author: I /THIBODEAUX, Judge.

text:
    STATE of Louisiana v. Thomas J. JOHNSON.
    No. 02-1212.
    Court of Appeal of Louisiana, Third Circuit.
    March 12, 2003.
    David W. Burton, District Attorney, DeRidder, LA, for State of Louisiana.
    Michael David Singletary, Opelousas, LA, for Ranger Insurance Company.
    Court composed of NED E. DOUCET, JR., C.J., ULYSSES GENE THIBODEAUX, and ELIZABETH A. PICKETT, Judges.
   I /THIBODEAUX, Judge.

Appellant, Ranger Insurance Company (“Ranger”), appeals the judgment of the trial court signed April 19, 2002, dismissing Ranger’s Petition for Nullity of Judgment of Bond Forfeiture and Motion for Discharge and Release of Surety. Prior to Ranger filing its Petition, a bench warrant was issued and bond forfeiture ordered against the defendant, Thomas J. Johnson, for failure to appear in court for sentencing. Ranger sought to annul the trial court’s judgment arguing that its obligation, as surety, was extinguished by operation of law on October 17, 1997, upon the conviction of the defendant and before the judgment of bond forfeiture was ordered. Ranger asserts that the judgment of bond forfeiture is absolutely null. We disagree. We find that Ranger failed to allege grounds which would permit an action for nullity pursuant to Louisiana Code of Civil Procedure articles 2002 and 2004. Further, Ranger’s cause of action was extinguished for failure to assert the action within the one-year peremptive period required under this statute. As a result, we find that Ranger’s cause of action no longer exists.

I.

ISSUES

Issues of Ranger Insurance Company as Appellant

Appellant sets forth the following issues for our review:

1) whether the trial court erred in failing to render a judgment of bond forfeiture on January 16, 1998, January 20, 1998, February 25, 1998, or April 7, 1998?

2) whether the trial court erred when it failed to recognize that the requirements of La.R.S. 15:85 were not followed on January 16, 1998, January 20, U1998, February 25, 1998 or April 7, 1998, releasing the surety from all obligations under the bond?

3) whether the trial court erred in rendering a judgment of bond forfeiture on February 11, 1999, when the surety had been released from all obligations under the bond?

4) whether the trial court erred in denying appellant’s Petition for Nullity of Judgment and Motion for Discharge and Release of Surety?

We find it unnecessary to address the above issues. We recognize on our own motion an exception of no cause of action under La.Code Civ.P. art. 927 and dismiss this action based on peremption.

Issues of State of Louisiana as Appellee

Whether Mr. Johnson received timely notice of judgment following the rendition and signing of the judgment of bond forfeiture on February 11, 1999? If so, the State urges three peremptory exceptions of no cause of action, liberative prescription, and res judicata, objecting to Ranger’s suit and the filing of its petition.

II.

FACTS

Thomas J. Johnson was arrested in Beauregard Parish for violation of La.R.S. 40:967(A)(1), possession with intent to distribute methamphetamine. On February 13, 1997, Mr. Johnson bonded out of the Beauregard Parish jail, executing a criminal bail bond, with appellant, Ranger, as surety. On October 17, 1997, Johnson pled guilty to the charge, and sentencing was deferred to a later date. On December 8,1997, the trial judge sua sponte filed an order setting the sentencing date for December 19,1997.

|4On December 19, 1997, defense counsel filed a motion to continue the sentencing hearing for January 16, 1998. However, notice was not served on Mr. Johnson or Ranger. Further, sentencing was refixed for January 20, 1998. Again, no notice was given to the defendant. Failure to provide notice to Mr. Johnson occurred on several occasions thereafter. As a result, the State chose not to seek bond forfeiture at any of the hearings in which the defendant or its surety failed to receive notice.

On February 11, 1999, Mr. Johnson failed to appear for sentencing, and a bench warrant was issued for his arrest by the trial court. Additionally, the State sought a judgment of bond forfeiture against the defendant and his surety. Evidence was provided that Mr. Johnson had received proper notice of this sentencing hearing; however, the defendant failed to appear. Notice of the judgment of bond forfeiture issued on this date was served on the defendant and his surety.

