author: B STEVEN R. PLOTKIN, Judge.

text:
    STATE of Louisiana v. Clifford DOLEMAN.
    No. 2002-KA-0957.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.

      Harry F. Conniek, District Attorney, Julie C. Tizzard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY).
   B STEVEN R. PLOTKIN, Judge.

This is a criminal appeal of a conviction for armed robbery in violation of La. R.S. 14:64, which resulted in a sentence of one hundred ninety eight years as a second felony habitual offender. Appellant urges that the trial court erred in denying defendant’s motion to recuse the judge, in failing to impose sanctions on the State when one of its witnesses violated a sequestration rule and in imposing an excessive sentence. In addition, the appellant, pro se, argued that the State engaged in pros-ecutorial misconduct and that the trial court erred in quashing a defense subpoena for the trial judge. For the following reasons, the conviction and sentence are affirmed.

PROCEDURAL HISTORY

Defendant Clifford Doleman was charged by bill of information on October 27, 1994 with armed robbery, a violation of La. R.S. 14:64, and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Defendant pleaded not guilty at his November 8, 1994 arraignment. The trial court denied defendant’s motions to suppress on January 80 and March 29, 1995. Trial commenced Hon September 26, 1995, but a mistrial was declared that same date after the jury was unable to reach a verdict. On January 23, 1996, defendant was tried and found guilty as charged on the armed robbery count by a twelve-person jury. On February 9, 1996, defendant was adjudicated a second-felony habitual offender and sentenced to one hundred and ninety-eight years at hard labor, without benefit of probation, parole or suspension of sentence. On April 9, 1996, the State entered a nolle prosequi as to count two, the charge of possession of a firearm by a convicted felon. On July 2, 1997, this court affirmed defendant’s conviction and sentence.

On January 14, 2000, in response to defendant’s petition for writ of habeas corpus, citing the State’s failure to provide him with a transcript of his first trial for Duse at his second trial, the United States District Court for the Eastern District of Louisiana effectively ordered that defendant be retried. This decision was affirmed by the U.S. Court of Appeals for the Fifth Circuit. On April 18, 2001, the trial court denied defendant’s motion to suppress the evidence. On April 25, 2001, defendant was tried by a twelve-person jury and again found guilty as charged of armed robbery. On May 9, 2001, the trial court denied two motions for new trial filed by defendant, and a motion in arrest of judgment. On June 13, 2001, defendant was again adjudicated a second-felony habitual offender and sentenced to one hundred ninety-eight years at hard labor, without benefit of parole, probation or suspension of sentence. The court denied defendant’s motion to reconsider sentence, and granted his motion for appeal.

STATEMENT OF FACTS

New Orleans Police Officer Neville Payne testified that on August 30, 1994, he responded to an armed robbery at a Wal-greens drugstore located at the corner of St. Claude and Caffin Avenues. He was met by the manager, Mr. Saulny, who gave the officer an identification card that was dropped by the robber, which card belonged to defendant. Officer Payne interviewed three other witnesses, Ms. Washington, Ms. Pleasant and Ms. Gusman. The officer recovered a rusty, sawed-off shotgun in some hedges on St. Claude Court, right behind the Walgreens. A pair of sunglasses and a baseball cap were also recovered. Officer Payne broadcast a description of the suspect, and of the vehicle in which he fled.

| ¿Officer Payne admitted that neither Mr. Saulny, Ms. Pleasant or Ms. Gusman were able to give him a description of the suspect’s clothing and physical characteristics. He was confronted with his testimony given at a prior proceeding that they had provided a description of the suspect. Officer Payne confirmed that Ms. Jackie Robinson observed defendant place the shotgun in the hedges. After refreshing his memory by reviewing his police report, Officer Payne stated that Ms. Robinson gave him a general description of the person with the shotgun as a very dark, very thin black male of unknown height, wearing blue clothing. Ms. Robinson described the suspect’s vehicle as brown over light brown in color, with a temporary tag in the window. It was noted that Officer Payne testified at one prior proceeding that the two-toned dark brown/light brown vehicle was possibly a Maxima, but testified at another proceeding that he broadcast a description of the vehicle over the police radio as a two-toned brown “possible Nissan Sentra or Nissan.”

Alisha Washington testified that she was working at the Walgreens drugstore at St. Claude and Catherine Avenues at the time of the robbery. She identified defendant as a person she saw using a pay telephone at the drugstore that day. Ms. Washington testified that defendant looked suspicious, because he was paying more attention to what was going on around him than the conversation he was having. Ms. Washington then entered the drugstore and began speaking with Mr. Saulney. Defendant entered the store, but then walked back outside to the pay phone. Ms. Washington then exited the store to check on her children, who were in her car. She testified that defendant was using the pay telephone again and that it was at that time that she got the best look at him. She described him as dark-skinned, wearing a black t-shirt, blue jeans, tennis shoes and a baseball cap. She | Ralso stated that he was wearing sunglasses when she first saw him in the phone booth, but he was not wearing them when she went back to her car to check on the children.

Ms. Washington testified that she then walked back into the store and noticed the defendant entering in front of her. Defendant walked toward the office; and Ms. Washington walked toward the cosmetics counter. She subsequently heard someone in the front of the store talking loudly and screaming, but she did not actually witness the robbery. Ms. Washington gave a description of defendant while talking to the employees and concluded from that discussion that defendant was the robber. Ms. Washington later talked to police, and a week later was presented with a photographic lineup. She selected defendant’s photograph, although after considering another photograph.

Ms. Washington was confronted with her testimony from prior hearings that she did not remember whether the person she saw was wearing a hat. Ms. Washington’s prior testimony indicated that she testified that the defendant had sunglasses on every time she saw him. The State and defendant stipulated that the sunglasses found at the scene, which had been introduced in evidence, belonged to defendant. Ms. Washington testified that she considered defendant to be tall, but was confronted with her prior description that the person she had seen was “maybe” five feet, five inches tall.

New Orleans Police Officer James Adams testified that he stopped a vehicle defendant was driving on August 30, 1994, at approximately 8:00 p.m. Officer Adams first observed defendant driving over the St. Claude Avenue Bridge in a brown and beige four-door Maxima, with a temporary tag, which matched the description of a vehicle involved in an armed robbery. After making the stop, | (¡Officer Adams approached the vehicle and noticed a shoe box full of coins in bank wrappers. Officer Hunter, who had arrived to assist, removed a large wad of cash from defendant’s shirt pocket. According to Officer Adams, defendant explained that an unknown man threw a shoebox of money at him, and that he simply picked it up. Defendant’s clothing was confiscated, including blue sweatpants and a black ski mask. Officer Adams did the follow up investigation, showing the photographic lineup to either two or three witnesses. Officer Adams testified that all witnesses picked out defendant’s photograph.

Officer Adams was confronted with his prior testimony wherein he said defendant was driving a black Impala. However, Officer Adams testified that this was an error in the transcript and that he was certain that defendant had been driving a Maxima.

New Orleans Police Officer Richard Hunter assisted Officer Payne in the investigation of the armed robbery. He observed Officer Adams discover the shotgun. He later assisted Officer Adams in the arrest of defendant. He found the large wad of money in defendant’s shirt.

Glenda Gusman testified that she was working at the Walgreens drugstore at the time of the robbery. She and the manager Mr. Saulny were in the office. Defendant entered and pointed a short double-barreled shotgun at Mr. Saulny. Betty Pleasant entered the office during the robbery. Before leaving, defendant forced Ms. Pleasant to tape up Mr. Saulny. He then forced Ms. Pleasant and Ms. Gusman to lie on the floor. She identified defendant’s photo in the lineup shown to her, and identified defendant in court.

Stanley Saulny testified that he was the manager of the Walgreens drugstore at the time of the robbery. He said defendant pointed a shotgun at his head, 17threatened to shoot him, and robbed him. Before defendant left the office he threatened to kill the employees if they followed him. After they observed defendant leave on a video monitor, Mr. Saulny went outside to see what kind of car defendant was driving. He noticed that defendant had dropped some coin trays outside, along with his sunglasses and his picture identification card.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 1

In appellate counsel’s first assignment of error, defendant claims that the trial court erred in denying defendant’s motion to recuse the trial judge.

After defendant’s case was set for a new trial, he filed a motion to recuse the presiding judge on the grounds of bias, prejudice or personal interest, and an inability to be fair and impartial, pursuant to La. C. Cr. P. article 671(A)(1) & (6). Defendant claimed that during his original sentencing the trial judge expressed his personal belief that defendant should die in prison.

La. C. Cr. P. article 671(A) provides that in a criminal case a judge shall be recused when, among other things, he:

(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(6) Would be unable, for any other reason, to conduct fair and impartial trial.

