author: 1PATRICIA RIVET MURRAY, Judge. 1BYRNES, C.J.,

text:
    Burnetta FAURIA v. Caverly A. DWYER and State Farm Mutual Automobile Insurance Company. James Taylor, Alvin Armour and Ralph Gavin v. Keyana Marie Manchester and State Farm Mutual Automobile Insurance Company.
    Nos. 2002-CA-2320, 2002-CA-2418.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.

      Robert G. Harvey, Sr., Mark P. Glago, Harvey, Jacobson & Glago, APLC, New Orleans, LA, for Plaintiffs/Appellees.
    W. Patrick Klotz, Klotz & Early, New Orleans, LA, for Appellee (Louisiana Medical Management Coporation).
    David V. Batt, Phillip J. Rew, Lobman, Carnahan, Batt, Angelle & Nader, New Orleans, LA, for Defendants/Appellants.

      (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   1PATRICIA RIVET MURRAY, Judge.

This is a discovery dispute that arose out of two unrelated personal injury suits against the same insurance company, State Farm Mutual Automobile Insurance Company (“State Farm”). In both suits, State Farm noticed the depositions of the same two related non-parties — Metropolitan Health Group (“MHG”); and its management company, Louisiana Medical Management Corporation (“LMMC”) — pursuant to La. C.C.P. art. 1422, and issued accompanying subpoenas duces tecum. In both suits, LMMC and plaintiffs moved to quash the discovery requests and sought sanctions. The trial court granted the motions and imposed sanctions totaling $20,000 on State Farm and its attorney, David V. Batt. State Farm and Mr. Batt filed separate writ applications with this court in each case. This court reversed the sanctions award and remanded for the assessment of appropriate sanctions, if any. On remand, the trial court imposed sanctions totaling $16,000. These consolidated appeals followed. For the reasons that follow, we reverse the trial court’s award of sanctions.

J¡FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts in these consolidated cases are undisputed. State Farm, in its capacity as insurer for the respective tort-feasors, was named as a defendant in these two unrelated personal injury cases, Taylor v. Manchester, and Fauria v. Dwyer. Both cases arose out of motor vehicle accidents, which occurred in Taylor on October 20, 2000, and in Fauria on February 14, 2000. Both cases involved relatively minor personal injuries. In both cases, the plaintiff(s), on referral from their attorney, treated within days following the accidents with a physician employed by MHG, either Dr. Norman Ott or Dr. Sof-jan Lamid. The sole plaintiff in Fauria, Ms. Fauria, treated with Dr. Lamid. Two of the three plaintiffs in Taylor treated with MHG physicians; Mr. Taylor treated twice with Dr. Ott, and another plaintiff, Mr. Armour, treated four times with Dr. Lamid.

In preparation for trial, State Farm noticed the Article 1422 depositions of MHG and LMMC in both cases, and issued accompanying subpoenas duces tecum. According to State Farm, the purpose for these discovery requests was to obtain information to cross-examine the MHG physicians at trial regarding their bias. State Farm’s subpoenas, which were virtually identical, sought sixteen categories (plus some sub-parts) of documentation; to wit:

1. All records regarding the referral of plaintiff to MHG and the billing, collection, and treatment records regarding plaintiff;
|a2. The names and addresses of all owners, investors, financiers, stock holders, members, partners, shareholders, officers, executives, directors, or other persons with a financial or proprietary interest in MHG;
8.The means of financing clinic operations such as overhead, staffing, doctor’s salaries, supplies and other expenses, utilized by MHG;
4. The nature of the fee agreements between MHG and its patients or their attorneys, including the contingency fee agreement between MHG and/or LMMC and the plaintiff in this matter or his (or her) attorney;
5. The percentage of patients treated by MHG which are referred to the clinic by attorneys; the percentage of patients treated by MHG which are referred by the plaintiffs bar, the percentages of patients treated by MHG which are referred by plaintiffis) counsel in this matter, and/or the percentage of patients treated by MHG who are engaged in litigation or have made some type of personal injury claim with an insurance company in connection with their treatment;
6. With regard to referrals of patients to MHG, identification of persons or organizations who make or have made such referrals; identification and production of reports that are made reflecting such referrals or the economic value of such referrals to MHG; and the identification of all persons who have referred plaintiff in this matter to MHG;
7. Identification and production of any type of agreement or documentation regarding any letter of guarantee, contingency fee agreement, or other fee agreement between MHG and/or LMMC and plaintiffs counsel in this matter;
8. Identification and production of any written manuals dealing with medical protocols to be employed by MHG or its physicians;
9. Identification and production of protocols employed by MHG for the generation, transcription, and preparation of medical reports or bills;
10. Number of patients seen per day at MHG, the types of treatment given, the average time of treatment, and/or the average time of evaluation by a physician for patients treated at MHG;
11. Production of all documentation relating to the following: (a) the conception, creation and operation of MHG including but not limited to articles of incorporation, partnership agreement, operating agreement, stock certificates or other documentation reflecting the nature of MHG and/or the ownership or proprietary interest thereof; (b) the ownership or transfer of any proprietary interest in MHG; (e) the number of patients seen per day, types of treatment given, average time of treatment and/or evaluation by any MHG physician; (d) lien forms, letters of guarantee, or contingency fee agreements used by MHG; (e) lien forms, letters of guarantee, or | ¿contingency fee agreements between counsel for plaintiff in this matter and MHG or any of its employees, doctors, or chiropractors, and (f) all standard forms used in the preparation of patient medical reports and/or bills;
12.Identification and production of all procedures and protocols regarding: (a) the process by which the doctors’ and therapists’ notes, sign-in sheets, and other medical records of MHG patients are used by MHG to generate the patients’ medical bills and transcribe narrative medical reports; (b) the method by which MHG selects the appropriate CPT codes in order to describe the therapy or other services provided by MHG; (c) the name and address of all MHG employees responsible for the generation of patients’ medical bills, transcription of narrative medical reports, and selection of the appropriate CPT codes; (d) whether additional language was added to narrative medical reports transcribed by employees of MHG and, if so, the name and address of the persons responsible for the additional language, and the protocols used for the addition of language; and (e) whether additional billing entries were added to medical bills generated by MHG and, if so, the names and address of persons responsible for the additional entries, and the protocols used for the additional entries;
13. Identification and production of all procedures utilized to assure the accuracy of the transcription of medical reports and medical bills generated by MHG;
14. With regard to the physical therapy provided to MHG clients: (a) number and identity of all licensed physical therapists (PTs) or entity employing PTs, employed by MHG, having offices within the offices of MHG, renting space from MHG, or receiving referrals from MHG; (b) the supervision of all PTs and physical therapy support personnel, including, but not limited to, aides, technicians, assistants, students and permitees, including the identity and licensure of all supervising individuals; (c) produce all rental and/or revenue agreements between MHG and/or LMMC and any and all PTs, or entity employing PTs, providing physical therapy to clients of MHG; (d) the qualifications and licensure required by MHG or LMMC of any PTs or support personnel, or entity employing PTs and support personnel, which provide physical therapy to clients of MHG; and (e) the training provided by MHG and/or LMMC, or on the premises of MHG, to physical therapy aides, assistants, permitees, technicians, and students;
15. With regards to physical therapy provided to each respective plaintiff, produce all prescriptions, referrals, initial physical therapy evaluations, progress notes, reassessments, treatment records, and discharge summaries generated in conformity with Title 46:328 of the Louisiana Administrative Code;
1k16. Produce all documentation relating to the following: (a) the conception, creation, and operation of LMMC including articles of incorporation, partnership agreement, operating agreement, stock certificates or other documentation reflecting the nature of LMMC and/or the ownership or proprietary interest thereof; (b) the ownership or transfer of any proprietary interest in LMMC; (c) the number of patients seen per day, types of treatment given, average time of treatment, and/or evaluation by any LMMC physician; (d) all lien forms, letters of guarantee, or contingency fee agreements used by LMMC; (e) all hen forms, letter of guarantee, or contingency fee agreements between plaintiffs counsel and LMMC or any of its employees, doctors, or chiropractors; and (f) ah standard forms used in the preparation of patient medical reports and/or bills.

As noted, plaintiffs and LMMC responded by filing motions to quash the discovery requests and seeking sanctions. In its motions, LMMC conceded that the first item sought was discoverable and represented that State Farm had been provided ■with that information; to wit, all medical records regarding each of the respective plaintiffs. As to the other fifteen items, however, LMMC asserted that it was entitled to a protective order pursuant to La. C.C.P. art. 1426 because the information sought was either privileged commercial information under La. C.C.P. art. 1426 A(7), or irrelevant, and because the overall request was overly burdensome, oppressive, and harassing.

Given that both suits were pending before the same trial court and given that both sets of motions were scheduled for hearing on the same date, the trial court considered the motions together. Following a lengthy hearing, the trial court granted the motions and awarded a total of $20,000 in sanctions ($5,000 per attorney, per case in attorney’s fees) on State Farm and its attorney, David V. Batt. From that ruling, State Farm and Mr. Batt filed separate writ applications in each case.