On February 19, 2002, Ranger filed a petition for nullity of the bond forfeiture. Ranger argued that its obligation as surety was extinguished when the defendant was convicted. On April 3, 2002, the trial court denied appellant’s petition for nullity, and the State’s peremptory exceptions were pretermitted and not decided on that date.

Ranger now appeals the judgment of the trial court rendered on April 3, 2002, and signed as final judgment on April 19, 2002.

III.

LAW AND DISCUSSION

The applicable statute for bond forfeiture proceedings is La.R.S. 15:85:

All bonds taken to secure the appearance of any person before any court, executed in the state of Louisiana shall be forfeited and collected as follows:
ls(l) Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
(2) Signing of the judgment of bond forfeiture. Following the defendant’s failure to appear, the court shall sign a written judgment of bond forfeiture.
(3) Notice of judgment.
(a) After entering the fact of the signing of the judgment of bond forfeiture in the court minutes, the clerk of court shall promptly mail notice of the signing of the judgment of bond forfeiture.
The nullity of bond forfeiture judgments is regulated by La. C.C.P. arts. 2001, et seq. La.R.S. 15:85(9). Article 2002 delineates the exclusive grounds for the absolute nullity of final judgments. [Ranger] has not alleged, and the record does not show, that any of these exclusive formal grounds is present. Thus the claim can only be one hof relative nullity, La. C.C.P. art.2004. Under this article a final judgment may be annulled when “obtained by fraud or ill practices.” Ill practice is not limited to cases of actual fraud or wrongdoing, but is broadly defined to encompass all situations in which a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right. A judgment will be annulled for ill practices only when the circumstances under which it was rendered show the deprivation of legal rights of the litigant who seeks relief, and when enforcement of the judgment would be unconscionable and inequitable.

(Citations omitted). Bankers Ins. Co. v. State, 32,460, p. 5 (La.App. 2 Cir. 10/27/99); 743 So.2d 870, 873.

Article 2004 requires that an action for nullity based on fraud or ill practices is subject to one-year peremption, as designated in the caption to the article. “[T]he general rule is that if the statute creating a cause of action also provides the time period for exercise of the right created, the time period is peremptive.” Davis v. Sewerage and Water Bd. of New Orleans, 469 So.2d 1144, 1146 (La.App. 4 Cir.1985).

We find that the appellant’s petition for nullity was filed long after the one-year peremptive period.

The Louisiana Civil Code defines per-emption as a “period of time fixed by law for the existence of a right.” La. C.C. art. 3458. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. [Pjeremption need not be pleaded and may befysupplied by a court at any time. La. C.C. art. 3460. Most significantly, however, peremption may not be renounced, interrupted, or suspended. La. C.C. art. 3461 ... [Pjeremption [has the effect of) destroyfingj the right it-selfi.j

State Through Div. of Admin. v. McInnis Bros. Const., 97-0742, p. 2 (La.10/21/97); 701 So.2d 937, 939.

The prescriptive period began on the date in which the notice of bond forfeiture judgment was mailed to the defendant and his surety. The bond forfeiture judgment was signed on February 11, 1999, and mailed to Mr. Johnson and Ranger on February 18, 1999. Appellant did not file his petition for nullity until February 19, 2002, almost three years to the date the bond forfeiture judgment was ordered. As a result, the appellant’s action for nullity was perempted, and its cause of action destroyed due to peremption.

Further, this court finds that the appellant faded to allege fraud or ill practice in its petition pursuant to Article 2004. Louisiana Code of Civil Procedure article 1005 requires that an allegation of fraud be pled with particularity. The record does not indicate that this requirement was met. Also, there is no evidence that the judgment was obtained through ill practices. The appellant has not asserted in its petition that procedurally the judgment was “obtained [to] [deprive] [Ranger] of its legal rights and ... enforcing it would be unconscionable and inequitable,” Bankers, 743 So.2d at 873. For the above reasons, Ranger cannot assert an action for nullity when its claim was perempted. Additionally, Ranger’s petition lacks the formal grounds for nullity as provided in Articles 2002 and 2004.