A trial judge is presumed to be impartial. State v. Edwards, 420 So.2d 663, 673 (La.1982); State v. Mims, 97-1500, p. 38 (La.App. 4 Cir. 6/21/00), 769 So.2d 44, 69. State v. Parker, 96-1852, p. 15 (La.App. 4 Cir. 6/18/97), 696 So.2d 599, 607. For a defendant to be entitled to the recusal of a judge in a criminal case on the grounds of bias or prejudice, the claim must be of a substantial nature, based upon more than conclusory allegations. Parker, 96-1852 at p. 15, 696 So.2d at 607; State v. Walton, 469 So.2d 1204, 1206 (La.App. 4 Cir.1985). If any of the six grounds for recusal set forth in La. C. Cr. P. article 671 are proven, there is no discretion, the judge shall be recused. In re: Lemoine, 96-2116, p. 12 (La.1/14/97), 686 So.2d 837, 844, reasons amended in part on rehearing, (La.4/4/97), 692 So.2d 358.

In originally sentencing defendant to one hundred ninety-eight years at hard labor after his 1996 trial and conviction, the court stated:

The Court, Mr. Doleman, obviously feels that you should never be back on the streets and for that reason the Court is going to give you the maximum sentence the Court can. The Court obviously understands that you will not be able to serve the entire sentence but the Court wants this sentence to be a message to any future pardon or parole board that might consider your applications that at least they’ll know this Court thinks you should die in Angola.

In denying defendant’s motion to recuse, the trial court cited State v. Kendrick, 96-1636 (La.App. 3 Cir. 6/25/97), 699 So.2d 424. In Kendrick, the defendant argued on appeal that the trial judge had been biased and unfair. During sentencing, the trial judge indicated that he did not believe the defendant’s assertions of innocence with respect to some counts other than the two to which he had pleaded guilty. The appellate court held that the defendant had waived his right to raise the issue because he had not filed a motion to recuse the judge. Id. at p. 15, 699 So.2d at 432. The court also stated that the one statement did not show |9bias and would not have supported a motion to recuse had one been filed. Id. at p. 15, 699 So.2d at 433.

In the instant case, in addition to the statement made by the trial judge at the first sentencing, defendant cites a colloquy between himself and the trial judge that was initiated by defendant at his sentencing in the instant case. Defendant was afforded the opportunity to make a statement before sentencing. Defendant informed the trial judge that he would be back from Angola, and the court would send him to Angola again, and he would be back, and so on, “until you die or I die.” The trial court sentenced defendant, and then told defendant a story about a now-deceased Criminal District Court judge. A defendant told the now-deceased judge that the judge would die before him, and the now-deceased judge responded that the defendant might be right, but that the defendant was going to die on the inside and he was going to die on the outside.

The trial judge in the instant case imposed the same maximum sentence on defendant that he had imposed after defendant’s 1996 trial and conviction. In imposing sentence, the judge adopted the reasons given at the previous sentencing. He noted that defendant had a prior armed robbery conviction for which he had served time in prison. He also noted that defendant had confessed to numerous other armed robberies after his 1980 arrest for armed robbery. The record reflects that in 1980 defendant was arrested and charged with twenty-five other armed robberies, a residence burglary, one count of attempted murder, and with being a fugitive from St. Bernard Parish on a warrant for bank robbery. However, prosecution apparently was initiated only on two counts of armed robbery and one count of simple burglary of in inhabited dwelling. Defendant pleaded guilty to one count of armed robbery and the other two counts were dropped. The trial court linnoted that defendant pointed a sawed-off shotgun at the Walgreens manager, and threatened to kill him and the two female employees.

The trial judge’s candid statement at the first sentencing that he believed defendant should die in prison simply reflected the court’s position that defendant was just the type of incorrigible, dangerous criminal the legislature had in mind in enacting the Habitual Offender Law, which effectively provided for the one hundred ninety-eight year maximum sentence, without benefit of parole, probation or suspension of sentence, for a second-felony offender convicted of armed robbery. The court’s comment also reflected the reality that defendant could never complete the sentence and be released from prison.

Although defendant has the benefit of a full and complete record, he fails to cite a single trial court ruling or action that he alleges was motivated by bias or prejudice toward him, other than the sentencing. Under these circumstances, it cannot be said that defendant has proven that the trial judge should have been recused on the ground that he was biased, prejudiced or personally interested in the cause such that he was unable to conduct a. fair and impartial trial, or that for any other reason the trial judge was unable to conduct a fair and impartial trial.

This assignment of error is without merit.

{^ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, defendant claims that the trial court erred in failing to impose sanctions under La. C.E. article 615(C), due to Officer Adams’ alleged violation of the sequestration rule by talking to Mr. Saulny and Ms. Gusman.

La. C. Cr. P. article 764 formerly covered the exclusion or sequestration of witnesses. That article now states that the exclusion of witnesses is governed by La. C.E. article 615. Under La. C.E. article 615(A), the court on its own motion may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom and refrain from discussing the facts of the case with anyone other than counsel. La. C.E. article 615(C) authorizes sanctions for violation of the sequestration order, including contempt, instructions to the jury, or disqualification of the witness when other sanctions are insufficient.

The purpose of the sequestration article is to prevent witnesses from being influenced by the testimony of earlier witnesses, and to strengthen the role of cross-examination in developing the facts. State v. Castleberry, 98-1388, p. 28 (La.4/13/99), 758 So.2d 749, 772; State v. Chester, 97-2790, p. 8 (La.12/1/98), 724 So.2d 1276, 1282. The mere fact that a State witness speaks to another witness does not establish a violation of the sequestration order and does not show prejudice. State v. Strickland, 94-0025, p. 43 (La.11/1/96), 683 So.2d 218, 236. A trial court’s decision whether to impose a sanction for violating a sequestration order will not be disturbed absent an abuse of discretion. State v. Gilmore, 529 So.2d 859, 864 (La.App. 4 Cir.1988); see also State v. Julian, 2000-1238, p. 10 (La.App. 4 Cir. 3/14/01), 785 So.2d 872, 878.

1 ^Defendant timely objected concerning the alleged violation of the sequestration rule, after purportedly receiving a note from Sylvia Atkinson. The trial court delayed addressing the matter until after the jury had retired to deliberate, at which time Ms. Atkinson testified. She stated that after Officer Adams testified, he exited the courtroom and was talking to others. However, Ms. Atkinson said that she was sitting in what she characterized as a “lobby,” and that Officer Adams was in the hallway. She admitted that she could not see specifically to whom Officer Adams was talking, saying only that he was talking to a bunch of people in the hallway. She said Mr. Saulny, the Walgreens manager, and Ms. Gusman, a Walgreens employee, had been in the hallway when she came back from lunch. Ms. Atkinson further testified that another officer also came out and was discussing his testimony. Although Ms. Atkinson stated that they were laughing and joking about some of the things to which people had testified, she admitted that she could not recall any specifics as to the contents of Officer Adams and the unidentified officer’s discussions with the people in the hallway.

The trial court determined that Ms. Atkinson’s testimony failed to establish “any specifics” as to one witness learning something from another witness such that the former could thereby “shade” his or her testimony.

Defendant claims that the alleged violations of the sequestration order were harmful to him because his entire defense strategy was to impeach witnesses based on their prior testimony concerning the identifications. He argues that the trial court should have disqualified Mr. Saulny or Ms. Gusman as witnesses, or at least strongly admonished the jury about the violation of the sequestration order, and submits that the court’s failure to do so constitutes reversible error.

1 ^Defendant notes that his first trial in 1995 ended in a hung jury, implicitly suggesting that the guilty verdict in the instant 2001 trial was due to collusion between witnesses in the hallway. However, it can be noted that defendant was retried in January 1996 and convicted then, in addition to being convicted in the instant trial.

The violation of a court’s sequestration order operates to undermine the public’s faith in its judicial system. However, Ms. Atkinson’s testimony was vague and conflicting. She admitted she did not know to whom Officer Adams, or the other unnamed officer, were talking, given that she was sitting in a lobby or foyer between the hallway and the courtroom. She was also vague as to what she heard either officer say. It cannot be said that the trial court erred in essentially finding that defendant failed to prove a violation of the sequestration order. It cannot be said that the trial court’s conclusion was in error.

This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 3

In this last assignment of error by appellate counsel, defendant claims that his sentence was constitutionally excessive.

Article I, section 20 of the Louisiana Constitution explicitly prohibits excessive sentences; State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272, rehearing granted on other grounds, (La.App. 4 Cir. 3/16/99); State v. Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461, grant of post conviction relief on other grounds affirmed, 2001-1667 (La.App. 4 Cir. 2/6/02), 809 So.2d 1132. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2982 at p. 10, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676; State v. Webster, 98-0807, p. 3 (La.App. 4 Cir. 11/10/99), 746 So.2d 799, 801, reversed on other grounds, State v. Lindsey, 99-3256 (La.10/17/00), 770 So.2d 339. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 656 So.2d at 979; State v. Hills, 98-0507, p. 5 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1217.