On August 2, 2002, we exercised our emergency supervisory jurisdiction in the Taylor case due to the impending August 5, 2002 trial date. Insofar as the writ | ^application requested reversal of the trial court’s order quashing the discovery request, we denied the writ. However, we granted the writ insofar as it requested reversal of the trial court’s $20,000 sanction award. Reversing that award, we found it was an abuse of discretion, reasoning:

It is apparent that the trial court assessed the $20,000.00 sanction, inter alia, as a form of punishment for the relator’s actions in the case at bar as well as other cases in other trial courts where the relator or counsel sought the same or substantially similar information for LMMC and MHG. Article 1420 envisions the award of sanctions for things within the trial judge’s actual knowledge and based upon evidence received in his or her own courtroom. A trial judge may not award sanctions for similar behavior by an attorney or party in other cases without bona fide evidence as to all of the facts and circumstances that were at issue therein. In the case at bar, although argument was made that the relator had done the same thing in other cases, no formal evidence was presented as to what the precise issues were in those cases. It is possible that the information sought in those other cases, based upon the pleadings and other factors, may have been relevant and necessary.

We remanded in Taylor to the trial court with instructions that it “assess an appropriate sanction to be imposed, if any, based upon the evidence in the record as it presently exists.” Moreover, we limited the scope of the potential sanction award to “the actual time incurred by attorneys for and actual necessary expenses of LMMC’s and MHG’s during the period of 12 June 2002 (the date the notice of deposition and subpoena were issued) through 12 July 2002 (the date the motion to quash was heard and disposed of by the trial court) that resulted in the successful quashing of the depositions and subpoenas.”

On August 22, 2002, we denied in part and granted in part the writ application in the Fauna case. In so doing, we adopted our reasoning in the Taylor |7case. As in Taylor, we remanded for an assessment of the appropriate sanction. Following the instructions we enunciated in Taylor, and adopted in Fauria, the trial court on remand conducted a hearing and awarded $16,000 in sanctions ($4,000 per attorney, per case in attorney’s fees).

DISCUSSION

The manifest error or clearly wrong standard applies to our review of the trial court’s sanctions award. See Murphy v. Boeing Petroleum Services, Inc., 600 So.2d 823, 827 (La.App. 3 Cir.1992); see also Hester v. Hester, 97-1326, p. 8 (La.App. 4 Cir. 2/11/98), 708 So.2d 462, 466. The narrow issue presented is whether sanctions, if any, were appropriately granted pursuant to Article 1420.

Adopted in 1988, Article 1420 is intended to provide an additional remedy for a party subjected to frivolous discovery. Article 1420 sanctions may be awarded if the court determines that “the discovery is interposed for an improper purpose, such as harassment, or is ‘unduly burdensome.’ ” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 9.13 (1999). Stated otherwise, such sanction “may be imposed upon an attorney or a party if the court determines that the discovery was improper or that the proponent’s motive or judgment in seeking the discovery was bad.” Id.

Before Article 1420 was adopted, the only remedy available for frivolous discovery was a protective order pursuant to La. C.C.P. art. 1426. Article 1426 provides that “for good cause shown” a trial court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” and expressly enumerates as one of the orders a trial court may make “[t]hat the discovery not be had ... [or] ... [t]hat certain matters not be inquired into, or that the scope of discovery be limited to | «certain matters.” La. C.C.P. art. 1426(1), (4); see also La. C.C.P. art. 1354 (providing that a trial court may in its discretion “vacate or modify the subpoena if it is unreasonable or oppressive”). Article 1426 has been construed as granting the trial court broad discretion to regulate specific discovery requests. Maraist & Lemmon, supra, at § 9.1. Notably, this is the precise relief LMMC sought in its motions to quash that it filed in this case; to wit, it sought a protective order as to items two through sixteen.

Article 1420 B(2) and (3), which are similar to Article 1426, provide that a party is subject to sanctions if the discovery is interposed for an improper purpose, such as to harass or to cause needless increase in the cost of litigation; or [is] “unreasonable, unduly burdensome, or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.” La. C.C.P. art. 1420B. In finding State Farm and Mr. Batt violated Article 1420 B(2) and (3), this court in Taylor reasoned:

In the absence of any allegation in a pleading in which the liability of LMMC or MHG for damages might be assessed, made directly, or upon information and belief, we find that the late filings of the discovery requests [we noted that on June 12, 2002, with a discovery cutoff date of June 13, 2002, State Farm served the Article 1422 notice of deposition and accompanying subpoena duces tecum], although technically timely, in a suit in which the amounts of money sought by the plaintiffs from the relator and their insured are not substantial, are violations of the plain language of La. C.C.P. art. 1420B (2) and (3).

| ^Insofar as our reasoning was premised on the belated nature of State Farm’s discovery requests, it was misplaced for two reasons. First, as State Farm submits, that reasoning was totally inapposite to the Fauria case in which no discovery cutoff date had been set. Second, our reference in Taylor to June 12th (the day before the discovery cutoff date) as the date on which the subpoenas were served (and the sanction period commenced) was factually mistaken. The subpoenas actually were issued on May 28th, about two weeks earlier. Although the plaintiffs and LLMC argue that this court’s prior decision in Taylor should simply be read to mean that the sanction period commenced on that earlier date, there is a flip side to that argument; namely, we expressly relied on the belated nature of the discovery request, being filed on the day before the discovery cutoff, as a basis for finding the request constituted a violation of La. C.C.P. art. 1420 B.

Regardless, given the circumstances of these two cases, arising out of minor personal injury claims, we cannot say that the trial court was clearly wrong in finding that State Farm’s discovery requests were unduly burdensome under La. C.C.P. art. 1420 B(3). This finding, however, does not end our inquiry. A discovery request can be both unduly burdensome and yet not warrant sanctions. Indeed, this flexibility in regulating frivolous discovery is implicit in La. C.C.P. art. 1420 D and E. Although Article 1420 D authorizes sanctions when the court finds a certification has been made in violation of the provisions of Article 1420 B, Article 1420 E provides that “[a] sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.” La. |inC.C.P. art. 1420 E. To conduct such an Article 1420 E hearing was the reason for our remand in both of these cases.

At the Article 1420 E hearing held on remand on October 4, 2002, State Farm’s attorney, Mr. Batt, argued that although the trial court found the discovery requests inappropriate and unduly burdensome, the discovery requests were pursued for a legitimate purpose — to establish bias on the part of the MHG physicians — and in good faith given the prior jurisprudence. Over State Farm’s objection, the trial court allowed the plaintiffs and LLMC to offer invoices to establish the attorney’s fees and costs they incurred in pursuing these motions to quash. On that basis, the trial court again awarded sanctions, yet indicated there was some merit to Mr. Batt’s argument and thus lowered the sanctions award to $16,000.

On appeal, State Farm argues that the trial court abused its discretion in sanctioning it for pursuing routine discovery under Article 1422. Indeed, State Farm argues that its discovery request was justified by this court’s recent decision in Francois v. Norfolk Southern Corp., 2001-1954 (La.App. 4 Cir. 3/6/02), 812 So.2d 804, which upheld a broad discovery request on a nonparty physician to establish bias or collusion with the plaintiffs’ attorneys. Plaintiffs and LLMC counter that this court’s prior decision in Taylor and Fauria are dispositive on their | fright to recover sanctions and that the purpose for remand was solely to set the quantum of sanctions.

Like the trial court, we find merit to Mr. Batt’s argument that even assuming the discovery was unduly burdensome, it was pursued for a legitimate purpose and in good faith in light of the jurisprudence allowing similar discovery requests. We further find that the trial court was clearly wrong in imposing sanctions under Article 1420 in these cases under these circumstances. While we find that the trial court did not abuse its discretion in quashing the discovery sought as unduly burdensome, that finding does not automatically mandate an award of sanctions.

A failure to prevail is not a basis for awarding sanctions. See Curole v. Avondale Industries, Inc., 2001-1808, p. 5 (La.App. 4 Cir. 10/17/01), 798 So.2d 319, 322. “Only when the evidence is clear that there is no justification for the assertion of a legal right, should sanctions be considered.” Id. Article 1420 is a statutory provision authorizing sanctions and thus must be strictly construed. See Maxie v. McCormick, 95-1105, p. 6 (La.App. 1 Cir. 2/23/96), 669 So.2d 562, 566.

Given that sanctions are reserved for extreme cases, we construe Article 1420 as contemplating a sliding scale on which there are three points. First, there is a point at which the discovery request is appropriate and sanctions not warranted. Second, there is a point at which the discovery request is entirely inappropriate— frivolous — and sanctions are warranted. Finally, there is a middle position at which the discovery request is inappropriate, yet sanctions are not warranted. Applying that sliding scale standard to the instant cases, we conclude that these cases fall in the middle position.