State’s Peremptory Exceptions

The State urges three peremptory exceptions of no cause of action, prescription, and res judicata to Ranger’s petition and suit. The State argues that |sRanger has no cause of action, alleging neither a vice of form nor a vice of substance in its petition for nullity. Further, the State asserts that Ranger’s claim has prescribed because the petition was filed beyond the one-year peremptive period.

We agree. Accordingly, we grant the State’s exceptions of no cause of action and prescription.

As stated earlier, none of the grounds for nullity under Articles 2002 and 2004 exists in Ranger’s petition. Proper evidence was entered into the trial record that both Mr. Johnson and Ranger were served with notice of the February 11, 1999 hearing though Mr. Johnson failed to appear, and bond forfeiture was properly ordered. Additionally, Ranger fails to allege that the trial court judgment was obtained through fraudulent or ill practices. Most important, appellant’s action for nullity is prescribed by the liberative prescription period of one year set forth in Article 2004. Thus, the State’s exceptions of no cause of action and liberative prescription are granted.

Additionally, the State asserts that the doctrine of res judicata is applicable in this case. According to the State, a final judgment was rendered on the petition for nullity. On February 11, 1999, the trial court issued an order of bond forfeiture which was mailed to Mr. Johnson and Ranger on February 18, 1999. Ranger failed to assert any defenses or actions for nullity within 60 days from the mailing of the notice of the signing of judgment as required under La.R.S. 15:85(5) and (9).

(5) Summary Proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture.
|fl(9) Nullity Actions. Nullity actions pursuant to Code of Civil Procedure Art.2001 et seq. not filed within the sixty days provided for filing summary proceedings shall be brought by the use of ordinary civil proceedings.

Appellant had sixty days from February 18, 1999 to file a summary proceeding and raise the defenses set forth in the petition for nullity, yet failed to do so. Thereafter, Ranger’s only alternative is to raise the action for nullity in an ordinary civil proceeding pursuant to La.R.S. 15:85. Appellant also had (as defenses) seven days from the mailing of the notice of the signing of judgment to request a motion for new trial and sixty days after to file a devolutive appeal; however, Ranger failed to do so. For these reasons, the judgment of bond forfeiture rendered on February 11, 1999, became a final judgment and the exception of res judicata is granted.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. We reach the same conclusion as the trial court, albeit on different grounds. We grant the State of Louisiana’s exceptions of no cause of action, prescription, and res judicata. Costs of this appeal are taxed against the appellant, Ranger Insurance Company.

AFFIRMED.

      . Art.2002. Annulment for vices of form; time for action.
      A. A final judgment shall be annulled if it is rendered:
      (1) Against an incompetent person not represented as required by law.
      (2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
      (3)By a court which does not have jurisdiction over the subject matter of the suit. B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.

      . Ranger may argue that the State failed to notify the defendant on several occasions the date in which he must appear for sentencing; however, notice was given to Mr. Johnson and Ranger to appear for the February 11, 1999 hearing. This notice was critical since this was the hearing in which the bond forfeiture was issued. Ranger cannot assert under Article 2002(2) of the Louisiana Code of Civil Procedure that defendant was not properly served notice of this hearing.

      . Art.2004. Annulment for vices of substance; peremption of action
      A. A final judgment obtained by fraud or ill practices may be annulled.
      B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practice.
      C. The court may award reasonable attorney fees incurred by the prevailing party in action to annul a judgment on these grounds.


source: Caselaw Access Project

author: I THIBODEAUX, Judge.

license: Public Domain

text:
    Roger CAVANESS, Individually and d/b/a Cavaness Broadcasting, Inc., v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Datacom, a Rig Telephones, Inc. Company.
    No. 02-1184.
    Court of Appeal of Louisiana, Third Circuit.
    March 19, 2003.