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La. C. Cr. P. article 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189; State v. Robinson, 98-1606, p. 12 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 127. If adequate compliance with La. C. Cr. P. article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the ease, keeping in mind that maximum sentences should be preserved for the most egregious violators of the offense so charged. State v. Ross, 98-0283, p. 8 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, 762; State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

Defendant was sentenced to the maximum . sentence permissible as a second-felony habitual offender convicted of armed robbery, one hundred ninety-eight years at hard labor without benefit of probation, parole or suspension of sentence, twice the longest sentence provided for a first conviction of armed robbery. La. R.S. 14:64(B) and La. R.S. 15:529.1(A)(1)(a).

In sentencing defendant, the trial court cited its reasons set forth at the previous sentencing. At that earlier sentencing, the court specifically stated that it found that none of the mitigating factors listed in La. C. Cr. P. article 894.1 applied to defendant’s case. Conversely, the court stated that it found that there was an undue risk that defendant would commit another crime, that he was in need of correctional treatment, and that a lesser sentence would deprecate the seriousness of defendant’s crime. The court noted defendant’s prior conviction for armed robbery, in 1980, for which defendant received a sentence of twenty years at hard labor. The court noted that defendant was released from prison and committed the armed robbery in the instant case within one year. The court noted that defendant had put a sawed-off shotgun in the face of Mr. Saul-ny and threatened to kill him and the two female employees in the office. The court noted that defendant had confessed to twenty other armed robberies. As previously noted, the record reflects that in 1980 defendant was arrested and charged with twenty-five other armed robberies, a residence burglary, one count of attempted murder, and with being a fugitive from St. Bernard Parish on a warrant for bank robbery. Defendant pleaded guilty to one count of armed robbery in 1980 and the State dropped a l1fisecond count of armed robbery and one count of simple burglary of an inhabited dwelling. Finally, as previously noted, the trial court made it clear that the sentence was intended to insure that defendant would never be released from prison.

Defendant notes as mitigating factors that no one was injured in the Walgreens robbery, that he was cooperative when stopped and arrested, and that there was never any indication that he was involved with drugs. It is questionable whether this latter factor is mitigating or not, with defendant essentially conceding that he was not a drug addict driven by his addiction to commit robberies. Defendant asserts in his brief that he has the support of family members who want to help him. However, he offers no support for this claim. Finally, defendant, who was forty-five years old at the time he was sentenced in the instant case, submits that there is a “real possibility” that he can turn his life around.

Maximum sentences of one hundred ninety-eight years for second-felony offenders convicted of armed robbery have been upheld as constitutional. See State v. Donahue, 408 So.2d 1262 (La.1982) (“The extended imprisonment is not needless and purposeless, but done to negate the appellant’s opportunity to commit such crimes in the future.”); State v. Curtis, 363 So.2d 1375 (La.1978).

In the instant case, ensuring that defendant will never again be able to threaten the life another law-abiding citizen by putting a sawed-off shotgun into his or her face is a measurable contribution to acceptable goals of punishment, and does not constitute the purposeless infliction of pain and suffering. Accordingly, it cannot be said that the sentence is unconstitutionally excessive.

This assignment of error is without merit.

| nPRO SE ASSIGNMENT OF ERROR NO.l

In his first pro se assignment of error, defendant contends that the trial court and prosecution knowingly presented false testimony to obtain his conviction.

Where a prosecutor allows a State witness to give false testimony without correction, a reviewing court must reverse the conviction if the witness’s testimony reasonably could have affected the jury’s verdict, even if the testimony goes only to the credibility of the witness. Napue v. Illinois, 360 Ú.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); State v. Broadway, 96-2659, p. 17 (La.10/19/99), 753 So.2d 801, 814; State v. Williams, 338 So.2d 672, 677 (La.1976). To prove a Napue claim, the defendant must show that the prosecutor acted in collusion with the witness to facilitate false testimony. Broadway, 96-2659, p. 17, 753 So.2d at 814. Furthermore, fundamental fairness, i.e., due process, is offended “when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue, 360 U.S. at 269, 79 S.Ct. 1173. When, false testimony has been given under such circumstances, the defendant is entitled to a new trial unless there is no reasonable likelihood that the alleged false testimony could have affected the outcome of the trial. Broadway; 96-2659 at p. 17; 753 So.2d at 814; Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, the grant of a new trial based upon a Napue violation is proper only if: (1) the statements at issue are shown to be actually false; (2) the prosecution knew they were false; and (3) the statements were material. United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir.1997).

11RPefendant focuses on issues he covered during cross-examination of various witnesses. He cites testimony of Wal-greens manager Mr. Saulny and Officer Adams concerning whether Mr. Saulny made an identification of defendant in a photo lineup and/or was shown photos or a photo lineup. Defendant also cites Mr. Saulny’s testimony from a motion to suppress hearing at which Officer Adams testified that Mr. Saulny did not see the robber’s face, that he did not wish to see the robber’s face, and that all he recalled was a shotgun pointed at his head. Defendant cites allegedly conflicting testimony by Officer Adams as to how many photo lineups he showed Walgreen employee Ms. Pleasant, and whether he showed one to Ms. Robinson, the witness who saw a person discard the sawed-off shotgun. Finally, defendant cites conflicting testimony by Officer Neville Payne.

However, defendant merely establishes instances of conflicting testimony of different witnesses. The mere fact that witnesses testified differently at different proceedings does not prove that they testified falsely. At best, such conflicting testimony indicates that they may have recalled things differently at a 1995 proceeding than they did at a trial six years later. Furthermore, it cannot be presumed that prosecutor has knowledge that a witness’s answer is false simply because the witness may have testified somewhat differently at a prior proceeding.

Defendant fails to show a Na/pue violation because he fails to show that any testimony was false and that the prosecutor knew any testimony was false.

This assignment of error has no merit.

PRO SE ASSIGNMENT OF ERROR NO. 2

In this assignment of error, defendant claims that the trial court erred in quashing his subpoena of the trial judge. Defendant claims he was prejudiced by |19this action, as it would have permitted him to show that Mr. Saulny lied to the jury about identifying defendant as the robber, “because the trial court stipulated such, during defendant’s motion to suppress hearings.” Defendant cites an instance during his motion to suppress hearing held on March 24, 1995, in which the trial court sustained an objection by the State as to a question of Mr. Saulny as to what he did with the identification card he found. The State objected as to relevancy, and the trial court stated: “Objection sustained. He didn’t make an I.D.” The trial court later sustained another relevancy objection for the same reason. Neither of these actions by the trial court constituted a “stipulation” by the trial court. There had been prior testimony that Mr. Saulny had not made an identification of defendant in an identification procedure. Defendant suffered no prejudice from being unable to call the trial judge as a witness to be questioned as to why he sustained these two objections.

This assignment of error has no merit.

CONCLUSION

Based on the foregoing, we find no reversible error was committed in the proceedings below. Therefore, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Defendant filed numerous applications for supervisory writs, as follows:

        State v. Doleman, unpub., 95-0963 (La.App. 4 Cir. 5/12/95) (writ denied — adequate remedy on appeal; request for stay denied), writ denied, 95-1306 (La.6/2/95), 654 So.2d 1116, writ denied, 95-2691 (La. 11/17/95), 663 So.2d 708.

        State v. Doleman, unpub., 95-1463 (La.App. 4 Cir. 8/22/95) (writ denied — delay in trial due to defense continuances, motion for speedy trial premature).

        State v. Doleman, unpub., 95-2184 (La.App. 4 Cir. 10/4/95) (writ denied — same claims considered and rejected in 95-0963).

        State v. Doleman, unpub., 95-2686 (La.App. 4 Cir. 1/4/96) (writ granted in part — as to transferring motion for production of transcript to trial court for hearing; writ denied otherwise).

        State v. Doleman, unpub., 96-0066 (La.App. 4 Cir. 1/22/96) (writ denied — repetitious regarding motion for production of transcript from first trial).

        State v. Doleman, unpub., 96-0360 (La.App. 4 Cir. 2/29/96) (writ denied — adequate remedy on pending appeal), writ denied, 96-0639 (La.3/22/96), 669 So.2d 1211.

        State v. Doleman, unpub., 96-0675 (La.App. 4 Cir. 4/17/96) (writ denied — motion to recuse district judge moot because remaining charges nolle prosequied), writ denied, 2001-1407 (La.5/25/01), 793 So.2d 169.

        State v. Doleman, unpub., 97-2822 (La.App. 4 Cir. 2/4/98) (writ denied — as to denial of motion to correct illegal sentence; no merit to motion to recuse trial judge from consideration of any future post-conviction proceedings).