Although we cannot say the trial court was clearly wrong in finding State Farm’s discovery requests overly burdensome, State Farm articulated a legitimate | ^purpose for pursuing the discovery. As we noted in Taylor, State Farm’s purpose for seeking the discovery was to establish bias “to impeach the testimony of the plaintiffs’ treating [MHG] physicians who are connected with respondents.” Indeed, this purpose is apparent from many of the sixteen discovery requests. It is well settled that if one of the MHG physicians testified at trial State Farm would be permitted to attack his credibility by showing bias. See Brown v. Bush, 98-0581 at p. 3 (La.App. 4 Cir. 4/22/98), 715 So.2d 464, 465 (citing La. C.E. art. 607). To prepare for such impeachment, State Farm should be permitted “to discover an expert’s bias by discovery or subpoena.” Id. (citing Rowe v. State Farm Mutual Automobile Ins. Co., 95-669 (La.App. 3 Cir. 3/6/96), 670 So.2d 718, 725). And, as State Farm stresses, in Francois, supra, we likewise recognized the need for allowing discovery to obtain the information necessary to develop a witness’ bias on cross-examination at trial.

Arguing to the contrary, LLMC submits that State Farm has already taken two depositions of LLMC and should not be permitted to take a third. State Farm counters that one of those prior depositions was taken a decade ago in October 1992. The deponent of that 1992 deposition was LLMC’s founder, Robert Harvey, Jr., and that deposition was taken before LLMC was even formed. The other LLMC deposition was taken more recently in July 2001 by another attorney in Mr. Batt’s office, but was taken on behalf of another insurance company, Allstate Insurance Company. Plaintiffs and LLMC offered no evidence to the contrary.

| ^Summarizing, the record in these cases does not support a finding that State Farm’s discovery requests were frivolous or lacking even the slightest justification. Although State Farm’s attempt to conduct formal discovery to obtain impeachment evidence regarding bias of MHG’s physicians was inappropriate under the particular facts of these two cases, its failure to prevail is not a grounds for sanctions. Nor did the plaintiffs and LLMC offer any evidence establishing that State Farm lacked good faith in seeking such impeachment evidence. Accordingly, we find the trial court was clearly wrong in imposing sanctions on State Farm and Mr. Batt under the unique facts of these consolidated cases.

DECREE

For the foregoing reasons, the judgments of the trial court awarding sanctions are reversed.

REVERSED.

BYRNES, C. J., dissents in part with reasons.

1BYRNES, C.J.,

Dissenting in Part with Reasons.

I agree with the majority that the trial court did not abuse its discretion in quashing the discovery sought as unduly burdensome; however, I respectfully dissent in part based on my conclusion that the trial court was not clearly wrong in awarding sanctions in addition to granting the Louisiana Medical Management Corporation (“LMMC”) and the plaintiffs’ motion to quash the discovery requests by State Farm Mutual Automobile Insurance Company (“State Farm”).

In Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125 (La.1983). the Louisiana Supreme Court provided the basic objectives of the Louisiana discovery process as follows: (1) to afford all parties a fair opportunity to obtain facts pertinent to the litigation; (2) to discover the true facts and compel disclosure of these facts wherever they may be found; (3) to assist litigants in preparing their cases for trial; (4) to narrow and clarify the basic issues between | ?the parties; and (5) to facilitate and expedite the legal process by encouraging settlement or abandonment of less than meritorious claims. The discovery statutes are to be liberally and broadly construed to achieve its intended objectives. Id.

Generally, the discovery articles, La. C.C.P. arts. 1422 1425, permit discovery regarding any matter not privileged, which is relevant to the subject matter of the action. A trial court has broad discretion in handling discovery matters. Bergeron v. Pan American Assur. Co., (La.App. 4 Cir. 4/7/99), 731 So.2d 1037; Connick v. Brechtel, 98-0543 (La.App. 4 Cir. 4/22/98), 713 So.2d 583, writ denied, 98-1404 (La.6/3/98), 720 So.2d 1202.

In the present consolidated cases, the majority states that State Farm maintained that it sought discovery to obtain information to cross-examine the Metropolitan Health Group (“MHG”) physicians at trial regarding their bias. State Farm’s requests covered a broad range in the present cases and were overly burdensome.

Sanctions

State Farm submits that when there is even the slightest justification for the assertion of a legal right, sanctions are not warranted, citing Curole v. Avondale Industries, 2001-1808 (La.App. 4 Cir. 10/17/01), 798 So.2d 319. The majority notes that failure of State Farm to prevail is not grounds for sanctions, and that there was no evidence establishing that State Farm was in bad faith in seeking impeachment evidence.

Statutes that authorize the imposition of penalties, or sanctions, are penal in nature and are to be strictly construed. Consolidated Distributors, Inc. v. United Group of Nat. Paper Distributors, Inc., 32,431 (La.App. 2 Cir. 10/27/99), 743 So.2d 862. Because La. C.C.P. art. 1420 authorizes the imposition of sanctions, it | -¡must be given a strict construction. Maxie, v. McCormick, 95-1105 (La.App. 1 Cir. 2/23/96), 669 So.2d 562. A trial court’s finding as to a sanctionable violation may be reversed if the record furnishes no evidence to support the finding. Id.

In the present consolidated cases, the majority refers to Francois v. Norfolk Southern Corp., 2001-1954 (La.App. 4 Cir. 3/6/02), 812 So.2d 804, which upheld a broad discovery request on a nonparty physician to establish bias or collusion with the plaintiffs’ attorneys. State Farm asserts that because the broad discovery request was upheld in Francois, State Farm’s discovery requests were not frivolous or lacking even the slightest justification in the present cases.

However, the present two consolidated cases differ from Francois. In Francois, the issue involved a class action where a subpoena duces tecum was served on the plaintiffs’ medical expert relative to the alleged release of chemical vapors from a tank car. This Court granted the motion to enforce the subpoena because there was evidence that the regular treating physician, Dr. Reyes, was also the owner of the medical clinic at which the plaintiffs were being treated. This Court stated:

... Norfolk Southern quotes testimony from representatives of the proposed plaintiffs’ class indicating that Dr. Reyes and their attorney essentially set up a “clinic” for the sole purpose of diagnosing plaintiffs with conditions arising from an allegedly minor release of chemical vapors from an empty tank car. The testimony reveals that Norfolk Southern’s concerns about Dr. Reyes’ objectivity and lack of bias are justified. Id., 812 So.2d at 806.

In the present consolidated cases, LMMC has been in business for over 20 years and was not formed for the specific purpose of treating the plaintiffs involved in a class action suit. In Francois, supra, the class action involved a large group of l/plaintiffs so that the discovery would be more reasonable with respect to the extensive litigation. The present claims do not involve extensive litigation.

In WSF, Inc. v. Carter, 35,581 (La.App. 2 Cir. 12/28/01), 803 So.2d 445, 449-450, the Second Circuit stated:

The petition filed by the Carters sought $1,000,000 in damages for Hud-dleston’s alleged fraudulent alteration of the deed. The Carters subsequently filed various discovery documents seeking all financial information of Huddle-ston, which the trial court likened to the information disclosed in a judgment debtor rule. We agree with the trial court and Huddleston that this request for financial information sought material which was not relevant to the subject matter of the pending action, nor was the information sought reasonably calculated to lead to the discovery of admissible evidence. See La. C.C.P. art. 1422. The Carters argue that this information was necessary in order for them to justify filing a suit of this magnitude. Their position, however, was admitted by Mrs. Carter to be based on the faulty belief that they must determine the worth and assets (or ability to pay a judgment) of the defendant to justify to the trial court the amount of damages sought in their petition. The trial court found the Carters’ repeated requests for the financial information to be harassing to Huddle-ston and imposed sanctions against the Carters. While we have found no similar cases in the jurisprudence, on this record, we find no error in the trial court’s judgment. [Emphasis added.]

The Second Circuit affirmed the trial court’s award of attorney’s fees as sanctions.

In the present case, the parties presented evidence showing that State Farm continued to pursue its requests for extensive discovery although State Farm did not raise a counterclaim based on fraud. State Farm did not take the depositions of the LMMC doctors treating the plaintiffs. Plaintiffs’ counsel pointed out that he did not refer the plaintiffs to LMMC; when another named attorney previously represented the defendants in the Taylor case, that attorney referred two of the three plaintiffs to LMMC. The previous attorney had no connection to LMMC.

fiThe parties referred to judgments in different cases in the district court concerning State Farm’s requests for extensive discovery that were comparable to the requests made in the present case. The trial court judgments limited the requests. State Farm asserts that in those cases the trial court did not award sanctions.

However, considering that the previous trial court judgments in similar cases limited discovery to medical records and other documents pertaining to those plaintiffs, State Farm previously had been informed and was well aware that its discovery requests were overly burdensome. State Farm had been provided with all the medical documents concerning the plaintiffs in the Taylor and Fauria cases. Although sanctions were not awarded in prior cases, State Farm continued to pursue the same tactic in filing similar extensive discovery requests in the present consolidated cases.

