee made certain factual findings and ultimately recommended that the formal charges against Mr. Jones be dismissed. A majority of the disciplinary board agreed. Based on my review, I believe that the record supports the findings of fact made by the hearing committee, and in my opinion, the disciplinary board reached the correct result in dismissing the formal charges. Hence, I would affirm the board’s disposition.

      . Respondent also testified that State Farm issued a settlement check in late December 1998, though in an incorrect amount, and that the check issued on January 25, 1999 was simply a replacement check in the correct amount. There is no support for this contention in the record.