        State v. Doleman, unpub., 98-0551 (La.App. 4 Cir. 4/28/98) (writ denied — no error in denial of application post conviction relief).

        State v. Doleman, unpub., 98-1041 (La.App. 4 Cir. 6/24/98) (writ denied — first five claims previously reviewed and found to be without merit; claim in supplemental application for post conviction relief not supported by facts). State v. Doleman, unpub., 98-1690 (La.App. 4 Cir. 7/29/98) (writ denied — claims without merit), writ denied, 98-2268 (La. 1/29/99), 736 So.2d 822.

        State v. Doleman, unpub., 98-2462 (La.App. 4 Cir. 11/18/98) (writ denied — on showing

        made), writ denied, 98-3069 (La. 1/29/99), 736 So.2d 840.

        State v. Doleman, unpub., 98-2861 (La.App. 4 Cir. 12/16/98) (writ denied — on showing made).

        State v. Doleman, unpub., 99-0692 (La.App. 4 Cir. 5/16/99) (writ denied — no error in denial of motion for new trial).

        State v. Doleman, unpub., 2000-0535 (La.App. 4 Cir. 4/5/00) (writ denied).

        State v. Doleman, unpub., 2000-2463 (La.App. 4 Cir. 1/10/01) (writ granted in part — as to trial court's denial of application for post conviction relief on ground of untimeliness; appellate action pretermitted as to claims asserted therein).

        State v. Doleman, unpub., 2001-0160 (La.App. 4 Cir. 2/16/01) (writ denied — moot).

        State v. Doleman, unpub., 2001-0641 (La.App. 4 Cir. 4/24/01) (writ denied — no error in denial of motion to recuse trial judge; adequate remedy on appeal as to denial of motions to suppress), writ denied, 2001-1407 (La.5/25/01), 793 So.2d 169.

        State v. Doleman, unpub., 2001-0904 (La.App. 4 Cir. 7/12/01) (writ denied' — adequate remedy on appeal as to denial of motion for new trial), writ denied, 2001-2075 (La.5/31/02), 816 So.2d 865.

        State v. Doleman, unpub., 2001-2096 (La.App. 4 Cir. 12/7/01) (writ denied — moot, appellate counsel assigned), writ denied, 2001-1941 (La.4/12/02), 812 So.2d 667.

      . State v. Doleman, unpub., 96-1946 (La.App. 4 Cir. 7/2/97), 698 So.2d 73, writ denied, 97-2278 (La. 1/16/98), 706 So.2d 974.

      . Doleman v. Cain, (E.D.2000), 2000 WL 42209.

      . Doleman v. Cain, 245 F.3d 791 (5 Cir.2000).

      . While the transcript refers to Catherine Avenue, the correct name of the street is believed to be Caffin Avenue.


source: Caselaw Access Project

author: | .PEATROSS, J.

license: Public Domain

text:
    FORD NEW HOLLAND, INC., Plaintiff-Appellant, v. CITY OF BOSSIER CITY AND BOSSIER PARISH, Through its Director of Finance, Charles Glover, Defendants-Appellees.
    No. 36,544-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Lunn, Irion, Salley, Carlisle & Gardner, by Charles W. Salley, James A. Mijalis, Penny N. Nowell, Shreveport, for Appellant.
    Truly W. McDaniel, Assistant City Attorney, for Appellee.
    Before CARAWAY, PEATROSS and KOSTELKA, JJ.
   | .PEATROSS, J.

This appeal arises from a trial court judgment in favor of defendants, City of Bossier City (“City”) and Bossier Parish (“Parish”), and against the plaintiff, New Holland North America, Inc. (formerly known as Ford New Holland, Inc.), rejecting the demands of the plaintiff. The plaintiff (“New Holland”) appeals the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

New Holland imported tractors and other equipment from outside the state and, through arm’s length transactions, subsequently leased these tractors and other equipment to Louisiana Downs, Inc. (“Louisiana Downs”) in Bossier City, Bossier Parish, Louisiana. The City and Parish applied a use tax to these lease transactions. The entire amount at issue in this matter consists of payments of use tax on New Holland’s importation and subsequent lease of tractors and equipment to Louisiana Downs. On March 7, 1994, New Holland paid use tax to the City and Parish under protest, pursuant to La. R.S. 47:1576, in the amount of $15,233.68, for the tax period October 1993. Subsequently, New Holland made an additional payment under protest, in the amount of $14,861.16, for the tax period September 1994. The City and Parish acknowledged receipt of the payments under protest and placed the funds in escrow in accordance with La. R.S. 47:1576.

New Holland paid no sales tax on its purchase of the tractors and equipment leased to Louisiana Downs. The tax payments by New Holland were all use taxes, computed at four percent of the price of the equipment. | PThe four percent use tax was made up of a 2.5 percent city tax and a 1.5 percent parish tax.

New Holland filed a lawsuit against the City and Parish, seeking a refund of the use taxes paid under protest. The trial court was asked to determine which subsection of the former version of La. R.S. 47:S01 (18)(a) applied to the transactions in dispute in this case during the tax periods covering 1993 and 1994. New Holland argued that the City and Parish incorrectly applied use tax to its tractor and equipment leases with Louisiana Downs, charging that its leases were governed by La. R.S. 47:301(18)(a)(iii), which prohibited the City and Parish from collecting any use tax on these transactions. At the time the use tax was applied in this case, La. R.S. 47:301(18)(a)(iii) provided:

The term “use,” for purposes of sales and use taxes imposed by the state on the use for rental of automobiles which take place on or after January 1, 1991, and imposed on the use for lease or rental of tangible personal property other than automobiles which take place on or after July 1, 1991, shall not include the purchase, the importation, the consumption, the distribution, or the storage of tangible personal property to be leased or rented in an arm’s length transaction as tangible personal property-

The City and Parish disagreed with New Holland, arguing that subsection (iii) only prohibited the state and not political subdivisions of the state from collecting use tax. As political subdivisions of the state, the City and Parish assert that they correctly applied use tax to these lease transactions under La. R.S. 47:301(18)(a)(iv), which did allow the City and Parish to collect use tax on these transactions. At the time the use tax was applied in this case, La. R.S. 47:301(18)(a)(iv) provided:

IsThe term “use,” for purposes of sales and use taxes imposed by the state on the use for rental of automobiles which take place prior to January 1, 1991, and imposed on the use for lease or rental of tangible personal property other than automobiles which take place prior to July 1, 1991, and for purposes of local sales and use taxes levied by political subdivisions, shall include the purchase, the importation, the consumption, the distribution, or the storage of tangible personal property to be leased or rented in an arm’s length transaction as tangible personal property. However, contrary provisions of law notwithstanding, any political subdivision may, by ordinance, adopt the definition of “use” provided in subparagraph (iii) herein for purposes of the imposition of its sales and use tax.

Finally, New Holland asserted that La. R.S. 47:301(19)(b) should apply to its lease transactions with Louisiana Downs, arguing that, if the tractors and equipment had been sold rather than leased to Louisiana Downs, which is a tax exempt entity under La. R.S. 4:168, then the sales transactions would have been tax exempt. La. R.S. 47:301(19)(b) provides:

(19) “Use tax” includes the use, the consumption, the distribution, and the storage as herein defined. No use tax shall be due to or collected by:
(b) Any political subdivision on tangible personal property used, consumed, distributed, or stored for use or consumption in such political subdivision if the sale of such property would have been exempted or excluded from sales tax at the time such property became subject to the taxing jurisdiction of the political subdivision.

If sales transactions with Louisiana Downs are exempt, New Holland argued that, under La. R.S. 47:301(19)(b), lease transactions are also exempt because Louisiana Downs is the ultimate consumer or end user of the tangible personal property at issue.

The trial judge decided this matter based on briefs submitted by both parties. First, the trial judge found that, if subpar-agraphs (iii) and (iv) of La. R.S. 47:301(18)(a) are read together, it is clear that subparagraph (iii) |4applied to state sales and use taxes levied by the State of Louisiana and not to taxes levied by political subdivisions of the State of Louisiana. The trial judge also found that subpara-graph (iv) specifically refers only to “local sales and use taxes levied by political subdivisions.” The trial judge noted that sub-paragraph (iv) does give political subdivisions the option of adopting the definition of “use” of paragraph (iii), but it is doubtful that any political subdivision would exercise such an option because it would shrink its tax base. The trial judge further held that subparagraph (iv) applied to New Holland’s importation and subsequent lease of tractors and equipment to Louisiana Downs and that the City and Parish correctly applied the use tax to these transactions. Lastly, the trial judge found that La. R.S. 47:301(19)(b) did not apply to the lease transactions at issue because a tax debtor can only avail itself of the exemption of the tax exempt entity if it is, in fact, an “agent” of the entity and New Holland was not an agent for Louisiana Downs. As previously stated, the trial judge rendered judgment in favor of the defendants, City and Parish, and against the plaintiff, New Holland. New Holland now appeals.