In addition, State Farm did not request discovery in the Taylor case until right before the discovery cutoff date even though the information would take a great deal of time for the opposing parties to compile and complete. Further, State Farm did not file a timely opposition to the motions to quash brought by LMMC and the plaintiffs. The trial court allowed State Farm to argue at the July 12, 2002 hearing, but noted that it would award attorney’s fees in the event that State Farm did not prevail in order to compensate for permitting State Farm to contest the motions to quash. After the trial court’s original judgment of July 12, 2002, State Farm did not file its writ application in this Court until late in the afternoon on July 31, 2002. A response was due the next day by 4:00 p.m. on August 1, 2002. The writ was given emergency consideration because the trial was set in Taylor for August 5, 2002.

Un the present two consolidated cases, this Court affirmed the trial court’s judgments that granted the motions to quash filed by the plaintiffs and LMMC. In granting the writ applications in part, this Court remanded the Taylor and Fauria cases for a hearing to provide evidence to determine whether sanctions are warranted. If this Court had found that no sanctions were warranted, there would be no need to remand these two cases.

Another factor supporting sanctions is that the personal injuries sustained in these cases concerned soft tissue injuries. The medical testing would not provide a definitive determination as to the extent of the injuries. The physicians, chiropractors, or other medical personnel had to rely on the patients’ history of their injuries. The diagnoses rested on the plaintiffs’ complaints.

The plaintiffs were not treated on a long-term basis, and the amount of damages involved was limited. The plaintiffs’ attorney claims that the opposing party filed discovery, prolonging the litigation and necessitating opposition that is unreasonable. State Farm’s discovery requests are tactically designed to make pursuit of a claim for soft tissue injuries “more trouble than it is worth.” State Farm’s requests were even more burdensome considering the type of the claims involved.

The majority suggests that using a sliding scale, this case is in a middle position at which the discovery request is inappropriate, yet sanctions are not warranted. However, considering the factors discussed above, it has reached the point where the trial court was not clearly wrong in awarding sanctions in the form of attorney’s fees. State Farm was aware that the trial courts had denied or limited its discovery requests to documents concerning various plaintiffs in the past. Considering that State Farm continued to pursue the burdensome discovery 17requests, the trial court did not abuse its discretion in finding that sanctions now are warranted where State Farm’s requests are repetitive. The plaintiffs and LMMC spent additional time in the present two cases to contest State Farm’s discovery requests. The trial court was not clearly wrong in awarding attorney’s fees for the additional work involved.

Attorney’s Fees

State Farm asserts that the opposing attorneys did not produce any evidence warranting attorney’s fees at the July 12, 2002 trial court hearing.

State Farm’s Claim that Attorney’s Fees Should Be Limited to Taylor

In its January 10, 2008 brief, State Farm states that:

... Implicit in this ruling [of this Court] was the finding that the sanctions in the Taylor matter were due, in part, because the return on the subpoenas and notices were due one day before the close of discovery, as set by the trial court’s scheduling order. This Circuit found the discovery requested to be “late” though “technically timely.” It follows that where, as in the Fauria matter, there was no discovery cutoff, the discovery should not be sanctioned as untimely. [Emphasis supplied in text.]

In its ruling of August 2, 2002, in the Taylor case, this Court stated:

[W]e find the trial court did not abuse its discretion in quashing the depositions and subpoenas and awarding sanctions that are permitted under La. C.C.P. art. 1420 D. We therefore deny relator’s application for supervisory writ on that issue. [Emphasis added.]

In the Fauria case, this Court ruled on the same date:

For the reasons assigned by this Court in case No.2002-C-1516, Taylor v. Manchester, we find no abuse of the trial court’s discretion in quashing the depositions and subpoenas and awarding sanctions permitted by La.Code Civ. Proc. art. 1420D. [Emphasis added.]
Additionally, for reasons cited in case No.2002-C-1516, we remand this matter to the trial court for an assessment of the appropriate sanction to be imposed.

IsThis court found that the trial court abused the amount of the awards for sanctions in both cases but remanded for consideration of the amount of sanctions, if any, that can be imposed based on the evidence. Whether or not there was no discovery cutoff date set in Fauria, there were additional reasons as previously discussed above, to find that attorney’s fees were warranted in both cases.

State Farm’s Claim that Attorney’s Fees Should Be Limited to LMMC

State Farm also argues that sanctions, if any, should only be awarded to the attorney for LMMC and not to the plaintiffs’ attorney. State Farm avers that plaintiffs’ counsel was not obligated to oppose discovery sought from LMMC and MHG, and he almost certainly represented his clients on a contingency basis so that they had no additional expense.

However, counsel for the plaintiffs as well as counsel for LMMC both filed and argued the motions to quash. The plaintiffs’ attorney had to represent his clients in the proceedings to ensure that the plaintiffs’ interests were protected. The trial court was not clearly wrong and did not abuse its discretion in awarding attorney’s fees to both LMMC and the plaintiffs’ counsel.

State Farm’s Claim of Double Billing

State Farm avers that the issues in Taylor and Fauria were combined at one hearing so that State Farm should not be billed for both cases. State Farm contends that the invoices represented double billing. However, LMMC points out that the time spent on the cases was split between the two invoices, and the invoices represents split billing. LMMC explains that the time spent preparing for and arguing in court the motion to quash was approximately four hours and each client |3was billed for two hours as shown in the invoices. The claim of double billing is unsubstantiated.

State Farm’s Claim as to Time Period

State Farm further maintains that in its initial ruling on the writ application, this Court noted that any award should be limited to work done to successfully quash the depositions and subpoenas, which occurred between June 12, 2002 and July 12, 2002.

Just as statutes are subject to interpretation, the same is true about the rulings of courts. In Broussard v. F.A. Richard & Associates, Inc., 98-1167 (3//17/99), 732 So.2d 578, appeal after remand, 99-10 (La. 3 Cir. 5/5/99), 740 So.2d 156, writ denied, 99-1048 (La.6/4/99), 744 So.2d 625, the Third Circuit held that courts should avoid a construction of a statute which would lead to absurd results; the statute must be interpreted in such a manner as to render its meaning rational, sensible, and logical. Similarly, the ruling of a court should be interpreted to avoid a construction that would lead to absurd results. The ruling should be interpreted in such a manner as to render its meaning rational, reasonable, and logical.

In the present case, in its August 2, 2002 ruling, this Court stated that the awards for attorney’s fees should be for:

the period of 12 June 2002 (the date the notice of deposition and subpoena were issued) through 12 July 2002 (the date the motion to quash was heard and disposed of by the trial court) that resulted in the successful quashing of the depositions and subpoenas.

The date of June 12, 2002 is inconsistent with the date of the notice that the deposition and subpoena were issued. Because the dates are not the same, the date must be corrected for this Court’s ruling to be consistent. The plaintiffs and LMMC maintain that the date of the notice of deposition and subpoena were issued |inis actually May 28, 2002. The time period to be considered should be May 28, 2002 through the date of the hearing on July 12, 2002.

Regardless of the difference in the time period, this Court limited the sanction to attorney’s fees based on work performed with respect to the issue of the production of State Farm’s discovery requests, ending with, but including, the trial court hearing on the motions to quash on July 12, 2002.

State Farm’s Claim Rejecting Consideration of Invoices

State Farm claims that the invoices for attorney’s fees should not be considered because the invoices were not before the trial court in the July 12, 2002 hearing.

In In re Succession of Boyter, 99-0761 (La.1/7/00), 756 So.2d 1122, the Louisiana Supreme Court concluded that courts should give effect to language in a statute so that the language is interpreted in a manner which is consistent with logic and the presumed fair purpose and intention of the legislature. As discussed previously, court rulings should be interpreted in a manner that is consistent with logic and presumed to have a fair purpose to achieve the intention of the courts.

This Court’s ruling in Taylor stated in part that:

We remand this matter to the trial court to assess an appropriate sanction to be imposed, if any, based upon the evidence in the record as it presently exists and only for the actual time incurred by attorneys for and actual necessary expenses ....

State Farm asserts that this Court limited the evidence to that which presently existed at the time of this Court’s ruling. If this were the intent of this Court, there would be no need to remand this case for evidence concerning the amount of attorney’s fees because there were no invoices before this Court at that time. To reach a reasonable result, the intent of this Court must be interpreted to Inmean that this Court remanded the cases for consideration of evidence limited to represent the amount of work performed as it presently existed at the time of this Court’s ruling. This Court instructed the trial court to assess sanctions based “only for the actual time incurred by attorneys.” If the invoices representing the work involved during that time period could not be considered, a remand would be meaningless.

The trial court considered the invoices presented by the plaintiffs’ attorney and LMMC’s counsel. Based on the evidence, the trial court did not abuse its discretion in determining the amount of the award for attorney’s fees to be $4,000 for both attorneys in both cases for a total of $16,000.

Accordingly, I would not only affirm the trial court’s ruling that granted the motions to quash, but would affirm the trial court’s award of attorney’s fees assessed against State Farm. Further, I would assess the costs of the appeal to State Farm.

      . MHG did not file any motion and is not a party to these appeals.

      . On State Farm’s motion, we consolidated these appeals.

      . More particularly, the record reflects that in Taylor all three plaintiffs treated for personal injuries shortly after the accident. First, Mr. Taylor treated twice with Dr. Ott (on October 26th and November 15th, 2000) for a "thora-columbar strain with spasm.” Dr. Ott's final report dated March 2, 2001, indicates that Mr. Taylor failed to return for a scheduled follow-up appointment. MHG’s billing statement reflects that Mr. Taylor underwent physical therapy on several occasions in October and November 2000 and that his total MHG bill was $571.50. Second, Alvin Armour treated with Dr. Lamid on October 31, 2000 for a cervical strain, lumbar strain, left wrist strain, and right shoulder strain. Dr. Lamid also saw Mr. Armour for reevaluations on four subsequent occasions (November 9th and December 11th, 2000, and January 18th and March 22nd, 2001). At the final visit, Dr. Lamid noted Mr. Armour’s symptoms had resolved, and discharged him from treatment. MHG’s billing statement reflects that Mr. Armour underwent physical therapy on multiple occasions between October 2000 and February 2001. Mr. Armour’s total MHG bill was $1,903. Third, Ralph Gavin treated at American Chiropractic Clinic, not at MHG, and his medical bills totaled $2,915. The record also reflects that a bench trial was held in Taylor in August 2002. Following the trial, the trial court rendered judgment in favor of the three plaintiffs for over $50,000 in damages, and that judgment has been satis-fled. The Fauna case has not yet been tried.

      . Although plaintiffs argue that this court did not mean to restrict the award of sanctions to the non-party (LMMC), that we mistakenly noted the date of the subpoena as June 12th, and that we did not mean to preclude them from introducing invoices to establish their attorney’s fees and costs on remand, we find it unnecessary to reach those issues as we reverse the sanctions award on other grounds.

      . La. C.C.P. art. 1420 B provides:
      The signature of an attorney or party constitutes a certification by him that he has read the request, response, or objection and that the best of his knowledge, information, and belief formed after reasonable inquiry the request, response, or objection is: (1) consistent with all the rules of discovery and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary or needles increase in the cost of litigation; and (3) not unreasonable, unduly burdensome, or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

      . State Farm’s objection was based on this court’s instructions limiting the trial court on remand to the record as it then existed.

      . Although State Farm also argues that the sanctions were inappropriate because another associate in Mr. Batt’s firm actually signed the discovery requests, we decline to decide this case on that basis. Indeed, we note that while the Louisiana Legislature has not amended La. C.C.P. arts. 1420 or 863, the federal rule, Rule 11, has been amended to provide that courts may sanction "attorneys, law firms or parties," as opposed to simply the signer of documents. Fed.R.Civ.P. Rule 11(c).

      .Although in Taylor we found no abuse in discretion in the trial court's decision to quashing the discovery, we acknowledged that "we do not determine that relator [State Farm] is prohibited at the merits trial from appropriately developing bias of any witness within the ordinary rules set forth in the Louisiana Code of Evidence or jurisprudence.”

      . Although State Farm generated a laundry list of items it contends supports its suspicions of bias based on the operation of MHG and its management company, LMMC, we do not find it necessary to repeat that list.

      . Although the plaintiffs and LLMC refer to cases in which similar discovery requests have been quashed, in none of those cases were sanctions awarded. Moreover, this court in Taylor found the trial court’s reliance on such discovery attempts in other unrelated cases misplaced. We further note that State Farm refers to cases in which similar discovery requests have been permitted at least in part.

      . Plaintiffs and LLMC also complained that State Farm’s brief did not comply with this court’s uniform rules because it exceeded the page limits. However, we find that issue moot because State Farm, by motion, has filed a replacement brief with identical content in a smaller font that complies with this court’s rules.


source: Caselaw Access Project

author: 2CLARENCE E. McMANUS, JUDGE.

license: Public Domain

text:
    STATE of Louisiana v. Bobby C. TERRICK.
    No. 2003-KA-515.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Donald A. Rowan, Jr., Cameron M. Mary, Assistant District Attorneys, Gretna, LA, for State.
    Jane L. Beebe, Gretna, LA, for appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2CLARENCE E. McMANUS, JUDGE.

Defendant, Bobby C. Terrick, appeals his conviction and sentence for the second degree murder of Edward Sanchez. Defendant contends that the evidence presented by the state at trial was legally insufficient to support his conviction. Ter-rick also argues that the trial court committed reversible error in denying his motion to suppress the statement he gave the police and in denying his motion for a new trial. For the reasons stated herein, we affirm defendant’s conviction and sentence but remand for the trial court to advise defendant of the appropriate delay to apply for post conviction relief.

The record shows that the Jefferson Parish Grand Jury returned an indictment charging defendant with the manslaughter of Edward Sanchez in violation of LSA-R.S. 14:31. Also indicted as a codefendant on this homicide was Jeremy Ross, who was charged with second degree murder. Ross and defendant were tried separately. Following his indictment defendant appeared and pled not guilty to the manslaughter charge. He then filed a motion to quash the indictment, alleging that his indictment as an adult was improper because he was a juvenile at the time of the charged offense. Defendant also filed a motion to suppress his identification as a perpetrator of the homicide and to suppress his statement to the police during questioning following the homicide. The suppression motion alleged that the identification and defendant’s statement were obtained illegally. After separate hearings, the trial court denied both the motion to quash and the motion to suppress. The grand jury then re-indicted defendant and charged him with the |,.¡second degree murder of Edward Sanchez in violation of LSA-R.S. 14:30.1. Defendant was re-arraigned on the charge and pled not guilty. The case proceeded to trial before a 12-person jury, which found defendant guilty as charged. Defendant then moved for a new trial and for post verdict judgment of acquittal. The trial court denied defendant’s post trial motions and sentenced defendant to life imprisonment without benefit of parole, probation or suspension of sentence. Defendant timely appealed his conviction and sentence.

Three witnesses testified at 'trial, including the investigating officer, a fact witness, and the coroner. The investigating officer, Detective John Drury of the Jefferson Parish Sheriffs Office Homicide Division, testified that at approximately 5:00 a.m. on July 27, 2001, he received a report of a man shot in the head, located in the rear yard of 501 Wilker Neal Street in Kenner. Detective Drury responded to the call and found the victim, Edward Sanchez, still alive. The victim was taken to East Jefferson General Hospital where he subsequently died.

Dr. Susan Garcia of the Jefferson Parish Coroner’s Office performed an autopsy on the victim. She testified that the victim died from a single gunshot to the head. In addition to the fatal wound, the autopsy revealed other injuries to the victim, including a bruised and swollen face and knuckles, lacerations of the head and abrasions of the chest. Toxicology tests run on the victim’s blood and urine revealed the presence of cocaine and alcohol. A bullet jacket fragment was also recovered from the victim’s body.

Detective Drury investigated the crime scene and had photographs of the area taken. The investigation revealed a footprint near the location where the victim’s body was found and a blood trail running from the front of the residence to the rear. Testing disclosed that the blood matched the victim’s. While searching the area around the residence, officers recovered a torn and bloodstained shirt, a bullet jacket fragment, and a dollar bill.

|4The investigation led Detective Drury to interview Rosemary Charles as a possible witness to the events surrounding this homicide. Ms. Charles gave police a statement about her observations on the night of the murder and then, based on a photographic line-up, identified defendant and Jeremy Ross as the men she saw assaulting the victim on that night.