On appeal, New Holland raises the following assignments of error:

1. The trial court erred in ruling that La. R.S. 47:301(18)(a)(iii) is not applicable to this case;
2. The trial court erred in ruling that La. R.S. 47:301(19) is inapplicable and that it applies only in cases where there is an agency relationship between the tax-exempt entity and the purported tax debtor; and
3. The trial court erred in strictly construing La. R.S. 47:301(19) against appellant, as that statute is merely a definitional (sic) provision and not an exemption.

I r,DISCUSSION

La. R.S. Jf7:801(18)(a)(m) & (iv)

New Holland insists that the City and Parish should have applied the former version of La. R.S. 47:301(18)(a)(iii) to its leases of tractors and other equipment to Louisiana Downs. The City and Parish argue that La. R.S. 47:301(18)(a)(iii) applied only to sales and use taxes levied by the state and that La. R.S. 47:301(18)(a)(iv) actually applied to sales and use taxes levied by political subdivisions of the state. We agree with the City and Parish that the trial judge correctly applied the former version of La. R.S. 47:301(18)(a)(iv) to New Holland’s lease of tractors and equipment to Louisiana Downs.

New Holland’s argument that La. R.S. 47:301(18)(a)(iii) applied to these lease transactions is misguided. A reading of the full text of the former version of La. R.S. 47:301(18)(a)(iii) makes it clear that only the state was prohibited from imposing use taxes on the importation of tangible personal property that is subsequently leased in an arm’s length transaction as tangible personal property. The City’s and Parish’s argument that La. R.S. 47:301(18)(a)(iii) did not apply to use taxes imposed by political subdivisions of the state is further bolstered by the massive amendments made to this statute by the legislature. In 1999, the legislature amended La. R.S. 47:301(18)(a)(iii) to gradually reduce, and then by 2002 to completely prohibit, political subdivisions from collecting use taxes on [ filease transactions of tangible personal property. La. R.S. 47:301(18)(a)(iii) now provides:

The term “use,” for purposes of sales and use taxes imposed by the state on the use for rental of automobiles which take place on or after January 1, 1991, and by political subdivisions on such use on or after July 1, 1996, and state sales and use taxes imposed on the use for lease or rental of tangible personal property other than automobiles which take place on or after July 1, 1991, shall not include the purchase, the importation, the consumption, the distribution, or the storage of tangible personal property to be leased or rented in an arm’s length transaction as tangible personal property. For purposes of the imposition of the tax levied by any political subdivision of the state, for the period beginning July 1, 1999, and ending on June 30, 2000, the term “use” shall not include one-fourth of the cost price of any tangible personal property which is purchased, imported, consumed, distributed, or stored and which is to be leased or rented in an arm’s length transaction in the form of tangible personal property. For the purposes of the imposition of the tax levied by any political subdivision of the state, for the period beginning July 1, 2000, and ending on June 30, 2001, the term “use” shall not include one-half of the cost price of any tangible personal property which is purchased, imported, consumed, distributed, or stored and which is to be leased or rented in an arm’s length transaction in the form of tangible personal property. For the purposes of the imposition of the tax levied by any political subdivision of the state, for the period beginning July 1, 2001, and ending on June 30, 2002, the term “use” shall not include three-fourths of the cost price of any tangible personal property which is purchased, imported, consumed, distributed, or stored and which is to be leased or rented in an arm’s length transaction in the form of tangible personal property. Beginning July 1, 2002, for the purposes of the imposition of the tax levied by any political subdivision of the state, the term “use” shall not include the purchase, the importation, the consumption, the distribution, or the storage of any tangible personal property which is to be leased or rented in an arm’s length transaction in the form of tangible personal property. (Emphasis added).

j7The amendments to the statute clearly indicate that, before the changes were made, political subdivisions could definitely apply use tax to lease transactions of tangible personal property.

In the case sub judice, the only way for the former version of La. R.S. 47:301(18)(a)(iii) to apply to the lease transactions at issue is if the City or the Parish had adopted in their local ordinances the specific definition of “use” in subsection (iii), as allowed by subsection (iv). In examining the City and Parish ordinances, we find that neither the City nor the Parish adopted the specific definition of “use” found in La. R.S. 47:301(18)(a)(iii). Thus, the former version of La. R.S. 47:301(18)(a)(iv) unquestionably applied in the instant case.

As previously stated, the former version of La. R.S. 47:301(18)(a)(iv) provided that, for purposes of local use taxes levied by political subdivisions, the imposition of use taxes shall include the importation of tangible personal property to be leased in an arm’s length transaction as tangible personal property. Subsection (iv) clearly allowed political subdivisions such as the City and Parish to apply use tax to lease transactions of tangible personal property such as tractors and equipment. We find that the City and Parish correctly applied La. R.S. 47:301(18)(a)(iv) to New Holland’s importation and subsequent lease of tractors and other equipment to Louisiana Downs in arm’s length transactions; and, therefore, New Holland’s first assignment of error is without merit.

\f.La. R.S. Jp7:301(19)(b)

New Holland also relies on La. R.S. 47:301(19)(b) to argue that the use tax should not have been applied to its lease of out-of-state tangible personal property to Louisiana Downs. New Holland contends that it is exempt from use tax because Louisiana Downs is exempt from taxation. New Holland argues that, under La. R.S. 47:301(19)(b), the legislature intended to tax the end user or ultimate consumer of leased goods, just as sales tax is imposed only on the ultimate purchaser. According to New Holland, the imposition of the use tax on the end user means that no use tax is imposed when a tax-exempt entity leases goods, rather than purchases them outright. New Holland maintains that Louisiana Downs, which is a tax exempt entity under La. R.S. 4:168, is the end user in the instant case.

The City and Parish assert that New Holland is incorrect in its interpretation of La. R.S. 47:301(19)(b) because the tax assessment is not against Louisiana Downs, it is against New Holland. Even if New Holland had purchased .the tractors outright rather than imported them, the City and Parish assert that a sales tax would have been assessed. We agree.

The key phrase in La. R.S. 47:301(19)(b) is “at the time such property became subject to the taxing jurisdiction of the state.” New Holland’s argument of applying the use tax to the subsequent lease transaction with Louisiana Downs and not at the point when the property was first subjected to the jurisdiction of the state is New Holland’s attempt to remove the taxable transaction one step to avoid the use tax. New Holland’s tractors and equipment became subject to the taxing jurisdiction of the City and |3Parish as soon as the property came to rest in Louisiana. See City of New Orleans v. Baumer Foods, Inc., 532 So.2d 1381 (La.1988), McNamara v. D.H. Holmes Company, Ltd., 505 So.2d 102 (La.App. 4th Cir.1987), writ denied, 506 So.2d 1224 (La.1987). In J & B Publishing Company of Louisiana v. Secretary, Department of Revenue & Taxation, State of Louisiana, 34,105 (La.App.2d Cir.12/15/00), 775 So.2d 1148, we found that:

The use tax was intended to affect items purchased out-of-state for immediate importation and use in this state. Obviously, the purpose of the use tax is to remove the temptation to buy out-of-state to escape the payment of local sales taxes. Accordingly, if something that is purchased out-of-state would be subject to a sales tax if purchased in state, then it is subject to a use tax.

New Holland is not entitled to Louisiana Downs’ tax exemption. In fact, the only way for New Holland to use Louisiana Downs’ tax exemption is if New Holland were the agent for Louisiana Downs. The trial judge in the case sub judice found that New Holland was not Louisiana Downs’ agent and nothing in the record indicates otherwise. In Amberg Trucking, Inc. v. Tarver, 626 So.2d 511 (La.App. 3d Cir.1993), the appellate court held that a tax debtor can only avail itself of the exemption of the tax exempt entity if it is in fact an “agent” of the entity. Moreover, exemptions from taxation are to be strictly construed against the entity claiming the exemption and the agency relationship must be clearly and affirmatively established. Cajun Electric Power Cooperative, Inc. v. McNamara, 452 So.2d 212 (La.App. 1st Cir.1984), unit denied, 458 So.2d 123 (La.1984). New Holland has not clearly and affirmatively established that it is an agent for Louisiana Downs; and, consequently, it is not entitled to use Louisiana Downs’ exemption from taxation. We find that La. |inR.S. 47:301(19)(b) does not apply to the lease transactions in the case sub judice; and, therefore, New Holland’s second and third assignments of error are without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court against Plaintiff, New Holland North America, Inc., is affirmed. Costs of this appeal are assessed to Plaintiff, New Holland North America, Inc.