Rosemary Charles was also called as a witness at trial. She testified that, on the evening of July 26, 2001, she went to a club in Kenner where she drank several beers. After she left the club, she walked to the house of a friend who lived on Wilker Neal Street, just off of Bengal Street in Kenner. From there, Ms. Charles walked to her brother’s house, also located on Wilker Neal Street. According to Ms. Charles, it was approximately 3:00 or 4:00 a.m. on July 27, 2001 when Ms. Charles walked down Wilker Neal Street to her brother’s house. In the 500 block of Wilker Neal, she saw three men engaged in an argument. The men were standing near a corner on Wilker Neal Street. Ms. Charles recognized two of the men as defendant and Jeremy Ross. She knew defendant and Ross from the neighborhood. According to Ms. Charles, the third man appeared to be either a light-skinned African-American or a Hispanic male. Ms. Charles testified that she walked past the three men on her way to her brother’s house. She heard the third man, later identified as the victim, Edward Sanchez, say to defendant and Ross, “I’m 5-0, I got all now.” She heard one of the other two men say “5-0 my a — , I want my money.” According to Ms. Charles, a physical encounter ensued and Sanchez was trying to take something from defendant and Ross. Ms. Charles continued walking to her brother’s house, which was located four houses away from where the three men were located. As she approached her brother’s residence, Ms. Charles looked back over her shoulder and she saw defendant and Ross kicking and punching Sanchez as he lay on the ground.

|rMs. Charles entered her brother’s residence and told him what she had just seen. Ms. Charles’ brother cautioned her to stay inside his house. He also told her that he would walk her home to get some clothes so she could return and stay at his house while he went to work. Ms. Charles remained inside her brother’s house approximately one-half hour. Thereafter, she and her brother left and walked down Wilker Neal Street. As the pair walked through the area where she had previously witnessed the three men, Ms. Charles could hear someone moaning from the rear of a blue house located on a corner of Wilker Neal Street. She saw the victim lying in the backyard of the house, and she thought he had been beaten. She did not realize the victim had been shot because she had not heard any gunshots. Ms. Charles’ brother told her that this incident was none of her business, and the pair continued walking to Ms. Charles’ residence. Thereafter, escorted by her brother, Ms. Charles returned to her brother’s house where she remained until the next day.

Based on information Ms. Charles gave the police, along with the positive identification she provided during the photographic line-up, defendant and Jeremy Ross were arrested and booked for the murder of the victim. Ross declined to give police a statement, but defendant did give a statement to Detective Drury. In that statement, which was provided to the jury at trial, defendant admitted to punching the victim. He also admitted to chasing the victim to the rear of the house on Wilker Neal Street, along with Jeremy Ross. According to defendant’s statement, while the men were in the rear yard, Jeremy Ross shot the victim with a .857 revolver.

On appeal, defendant challenges the legal sufficiency of the evidence against him. He claims that the state failed to prove that he was a principal to murder because the state did not establish that he had the specific intent to kill the victim or inflict great bodily harm on the victim. He contends that he did not shoot the | victim nor did he know Jeremy Ross was going to shoot the victim. Additionally, defendant only admitted in his statement to being present during the shooting. The State responds that the evidence presented at trial was legally sufficient to support defendant’s conviction of second degree murder.

When, as in this case, issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the appellate court first determines the sufficiency of the evidence. State v. Marcantel, 00-1629, p. 12 (La.4/3/02), 815 So.2d 50, 55, citing State v. Hearold, 603 So.2d 731, 734 (La.1992).

In reviewing the sufficiency of the evidence presented against defendant at trial, this Court must decide whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Mitchell, 99-3342, p. 9 (La.10/17/00), 772 So.2d 78, 82. We are not called to assess credibility of the witnesses or reweigh the evidence. State v. Marcantel, 815 So.2d at 56. The jury makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. Thus, an appellate court may impinge upon the jury’s discretion “only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Tate, 01-1685, p. 9 (La.5/20/03), 851 So.2d 921, State v. Ruffin, 02-798, p. 10 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 630.

To convict defendant of second degree murder in this case, the state was required to prove that he had the specific intent to kill or to inflict great bodily harm on the victim. LSA-R.S. 14:30.1(A)(1). Specific intent is “that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent may be inferred from the circumstances of a transaction |7and from the actions of the accused. State v. Tate, supra; State v. Mitchell, supra. Additionally, specific intent to kill or inflict great bodily harm may be inferred from the extent of the victim’s injuries. State v. Daniels, 01-545, p. 12 (La.App. 5 Cir. 11/27/01), 803 So.2d 157, 162.

Additionally, LSA-R.S. 14:24 establishes that, “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime are principals.” And persons who assist in the commission of a crime are guilty as principals, although they do not directly commit the act constituting the offense. State v. Lynch, 512 So.2d 1214, 1216 (La.App. 5 Cir.1987).

Nevertheless, the Louisiana Supreme Court recognized in State v. Wright, 01-322, p. 17 (La.12/4/02), 834 So.2d 974, 983, that more than mere presence and flight from a crime scene are required to find a defendant guilty as a principal. An individual may be convicted only for those crimes for which he personally has the requisite intent, and it is not enough that his accomplice had the intent. The State must prove the defendant had the requisite intent. State v. Tate, 01-1658, p. 12 (La.5/20/03), 851 So.2d 921.

The state’s evidence against defendant at trial focused largely on the testimony of Rosemary Charles and on defendant’s own statement to the police. Ms. Charles testified that she observed defendant and Jeremy Ross, both known to her from the neighborhood, as they argued with the victim over what she assumed was a drug deal. She saw the pair engage in a physical confrontation with the victim as he tried to take something from defendant and Ross. She looked over her shoulder at the three men when she reached her brother’s house, only four doors away. Ms. Charles saw defendant and Ross brutally kicking and punching the victim as he lay on the ground. As she passed the scene a short time later with her | «brother, Ms. Charles heard moaning and saw the victim lying in the rear yard of the house where she had previously seen him. The autopsy findings, namely, that the victim also suffered injuries to his face, head, chest and hands, were consistent with the victim being violently kicked and punched, as described by Ms. Charles.

In his statement to police, defendant stated that the victim was engaged in a drug deal with Jeremy Ross, when the victim attempted to take the drugs without payment by telling defendant and Ross that he was a police officer. Defendant admitted that he initiated the attack on the victim by punching him. Thereafter, Ross joined in the attack on the victim. Defendant further admitted that he and Ross then chased the victim down and that he saw Ross produce a gun. Nonetheless, defendant continued to participate with Ross in chasing the victim. Defendant admitted in his statement that he was present and saw Ross shoot the victim with a .357 handgun. Following the shooting, defendant fled the scene.

The jury in this case could have reasonably inferred that defendant had the specific intent to inflict great bodily harm on the victim and was a willing participant in the offense which culminated in the victim’s murder. Defendant initiated the brutal attack on the victim. He continued kicking and punching the victim even after the victim fell to the ground. When the victim attempted to flee, defendant pursued him. And even after seeing Ross armed with a handgun, defendant assisted Ross by chasing after the victim. Defendant did nothing to prevent the murder, nor did he render assistance to the victim following the shooting. Rather, he took flight from the scene after the shooting. The photographs of the victim introduced at trial demonstrate the extent of the victim’s injuries and the brutality of the attack on him. Considering the trial testimony and evidence, the jury could have reasonably inferred that defendant specifically intended to inflict great bodily harm on the victim or even to kill the victim. We thus conclude that the evidence presented at trial was legally sufficient to support | ^defendant’s conviction of second degree murder and we reject defendant’s claim that the evidence was insufficient.

Defendant next contends that the trial court’s denial of the motion to suppress his statement to police constituted reversible error. He argues that the trial judge failed to consider the totality of the circumstances in finding that defendant gave the statement knowingly and voluntarily. The record discloses that the police arrested and questioned defendant believing that he was an adult, when, in reality, he was a juvenile. The birth certificate attached to the motion to quash filed in this case shows that defendant was 16-years-old at the time of his arrest. Nevertheless, all of the information possessed by the police at the time indicated that defendant was 17 years old when arrested. Defendant now claims that the trial court failed to consider his age and status as a juvenile in ruling on the suppression motion. The state responds that defendant’s age alone does not bar the admissibility of his statement because, considering the totality of the circumstances, defendant’s statement was knowing and voluntary.

Before introducing a defendant’s statement into evidence, the state must show that the statement did not result from fear, duress, intimidation, menace, threats, inducements or promises. LSA-R.S. 15:451; State v. Lucky, 96-1687, p. 26 (La.4/13/99), 755 So.2d 845, 855, cert. denied, 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000). Moreover, at the hearing on a motion to suppress a statement, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the statement. LSA-C.Cr.P. art. 701.

The constitutional privilege against self-incrimination and the right to counsel apply equally to juveniles and adults. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); State in the Interest of D.J., 01-2149, p. 10 (La.5/14/02), 817 So.2d 26, 30. Thus, if the accused is in custody at the time of the |instatement, he must also have first been advised of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The determination of whether a waiver of constitutional rights is knowing and voluntary is made on a case-by-case basis and such a determination rests upon the “totality of the circumstances.” Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, reh’g denied, 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979); State v. Fernandez, 96-2719, p. 7 (La.4/4/98), 712 So.2d 485, 487.

The defendant’s age is one factor for consideration in determining whether an accused’s statement or confession was knowing and voluntary. The Louisiana Supreme Court, in State v. Fernandez, 96-2719 at p. 7, 712 So.2d at 487 discussed age as one consideration in an evaluating the totality of the circumstances surrounding the rights waiver:

The confession of an accused of any age is valid only if it was given knowingly and voluntarily. The age of the accused, although an extremely important and extremely relevant factor in determining knowingness and voluntariness, is not absolutely determinative, and the rigid invalidation of an otherwise valid confession because the accused has not quite reached the age of seventeen has no federal or state constitutional basis.

The Louisiana Supreme Court has previously recognized that there are 16-year-olds whose knowledge of and ability to comprehend their legal rights surpass the knowledge and comprehension of many who are older. See, State v. Edwards, 406 So.2d 1331, 1340 (La.1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982). Hence, in addition to age, some factors that have been considered in assessing the totality of the circumstances include the accused’s experience, education, background, intelligence and capacity to understand the warning given at the time of the waiver. State v. Fernandez, 712 So.2d at 487, citing Fare v. Michael C., 442 U.S. at 725, 99 S.Ct. 2560. Moreover, the admissibility of a statement or confession is first a question for the trial court, and its conclusions on Lithe credibility and weight of testimony relating to voluntariness of a statement will not be overturned on appeal unless not supported by the evidence. State v. Williams, 01-1650, p. 14 (La.11/01/02), 881 So.2d 835, 843. In reviewing the correctness of the trial court’s ruling on the motion to suppress, the appellate court is not limited to evidence adduced at the hearing on the suppression motion, but may also consider pertinent evidence given at trial. State v. Wilson, 00-178, p. 3 (La. 12/8/00), 775 So.2d 1051, 1053; State v. Manson, 01-159, p. 6 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755.

Detective John Drury was the sole witness to testify at the hearing on the motion to suppress defendant’s statement. He testified that he took defendant’s statement on July 31, 2001. According to Detective Drury, defendant was taken into custody just before the statement was given. At the time of the arrest, Detective Drury advised defendant that he was charged with murder and the officer verbally informed the defendant of his constitutional rights. Defendant indicated to Detective Drury that he wanted to tell his version of the facts. Defendant was then placed in a police car, instructed not to talk, and advised that an interview would be conducted once defendant arrived at the Sheriffs Department. Defendant was then driven to the Homicide Bureau where he arrived at approximately 10:35 p.m. on July 31, 2001. Detective Drury then read the defendant his constitutional rights, and the defendant executed a written waiver of rights that indicated he understood and sought to waive his constitutional rights. Detective Drury began taking defendant’s taped statement at approximately 10:45 p.m. that evening. Detective Drury testified that he made no promises to the defendant nor did he coerce the defendant into giving the statement. He further testified that the taping continued uninterrupted and that, to his knowledge, defendant was interviewed only once. Detective Drury stated that defendant [^appeared upset during the statement and that defendant cried following the statement.

Detective Drury testified that defendant gave his date of birth as April 14, 1984, and never indicated or claimed that he was born in 1985. Additionally, Detective Dru-ry also confirmed that the information for defendant’s arrest warrant was taken from official police records and that those records showed 1984 as the year of defendant’s birth. At trial, Detective Drury gave essentially the same testimony as he provided during the hearing on the suppression motion. Defense counsel presented him with a document introduced into evidence as a copy of defendant’s birth certificate. The document indicated the date of defendant’s birth as April 14, 1985. Detective Drury reiterated that all of the information possessed by the police at the time of defendant’s arrest and questioning indicated that defendant was 17-years-old.

The record shows that Detective Drury twice informed defendant of his constitutional rights, including the right to remain silent. Defendant nonetheless indicated that he wanted to give a statement. No promises were made and no coercion was exerted to obtain the statement. Defendant, who was apparently upset by the circumstances in which he found himself, at no time sought to discontinue the statement. Even accepting that defendant was a juvenile at the time of the statement, this factor alone would not negate the vol-untariness of his statement. He had a seventh-grade education and the circumstances do not indicate defendant was unable to understand the nature of his actions. Additionally, he was no stranger to the judicial system because the record indicates that he had a previous juvenile record. Considering defendant’s life experiences, he may well have been the type of 16-year-old described by the Louisiana Supreme Court in State v. Edwards, supra, as a person who was mature beyond his chronological age.

|13Based on our review, we find no error in the trial court’s denial of defendant’s motion to suppress his statement. Considering the totality of the circumstances, it appears the defendant’s confession was freely and voluntarily given. Moreover, contrary to defendant’s suggestion that the trial court failed to consider defendant’s age in ruling on the motion, the transcript of the suppression hearing contains testimony concerning defendant’s age at the time of his arrest and questioning. Defendant’s error assignment challenging the denial of his suppression motion lacks merit.

Finally, defendant argues that the trial court committed error in denying his motion for new trial. The record shows that, following his conviction, defendant moved for a new trial, alleging as grounds that, under LSA-C.Cr.P art. 851(1), the guilty verdict was contrary to the law and evidence, and that, under LSA-C.Cr.P. art. 851(5), the ends of justice required a new trial in this case. The trial court denied the motion.

When, as in this case, a motion for new trial is grounded on an allegation under LSA-C.Cr.P. art. 851(1) that the evidence was insufficient to convict the defendant of the charged offense, the trial judge’s decision to grant or deny the motion is not subject to appellate review. The trial judge, acting as a thirteenth juror, may consider only the weight and not the sufficiency of the evidence in such a motion. State v. Snyder, 98-1078, p. 81, n. 21 (La.4/14/99), 750 So.2d 882, 860; State v. Battie, 98-1296, p. 25 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 855, writ denied, 99-1785 (La.11/24/99), 750 So.2d 980.

Additionally, the Louisiana Supreme Court, in State v. Snyder, 750 So.2d at 860, at fn. 22, stated the following regarding a motion for new trial grounded on an allegation under LSA-C.Cr.P. art. 851(5) that the ends of justice required the grant of a new trial: “It is settled that a judgment on these grounds (invariably denying the motion) is unreviewable by an |14appellate court, which may review the grant or denial only ‘for error of law.’ ” This error assignment presents nothing for our review.

The record was reviewed for errors patent as required by LSA-C.Cr.P. art. 920. We note that, during sentencing, the trial judge failed to advise defendant of the prescriptive period for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8, which provides that a court shall not consider an application for post-conviction relief filed more than two years after the judgment of the conviction and sentence has become final. Accordingly, we remand the matter with instructions to the district court to send the appropriate written notice to defendant regarding the prescriptive period for post-conviction relief and to file written proof in the record that defendant received the notice. State v. Jackson, 00-1014 (La.App. 5 Cir. 12/13/00), 778 So.2d 23, 33, writ denied, 01-162 (La.11/21/01), 802 So.2d 629.

AFFIRMED; REMANDED WITH INSTRUCTIONS.


author: 2EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Keith LIPTON.
    No. 2002-KA-162.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Douglas W. Freese, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appel-lee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and THOMAS F. DALEY.
   2EDWARD A. DUFRESNE, JR., Chief Judge.

On March 23, 2000, a grand jury for Jefferson Parish returned an 11-count indictment against defendant, Keith Lipton, and two others, Danon Barton and James Jenkins, alleging that they committed one count of conspiracy to commit armed robbery (LSA-R.S. 14:26 and 14:64); one count of aggravated burglary (LSA-R.S.14:60); two counts of armed robbery (LSA-R.S.14:64); one count of simple burglary (LSA-R.S.14:62); two counts of attempted armed robbery (LSA-R.S. 14:27 and 14:64); three counts of aggravated kidnapping (LSA-R.S.14:44); and one count of possession of stolen property valued at more than $1,000 (LSA-R.S.14:69). At the arraignment on March 27, 2000, defendant pled not guilty. The state subsequently amended the indictment to change the aggravated kidnapping charges to three counts of armed robbery.

On July 17, 2000, defendant withdrew his former pleas of not guilty, and pled guilty as charged to the amended indictment. The trial judge then sentenced defendant to 49/é years on each count of armed robbery, conspiracy to commit armed robbery, and attempted armed robbery. The trial judge also sentenced | ¡¡defendant to 30 years for aggravated burglary, 12 years for simple burglary, and 10 years for possession of stolen property. All of the sentences were ordered to be served concurrently with each other.

The state thereafter filed a multiple offender bill of information to enhance count three of the indictment (armed robbery), alleging that the defendant was a second felony offender. After being advised of his rights, defendant stipulated to the allegations of the multiple bill. The tidal judge vacated the previous sentence and imposed an enhanced sentence of 49/é years at hard labor without benefit of probation or suspension of sentence. Defendant now appeals, challenging the trial court’s denial of his motion to suppress evidence.

FACTS

According to the indictment, the crimes occurred between August 9, 1999 and August 17,1999 in Jefferson Parish. According to the factual basis recited by the prosecutor when defendant pled guilty, the charges stemmed from a conspiracy between defendant, Barton and Jenkins to commit armed robberies upon Asian people leaving Wal-Mart stores, believing these people would have cash that could be readily stolen. The prosecutor stated that around midnight on August 9, 1999, the three men followed an Asian woman and her son home, with Barton driving the car. Defendant and Jenkins entered the residence and robbed the occupants at gunpoint. Some of the people in the home were beaten during this incident.

The prosecutor further stated that, at approximately midnight on August 12, 1999, the trio broke into an Asian couple’s car in a Wal-Mart parking lot and stole various items from the vehicle. When the victims exited the store, Barton pulled next to them, and Jenkins and defendant attempted to rob them at gunpoint. The couple fled into the store, however.