AFFIRMED.

      . The entire section of La. R.S. 47:301(18)(a) has since been amended.

      . The amendments, however, do not affect the use taxes in this case because the amendments were made after the City and Parish assessment of the use taxes that are in dispute herein,

      . Recall that La. R.S. 47:301 (18)(a)(iv) gave political subdivisions the option of adopting the definition of "use” provided in La. R.S. 47:301(18)(a)(iii). In 1999, the legislature also amended La. R.S. 47:30 l(18)(a)(iv), removing this option and, in effect, making the adoption of the definition of "use” found in subsection (iii) mandatory for political subdivisions.


author: h STEVEN R. PLOTKIN, Judge.

text:
    STATE of Louisiana v. Joseph CLARK.
    No. 2002-KA-0956.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Harry F. Connick, District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER).
   h STEVEN R. PLOTKIN, Judge.

PROCEDURAL HISTORY

Defendant Joseph Clark was charged by bill of information on April 10, 2001, with one count of simple burglary and one count of possession of cocaine in violation of La. R.S. 14:62 and 14:967(0(2). Defendant pleaded not guilty at his April 17, 2001, arraignment. A motion hearing was held on June 14, 2001, and continued on June 28, 2001. A trial was held on August 20, 2001, but the jury was unable to reach a verdict and a mistrial was declared. On September 25, 2001, the defendant was retried and a six-person jury found the defendant guilty as charged. On October 12, 2001, the defendant was sentenced to six years for the simple burglary count and thirty months for the possession count. On that same date, the state filed a multiple bill alleging the defendant to be a second felony offender. With defense counsel present the defendant pled guilty to the multiple bill. The trial court vacated its previous sentence as to the first degree robbery count and re-sentenced the defendant to six years. On October 16, 2001, defense counsel filed a written motion for appeal, which the trial court granted.

\ STATEMENT OF FACTS

On September 13, 2000, at approximately 1:50 a.m. Officers Preston Bosch and Krekel Eckland of the New Orleans Police Department Second District Task Force were on proactive patrol in an area that had experienced several burglaries and car thefts. As the officers were driving they observed the defendant standing in the middle of the intersection at Birch and Audubon Streets with a bike between his legs and four or five large garbage bags around him. The officers decided to investigate further because of the recent burglaries in the area. The officers drove their vehicle toward the defendant and turned on the vehicle spotlight. When the defendant saw the officers he dropped the bike and his bags and ran. The officers gave chase and caught the defendant about one block away from the intersection. During the chase Officer Bosch radioed for back up, and when the officers returned to the scene the back-up officers had arrived.

Officer Bosch testified that his partner remained with the defendant while he and the other officers canvassed the area to determine if any of the homes or vehicles in the area had been burglarized. Officer Bosch further testified that Detective Jeffrey Walls found a vehicle, a couple houses away from where the defendant was initially seen, with the driver side door ajar. The officers knocked on the door of the residence and questioned Michael Char-bonnet about the vehicle in his driveway. Mr. Charbonnet told the officers he usually left the top down and the doors unlocked to avoid having his convertible top slashed. Mr. Charbonnet opened the trunk of the vehicle and determined that several items were missing. Mr. Charbon-net also found that a rubber portion behind the backseat had been cut and that the items missing must have been taken through the hole because the trunk remained locked. The officer took Mr. Charbonnet to the scene at the intersection and tasked him to look through the items found in the garbage bags to determine if any of them belonged to him. Mr. Charbonnet found jumper cables, a toolbox, and a comforter that belonged to him. The defendant was then read his rights and arrested for the burglary of Mr. Char-bonnet’s vehicle. Officer Eekland conducted a search incident to arrest and found a small candy tin in the defendant’s right pants pocket. Officer Eekland testified the defendant became nervous when he found the container so he opened it and found it contained a white powder substance that appeared to be cocaine and a piece of wire mesh. The defendant was then arrested for possession of cocaine.

ERRORS PATENT

There are no errors patent.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

The defendant complains the trial court erred in denying his motion to suppress because the police lacked the reasonable suspicion necessary to conduct an investigatory stop.

The trial court is vested with great discretion when ruling on a motion to suppress. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914.

La. C. Cr. P. article 215.1 provides in part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and demand of him his name, address, and an explanation of his actions.

This court in State v. Anderson, 96-0810 (La.App. 4 Cir. 5/21/97), 696 So.2d 105, noted:

|4A police officer has the right to stop a person and investigate conduct when he has a reasonable suspicion that the person is, has been, or is about to be engaged in criminal conduct. Reasonable suspicion for an investigatory stop is something less than probable cause; and, it must be determined under the facts of each case whether the officer had sufficient articulable knowledge of particular facts and circumstances to justify an infringement upon an individual’s right to be free from governmental interference. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. An investigative stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity or else there must be reasonable grounds to believe that the person is wanted for past criminal conduct. (Citations omitted)

Id. at p. 2, 696 So.2d at 106 (citations omitted).

Though law enforcement officers are given the discretion to stop a person and investigate suspicious activity, it is juxtaposed against an individual’s rights under the Fourth Amendment of the United States Constitution and the Louisiana Constitution Article 1, Section 5, which provide in part:

Every person shall be secure in his person, property, communications, houses papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose for the search.

Id.

In State v. Tucker, 626 So.2d 707 (La.1993), the Louisiana Supreme Court noted in an effort to discourage police misconduct in violation of this standard, evidence recovered as a result of an unconstitutional search or seizure is inadmissible. Id. at 710. Thus, evidence abandoned by a citizen and recovered by the police as a direct result of an unconstitutional seizure | ¡¿nay not be used in a resulting prosecution against the citizen. Id. If, however, a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizen’s right to be free from governmental interference, then such property may be lawfully seized and used against the citizen in a resulting prosecution. Id. In this latter case, there is no expectation of privacy and thus no violation of a person’s custodial rights. Id.

“It is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the right to be left alone is violated, thereby rendering unlawful any resultant seizure of abandoned property.” Tucker, 626 So.2d at 710-11 (citing State v. Belton, 441 So.2d 1195, 1199). In Tucker, the Court gave factors to determine whether an actual stop of an individual is imminent: (1) the proximity of the police in relation to the defendant at the outset of the encounter; (2) whether the individual has been surrounded by the police; (3) whether the police approached the individual with their weapons drawn; (4) whether the police and/or the individual are on foot or in motorized vehicles during the encounter; (5) the location and characteristics of the area where the encounter takes place; and (6) the number of police officers involved in the encounter. Id. at 712-13.

In the instant case, testimony at the motion hearing revealed that the officers approached the intersection where the defendant was standing in the middle of the street. When the defendant saw the officers he ran abandoning all of the items with him at the time. The abandonment, along with the defendant’s flight, gave the officers reasonable suspicion, sufficient ar-ticulable knowledge of particular facts and circumstances to justify detaining the defendant or an infringement upon the defendant’s right to bejjjfree from governmental interference. State v. Anderson, 96-0810 at p. 2, 696 So.2d at 106; see also State v. Benjamin, 97-3065 (La.12/1/98) 722 So.2d 988. Once the officers found Mr. Charbonnet and determined that the defendant had stolen from him, the officers then had probable cause to arrest the defendant. Gibson v. State, 99-1730, p. 7 (La.4/11/00), 758 So.2d 782, 788. This assignment of error is without merit.

CONCLUSION

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

AFFIRMED.


author: |WILLIAMS, J.

text:
    Gordon McQUILLEN and Geneva McQuillen, Plaintiff-Appellant, v. SHELTER INSURANCE COMPANIES, Defendant-Appellee.
    No. 36,634-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2002.
    Frank B. Tugwell, Bastrop, for Appellant.
    Charles W. Herold, III, Monroe, for Ap-pellee.

      Before WILLIAMS, KOSTELKA and HARRISON (Pro Tempore), JJ.
   |WILLIAMS, J.

The issue presented by this appeal is whether a claim under a fire insurance policy has prescribed. The trial court granted an exception of prescription filed by defendant, Shelter Insurance Companies (“Shelter”), with respect to a claim for additional living expenses made by plaintiffs, Gordon and Geneva McQuillen (“McQuillens”). For the reasons set forth below, we affirm.

FACTS

The facts of this case are mostly undisputed. The McQuillens’ home burned on January 16, 2000. At that time, the home was covered by a fire insurance policy issued by Shelter. The McQuillens submitted a proof of loss on January 27, 2000, and on February 21, 2000, Shelter issued a draft to the McQuillens in the amount of $43,090. The draft indicated that it was in payment of “personal property, add’l living expense, other structures, & guns.” An additional notation on the draft indicated that $1,200 of the payment was for additional living expenses, while $1,000 was for other structures.