The prosecutor also recounted that, on August 14, 1999, the trio followed two Asian women home from Wal-Mart. While one of them remained outside the phome, the other two men forced the women and an Asian man (Eric Tran) inside the home at gunpoint and demanded money. The third conspirator entered the house, after which $50,000 in cash, jewelry, and a bag belonging to Mr. Tran were taken. According to the prosecutor, Mr. Tran’s bag was discarded a few blocks from defendant’s home. Further, the prosecutor stated that defendant kept a necklace that was taken during the robbery, and the necklace was recovered after a search of defendant’s residence.

Finally, the prosecutor stated that defendant, Barton and Jenkins used some of the stolen money to buy new cars. At the time of their arrest, defendant and Barton were in “possession of cash stolen during the course of their conspiracy.”

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant contends that the trial court improperly denied his motion to suppress evidence. He specifically complains about evidence that was recovered pursuant to the execution of two search warrants. Defendant asserts that the applications for the search warrants for 1960 Elizardi Street and 18720 Pierre Court were issued without probable cause because the applications did not contain a nexus between the places sought to be searched and the property sought to be seized.

A person is constitutionally protected against unreasonable search and seizure of his house, papers and effects. Thus, a search and seizure of such shall only be made upon a warrant issued on probable cause, supported by oath or affirmation, and particularly describing the place to be searched and thing(s) to be seized. U.S. Const, amend IV; La. Const, art. I, § 5 (1974). State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1027. Probable cause sufficient to issue a warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or | ¡¡contraband may be found at the place to be searched.” State v. Johnson, 408 So.2d 1280, 1288 (La.1982); State v. Casey, 775 So.2d. at 1027-1028. The issuing magistrate must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, a fair probability exits that the evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 218, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The task of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. at 239, 103 S.Ct. 2317, 76 L.Ed.2d 527; State v. Byrd, 568 So.2d 554, 559 (La.1990); State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

We must now determine whether the magistrate had a substantial basis for concluding that probable cause existed. In the present case, the affidavit in support of 1960 Elizardi Street sought among other things, specifically described jewelry, a large amount of currency, a red purse, and any cellular phone records. Affiant, a New Orleans police officer, and co-affiant, Detective Bryan McGregor, related that on Monday, August 9, 1999, Kenner Police Officers were dispatched to 3432 East Loyola Drive in Kenner in reference to a residential burglary. The victim related to one of the Kenner officers that he heard the doorbell and opened the door. Thereafter, three black males forcibly entered the home at gunpoint. The men forced the victims to lie on the floor, threatened to kill them, and began beating them. They demanded money and continued to beat them until the victims complied. The men then ransacked the home and took money, jewelry, purses, checkbooks, and wallets.

The affiant related that, on August 10, 1999, one of the victims told Detective McGregor (co-affiant) that she had found a cellular telephone that did not belong to any of the residents in the house. On August 12, 1999, a subpoena duces tecum was served on Prime Co., the cellular phone provider. On August 16, | ¡¡1999, Detective McGregor learned that the cellular subscriber of the telephone found in the victims’ home was “Keith D. Lipton, street address: 1960 Elizardi Street” in New Orleans.

Upon conducting a criminal history check, Detective McGregor learned that Lipton had 11 felony arrests, including three for burglary of an inhabited dwelling. Detective McGregor displayed a photographic lineup containing defendant’s photograph to one of the victims, who positively identified Keith Lipton as one of the perpetrators. The affiant further related that Keith Lipton had been arrested on August 9, 1999 for a traffic violation and was driving a vehicle registered to a Denise Young, with an address of 1960 Elizardi Boulevard in New Orleans. The affiant noted that this was the same address that Lipton used to obtain the Prime Co. telephone.

With regard to this affidavit, we find that there is a sufficient connection between the place searched and the items sought. The Elizardi Street affidavit indicates that the defendant used that address to obtain the cellular phone that was found in the victims’ residence the day after the armed robbery. Further, the affidavit indicates that the defendant was arrested in a vehicle that was registered to a person at the Elizardi Street address. Based on this, as well as the other information contained in the affidavit, the magistrate could have reasonably concluded that the defendant was likely to keep the sought-after property, including his cellular phone records, as well as the spoils from the crimes and firearms used to commit the crimes, at the Elizardi Street residence.

Defendant also complains about the search conducted at 13720 Pierre Court. The affidavit in support of that search warrant sought a number of objects including specifically described items of jewelry and a large amount of currency. The affi-ant, a New Orleans Police Officer, related that, on August 14, 1999, at approximately 12:51 a.m., Kenner Police Officers were dispatched to 4168 [7Montrachet Drive in Kenner in reference to an armed robbery. The affiant related that one of the victims, Eric Tran, told the responding officers that three black males armed with handguns approached him and his wife in their driveway when they exited their car. After forcing the victims inside their residence at gunpoint, the men robbed “everyone” in the residence of cash and jewelry. According to the affidavit, approximately $50,000 in cash was taken in addition to a “large amount” of jewelry. The affiant related that Keith Lipton was arrested by the New Orleans Police Department on August 17, 1999 on an outstanding Kenner warrant for armed robbery, aggravated burglary, false imprisonment, and possession of a firearm by a convicted felon. According to the affidavit, Lipton was also under investigation for the instant robbery and had $2,000 in cash on his person when arrested. The affidavit continued as follows:

Danon Barton, an associate of Keith Lipton, and the driver of a 1992 Mercury Cougar that Keith Lipton was arrested in, was interviewed in reference to the Armed Robbery of Mr. Tran. It should be noted that Danon Barton had $1,445.00 cash in his possession at the time he was interviewed.
Danon Barton provided a taped voluntary statement stating that on August 13, 1999, at approximately 1900 hours Lipton borrowed his vehicle to commit an Armed Robbery in Kenner. On August 14, 1999, at approximately 0100 hours Keith Lipton returned with Danon Barton’s vehicle and stated to Danon Barton that he just robed [sic] an Asian family in Kenner. Keith Lipton then gave Danon Barton $2500.00 for letting him borrow his car for the robbery. Danon Barton then drove Keith Lipton to Keith Liptons [sic] mother’s residence located at 13720 Pierre Court, New Orleans, La.
Danon Barton also stated that the $1445.00 he had in his possession was given to him by Keith Lipton as Keith Lipton entered Danon Barton’s vehicle just before Keith Lipton was arrested by the New Orleans Police Department. Keith Lipton handed Danon Barton the $1,445.00 and told him drive him to Mississippi.
Danon Barton also stated that on August 14, 1999, at 1400 hours, several hours after the Armed Robbery of Mr. Tran, Keith Lipton, Danon Barton, and James Jenkins each purchased a vehicle valued at more than $3,500.00 each vehicle, and paid for the vehicles with cash.
| ¡¡Keith Lipton used the address of 13720 Pierre Court, New Orleans, La., for his temporary registration and sales receipt of the vehicle he purchased.

We likewise find that the information contained in this affidavit provided a sufficient connection between the place searched and the items sought. According to the Pierre Court affidavit, Danon Barton said in a recorded statement that he brought Lipton to that residence at 1:00 a.m. on August 14, 1999, after Lipton told him he had committed an armed robbery of an Asian family in Kenner and Lipton paid Barton for the use of Barton’s car during the robbery. Further, Lipton used the Pierre Court address when purchasing a vehicle later on August 14, 1999. Based on this information, a magistrate could have reasonably concluded that the defendant was likely to keep the sought-after property, including the items taken in the robbery and the gun used during the robbery, at the Pierre Court residence.

Based on the foregoing discussion, we find that the information in the affidavits provided a substantial basis for the magistrate to conclude that probable cause exited to issue the search warrants. Accordingly, the trial judge did not err in denying defendant’s motion to suppress evidence. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant also requests that this court review the record for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1976); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals an error in sentencing.

After imposing the original sentences, the trial judge pronounced that the “sentence is without benefit of probation, parole or suspension of sentence.” However, not all of the offenses for which defendant was sentenced could be imposed without benefits. In particular, the sentences for counts two, five and |fleleven (aggravated burglary, simple burglary, and illegal possession of stolen things), are illegal because the respective statutes, LSA-R.S. 14:60, 14:62(B); 14:69(B)(1), do not permit a trial judge to impose the sentences without benefit of parole, probation or suspension of sentence. Therefore, we amend the sentences to delete the restrictions on benefits and order the trial court to correct the commitment accordingly. State v. Gordon, 00-1013 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 151, writ denied, 2-0209 (La.2/14/03), 836 So.2d 134.

For the reasons set forth herein, we affirm defendant’s convictions and sentences. The matter is remanded to the trial court with instructions to correct the commitment in accordance with this opinion.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . Defendant pled guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976), thus reserving his right to appeal the trial court’s denial of his motion to suppress.