On August 9, 2000, an attorney representing the McQuillens wrote a letter to Shelter stating in pertinent part:

From my conversation with Mr. McQuillen, I understand that his home burned and that although Mr. McQuil-len’s policy provides for “Additional Living Expense” of $12,000.00, that Shelter has refused to further pay for the McQuillens’ living expenses beyond three months or $1,200.00 on the grounds that he could have had a new home built within that time. This refusal has been made despite the fact that Mr. McQuillen experienced serious health problems during this period of time.
I also understand from Mr. McQuillen that despite the fact that Mr. McQuillen obtained insurance for the beauty shop located on the premises with limits of $5,000.00, Shelter has | ¿refused to pay for the destruction of the shop and for the equipment and materials located therein.
Mr. McQuillen feels and I concur that Shelter in so refusing has breached its contract with the McQuillen’s and unless satisfactory redress is made within six weeks time, I shall advise the McQuil-lens to file suit for ordinary and treble damages for the insurance company’s breach of contract.

On September 8, 2000, Will Burgess (“Burgess”), a claims representative for Shelter, wrote a letter to the McQuillens’ attorney. Although a copy of the letter is not included in the record, it apparently either was or should have been attached to the plaintiffs’ memorandum in opposition to the exception of prescription. In any event, the attorneys argued about the meaning of the letter at the hearing on the exception of prescription, and Shelter does not assert that the letter was not sent by Burgess. The letter from Burgess included a draft for $5,000 in payment for the McQuillens’ beauty shop and indicated that Burgess had unsuccessfully attempted to contact the McQuillens’ attorney regarding the payment. Burgess then requested the McQuillens’ attorney to call him “so that we can discuss the matter.” At the beginning of the next paragraph of the letter, Burgess also asked the McQuillens’ attorney to call him “to discuss any other matters related to the claim.” The record does not reflect 13any further communication between the parties prior to the filing of the McQuillens’ petition on October 2, 2001.

The McQuillens’ petition against Shelter asserted a breach of contract, and while mentioning that Shelter had paid $5,000 in response to their attorney’s demand concerning the loss of the beauty shop and beauty shop equipment, the petition did not mention either the $1,200 for additional living expenses already paid by Shelter, or Burgess’ letter of September 8, 2000. Instead, the petition asserted that for the period of time required to rebuild the McQuillens’ home, they had been forced to use a rental home owned by Mrs. McQuil-len that otherwise would have been a source of income for them. The McQuil-lens simply asserted that Shelter was indebted to them for the increase in their living expenses occasioned by the loss of the covered property, as'well as for statutory penalties, attorney fees and costs.

After filing a general denial in February 2002, Shelter filed its peremptory exception of prescription in March 2002. Shelter attached to its memorandum in support of the peremptory exception a copy of its attorney’s August 2000 letter, a copy of the insurance policy, a copy of the McQuillens’ proof of loss and a copy of the draft issued by Shelter to the McQuillens. In response, the McQuillens filed a memorandum in opposition which indicated that attached to it as Exhibit A was the claim | ¿representative’s letter. However, the record on appeal does not include the Burgess letter as an attachment to the memorandum. Essentially, the McQuillens argued that because Shelter not only failed to notify the McQuillens in writing that it would not pay the additional living expenses, but also projected “an attitude of negotiation as per Will Burgess’s letter of September 8, 2000,” Shelter extended the period for filing suit.

At the hearing on the exception of prescription, Shelter’s attorney argued that Shelter had paid $1,200 on February 21, 2000, for additional living expenses anticipated to cover the three months following the fire. Because the McQuillens’ attorney’s letter of August 9, 2000 indicated that Shelter had refused to pay for further living expenses, Shelter argued that at the very latest, prescription began to run on August 9, 2000. The language of the fire insurance policy required suit to be filed within one year after the loss or damage occurred, but the policy also stated that this period was extended by the number of days between the date a proof of loss was submitted and the date that the claims were denied in whole or in part. Thus, Shelter argued that because suit was not filed until October 2, 2001, more than a year after the August 9, 2000 letter, prescription had run.

The McQuillens’ attorney argued that Shelter had admitted that it owed additional money for the beauty shop and had paid $5,000.00 on September 8, 2000 in response to counsel’s demand letter. The Burgess letter that accompanied the payment requested counsel to call Burgess to discuss any other matters related to the claim. The McQuillens’ counsel contends this was not a refusal to pay as contemplated by the policy. He | (¡asserts that at the time they received the Burgess letter, they were still waiting to find out how much was owed for additional living expenses because the house had not been rebuilt.

Shelter’s counsel then responded that the Burgess letter “doesn’t say anything about we’re willing to pay some additional living expense.” Furthermore, counsel for Shelter argued that under the provisions of LSA-R.S. 22:651, an insurer’s investigation of any loss or claim under any policy or participation in negotiations concerning a possible settlement of any such loss or claims shall not constitute a waiver of any policy provision or any defense of the insurer. Thus, counsel argued that even if the Burgess letter had specifically used the word “negotiate,” prescription would not have been interrupted. At the conclusion of the hearing, the trial court granted the exception of prescription. The plaintiffs appeal.

DISCUSSION

The provisions of LSA-R.S. 22:691 require fire insurance contracts in Louisiana to conform as to all provisions, stipulations, agreements and conditions, with the Louisiana standard fire insurance policy as set forth in Subsection F of the statute. With respect to the requirements in case a loss occurs, the standard provisions require, in pertinent part, that within 60 days after a loss, unless the time is extended by the insurer, the insured shall render to the insurer a proof of loss, and the amount of loss for which the insurer may be liable shall be payable 60 days after the proof of loss is submitted and ascertainment is made. No suit or action on the policy for the recovery of a claim is sustainable unless all the requirements of the policy 1 fihave been complied with, and “unless commenced within twelve months next after the inception of the loss.”

The provisions of the Shelter policy at issue follow the standard fire policy provisions by stating that Shelter may not be sued unless there is full compliance with all the terms of the policy and that suit must be brought within one year after the loss or damage occurs. However, the Shelter policy extends the one-year period by the number of days between the date a proof of loss is submitted and the date the claims are denied in whole or in part. In the instant case, the loss occurred on January 16, 2000, but suit was not brought until October 2, 2001. As previously noted, a proof of loss was submitted on January 27, 2000, and the McQuillens’ attorney’s letter of August 9, 2000, indicates that Shelter had refused to pay additional living expenses beyond the $1,200 already paid. While the letter does not give the exact date of Shelter’s refusal, the refusal obviously occurred no later than the date of the letter itself. Thus, the one-year period within which to file suit should have begun running at least after August 9, 2000. As a result, without some additional action on the part of the insurer that could have affected the running of prescription, the McQuillens’ action was prescribed at the time they filed their petition in October 2001.

Generally, when a petition shows on its face that prescription has run, the burden is on the plaintiff to prove the interruption of prescriptive period. Frederick v. AETNA Life and Casualty Insurance Co., 467 So.2d 600 (La.App. 3d Cir.1985). In the instant case, the McQuillens had the burden of |7proving prescription had not run because their petition showed on its face that the claim had prescribed.

In Greeson v. Acceptance Insurance Co., 32,159 (La.App.2d Cir.8/18/99), 738 So.2d 1201, we reviewed the sustaining of a peremptory exception of prescription in a case in which the plaintiff sought to recover under a fire insurance policy for a fire that destroyed his home. In addressing the question of whether the insurer had waived the policy requirement that suit be filed within one year after the loss, we stated:

An insurer’s conduct can constitute an unintended waiver of its right to claim the benefit of a one-year prescriptive period for filing suit.... However, an insurer’s investigation of any loss or claim under any policy or participation in negotiations concerning a possible settlement of any such loss or claim shall not constitute a waiver of any policy provision or of any defense of the insurer. LSA-R.S. 22:651.
Unless the insurer in some manner leads the insured to reasonably believe the time limitation has been waived while the claim is under consideration or in some other way acts so as to induce the insured to withhold suit, he must file his action within the prescribed period even if the claim is still pending.... The crucial determination is whether the overall actions of the insurer’s claims adjuster, during the year after the loss, led plaintiff to reasonably believe the insurer would not require compliance with the policy provision that suit must be filed within one year.

Id. at 1204 (Citations omitted).

Under the facts of the instant case, at issue is whether the Burgess letter of September 8, 2000, in which Shelter’s claims representative requested the McQuillens’ attorney to contact him to discuss matters related to their claim, can be said to have led the McQuillens to reasonably believe that the one-year time limitation was waived. We conclude that it cannot.

|sAs we indicated in Greeson, supra, the provisions of LSA-R.S. 22:651 specifically state that investigating any loss or claim under any policy, or engaging in negotiations looking toward a possible settlement of any such loss or claim, shall not be deemed to constitute a waiver of any provision of a policy or of any defense of an insurer thereunder. Here, the Burgess letter, at best, might be construed as an indication of a willingness to negotiate or further investigate the McQuillens’ claims, but the letter cannot reasonably be construed as a waiver of the “one-year time limitation” provision of the policy, or an acknowledgment sufficient to interrupt prescription.

In Frederick, supra, homeowners brought suit against their insurer for damages allegedly resulting from nearby seismic operations. The seismic operations took place on February 11 or 12,1981. On February 21, 1981, the plaintiffs verbally complained to the oil company conducting the operations about the damages, and the plaintiffs also made a claim to their insurance company. On November 4, 1981, the claims adjuster sent a letter to the plaintiffs’ attorney stating that the adjuster had received their attorney’s letter of October 29, 1981, and that the adjuster believed they might be able to finalize Mr. Frederick’s claim “with the receipt of a notarized statement giving the details of his loss.” The letter also requested “times and dates” so that the insurer could proceed against the oil company. The letter closed by stating that the adjuster looked forward to hearing from plaintiffs’ attorney. Following the letter, there was no evidence in the record that the plaintiffs took any steps toward fulfilling the request for a | aproof of loss, and the next action taken by plaintiffs was to file suit on April 16, 1982.

The plaintiffs in Frederick contended that the adjuster’s letter to their attorney was an acknowledgment of the debt sufficient to interrupt the running of prescription. However, the appellate court held that while an acknowledgment need not be in the form of a compromise agreement and, for that matter, did not need to be in particular form, the acknowledgment must contain a clear intent to interrupt the running of prescription. The court then stated:

Due to the fact that candid and good faith settlement negotiations should be encouraged as a matter of public policy ..., we find that defendant’s letter of November 9, 1981, is merely recognition of plaintiffs’ claim which may be finalized upon proof of the damage incurred. The letter was merely one step in the negotiation process and did not acknowledge any debt toward the plaintiffs.

We agree with the reasoning of the court in Frederick, and when that reasoning is applied to the instant case, we conclude that the Burgess letter did not acknowledge any debt owed by Shelter to the McQuillens and could have not reasonably led them to believe that Shelter was waiving the time limitation in its policy. Thus, prescription was not interrupted.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the defendant’s exception of prescription is hereby affirmed. All costs of this appeal are assessed to the plaintiffs-appellants, Gordon McQuillen and Geneva McQuillen.

AFFIRMED.

      . Although Shelter argues on appeal that the September 8, 2000 letter should be disregarded because only matters in evidence are to be considered by a court of appeal, we note that no evidence actually was introduced at the hearing on the exception of prescription by either side, and neither side raised objections or issues concerning what facts properly were before the court for consideration. Instead both sides made their respective arguments based on the same set of facts, and we will use those facts for purposes of deciding the issue of prescription now before us.

      . Although the McQuillens’ appellate brief indicates that their attorney spoke with Burgess on at least two occasions between September 8, 2000 and the early part of the third quarter of 2002, and that Burgess had asked the McQuillens’ attorney about the amount the McQuillens were asking for additional living expenses, this information is not found anywhere in the record and will not be considered by this Court.


author: |,MICHAEL E. KIRBY, Judge.

text:
    Jim Walter HOMES (Lumbermen’s Underwriting Alliance) v. Joseph LONG.
    No. 2002-CA-0950.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2002.

      Charles Martin Kreamer, Sr., Allen & Gooch, Lafayette, LA, for Plaintiff/Appellant.
    Frank A. Bruno, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER, Judge MICHAEL E. KIRBY).
   |,MICHAEL E. KIRBY, Judge.

Plaintiff/Employer Jim Walter Homes appeals a judgment of the Workers’ Compensation Court maintaining defendant/claimant Joseph Long’s exception of prematurity, dismissing plaintiff/employer’s Form LDOL-WC-1008 and awarding attorney’s fees of $750.00 to defendant/claimant’s attorney for defense of a frivolous claim. Jim Walter Homes is Joseph Long’s former employer and is insured by Lumbermen’s Underwriting Alliance. Jim Walter Homes and Lumbermen’s Underwriting Alliance will hereinafter be collectively referred to as “employer” and the defendant will hereinafter be referred to as “claimant.” The claimant answered the appeal, asking for additional attorney’s fees for defending against the employer’s appeal, which he alleges is frivolous.

On August 27, 2001, the employer filed a disputed claim for compensation (Form 1008) against the claimant. Under the section entitled “The Bona-Fide Dispute,” the employer stated, “Employer seeks a declaratory judgment that the claimant is capable of performing employment such that he is no longer entitled to SEB benefits. Alternatively, if the employee is entitled to continued indemnity | ^benefits, employer seeks an offset for the claimant’s receipt of federal retirement benefits from Social Security. In the further alternative, if the employee is found to be permanently and totally disabled, employer seeks an offset for his receipt of federal disability benefits.”

The claimant filed an exception of prematurity, arguing that the employer’s claim for declaratory judgment is premature and does not allege a specific dispute as required under La. R.S. 23:1314. Claimant filed a memorandum in support of his exception, and the employer filed a memorandum in opposition to the exception.

The Workers’ Compensation Court rendered its ruling on February 14, 2002, maintaining the claimant’s exception of prematurity, dismissing the employer’s Form 1008 and awarding claimant’s attorney fees of $750.00 for defense of a frivolous claim. The employer appealed. The claimant answered the appeal, requesting an award for additional attorney’s fees for frivolous appeal.

On appeal, the employer argues that the Workers’ Compensation Court erred in dismissing its Form 1008 because La. R.S. 23:1314 does not apply to litigation initiated by an employer under La. R.S. 23:1310.3. The employer also argues that the court erred in sanctioning the employer for filing the 1008 form because the filing was proper, the claimant did not ask for sanctions and no hearing was conducted prior to the imposition of sanctions.

| ¡¡Initially, we note that reasons for judgment are not controlling and form no part of trial court judgments from which appeals are taken. Kaufman v. Adrian’s Tree Service, Inc., 2000-2381 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102.

The employer’s argument that the Workers’ Compensation Court erred in dismissing its Form 1008 because La. R.S. 23:1314 does not apply to employer-initiated litigation is without merit. This Court has already held that La. R.S. 23:1314 applies to LDOL-WC-1008 forms filed by employers. Michaels Store, Inc. v. Hart, 2001-0655 (La.App. 4 Cir. 3/20/02), 815 So.2d 201, citing and attaching as an appendix, Labor Ready Inc. v. Mark Lorick, 2000-1559 (La.App. 4 Cir. 9/6/00), writ denied, 2000-2801 (La.12/8/00), 776 So.2d 461. The Workers’ Compensation Court did not err in dismissing the employer’s Form 1008 as premature because it does not contain any of the four allegations required by La. R.S. 23:1314. Absent compliance with that statute, all of the employer’s claims in the Form 1008 were premature, including the claims that claimant is no longer entitled to SEB benefits and that the employer is entitled to offsets for federal retirement and disability benefits.

The employer in this case argues, as did the employer in the Michaels Store, Inc. case, that the only way an employer can make one of the allegations required by La. R.S. 23:1314 is if it fails to meet its obligations under the workers’ compensation laws. The employer suggests that requiring the provisions of La. R.S. 23:1314 to apply to an employer’s claim under La. R.S. 23:1310.3 leads to absurd consequences. While we recognize the anomaly created by the current Rversions of La. R.S. 23:1310.3 and 23:1314 as they apply to employers, we find that this is a matter for the Legislature to correct, and not the courts.

The employer also argues that the Workers’ Compensation Court erred in awarding sanctions to claimant’s counsel. The court ordered the employer to pay claimant’s counsel attorney’s fees in the amount of $750.00 for filing a frivolous claim. The employer argues that this award was unwarranted because its filing of the Form 1008 was proper, the claimant made no request for sanctions and the court awarded sanctions without first holding a hearing.

As stated above, we find no error in the Workers’ Compensation Court’s dismissal of the Form 1008 filed by the employer. Furthermore, even though the claimant made no request for sanctions, La. C.C.P. art. 863(D) allows a court to award sanctions on its own motion, and it obviously did so. However, La. C.C.P. art. 863(E) states 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 issue of imposition of the sanction.” Because no hearing was held as required by this statute, we must vacate the award of sanctions and remand this matter to the Workers’ Compensation Court for a hearing on the issue of sanctions.

Regarding the claimant’s answer to the appeal, we find no merit in his argument that the employer’s appeal is frivolous.

For the reasons stated above, the portion of the judgment of the Workers’ Compensation Court maintaining the claimant’s exception of prematurity and |Kdismissing the employer’s Form 1008 is affirmed. The award of sanctions is vacated and this matter is remanded to the Workers’ Compensation Court for a hearing on the issue of sanctions.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.