      Dennis Lee Doise, Judith R. Kennedy, Camille Bienvenu Poche, Perret Doise, Lafayette, LA, for Defendant/Appellee — A Rig Telephones, Inc., d/b/a DATACOM.
    Sylvia M. Fordice, Lafayette, LA, for Defendant/Appellee — State of La., DOTD.
    Al M. Thompson, Jr., New Orleans, LA, for Defendant/Appellee — DATACOM, A Rig Telephones Co., Inc.
    Julie Rene Wilkerson, Gravel, Cespive, & Wilkerson, Alexandria, LA, for Plaintiff/Appellant — Roger Cavaness, Individually and d/b/a Cavaness Broadcasting, Inc.
    Court composed of NED E. DOUCET, JR., C.J., ULYSSES GENE THIBODEAUX, and ELIZABETH A. PICKETT, Judges.
   I THIBODEAUX, Judge.

Plaintiff, Roger Cavaness, appeals the trial court’s judgment granting defendants’, State of Louisiana (“State”) and Datacom, Inc. (“Datacom”), peremptory exceptions of prescription. Mr. Cavaness argues that his suit for damages against the defendants for reimbursement of expenses incurred in detuning the defendants’ towers is subject to ten-year prescription as a quasi-contractual obligation.

We disagree. Mr. Cavaness’ cause of action sounds in tort. Under La.Civ.Code art. 3492, delictual or tort actions are subject to one-year liberative prescription, which runs from the date of injury or the date damages were sustained. We find that plaintiffs cause of action has prescribed. Thus, we affirm the trial court’s judgment.

I.

ISSUES

We shall consider the following issues:

1) whether plaintiffs action against the State and Datacom is a quasi-contrae-tual obligation or unjust enrichment governed by ten-year liberative prescription?
2) whether Datacom acknowledged its obligation to detune its tower, thus interrupting prescription?

II.

FACTS

In 1996, Roger Cavaness, former owner of KVOL-AM radio station in Lafayette, Louisiana, decided to sell his station. Upon making the sale, Mr. Cavaness discovered that two nearby towers, one owned by the State and the other by Data-com, were not detuned when constructed, causing interference with his radio station’s | ¡.signal patterns. According to Mr. Cavaness, owners of any towers erected within 3.2 kilometers of an AM station using a directional antenna must take measures to prevent pattern distortion or interference with the AM station at its own costs, including consistent detuning of the tower to prevent adverse effects on the AM station. 47 C.F.R. § 78.1692 (2003). Neither the State nor Datacom had de-tuned their towers, though KVOL AM’s directional antenna had to maintain a desired pattern of signal levels in different directions to operate properly. Otherwise, the signal patterns were distorted.

To complete the sale of KVOL-AM, Mr. Cavaness had to re-license the radio station with the Federal Communications Commission (“FCC”). Part of his re-licensing requirements were to make repairs to the directional antenna as well as detune the two neighboring towers to prevent distortion. In December 1997, Mr. Cavaness, after notifying both the State and Datacom, hired Michael Patton and Associates to detune the towers so that KVOL-AM’s antenna would return to its normal operations. Costs for this project amounted to $33,194.00. The project took approximately one year to complete before the FCC issued a new license on March 25, 1999.

After incurring these expenses, Mr. Ca-vaness filed a petition for damages on May 22, 2000, against the State and Datacom for monies he expended in making repairs to the directional antenna and to the towers. According to the plaintiff, a quasi-contractual obligation existed between the defendants and Mr. Cavaness, whereby defendants were obligated to reimburse him for expenses. Since quasi-contractual obligations are subject to ten-year prescription, his claim was still viable.

l.qThe State filed both an exception of vagueness and nonconformity of the petition on the grounds that the plaintiff failed to allege the date the Department of Transportation and Development allegedly added a tower, the date it became aware of any pattern distortion, and the dates the offending tower was detuned. Similarly, Datacom filed an exception of vagueness on virtually the same grounds. In response to these exceptions, Mr. Cavaness amended his petition to supplement his charges with specific dates of the alleged occurrences. Defendants followed by filing peremptory exceptions of prescription as to plaintiffs cause of action. Judgment was rendered in favor of the State and Datacom, dismissing Mr. Cavaness’ claim. Mr. Cavaness now appeals the trial court’s judgment.

III.

LAW AND DISCUSSION

Prescription

Mr. Cavaness asserts that ten-year prescription is applicable because his claim creates a quasi-contractual obligation. We disagree.

In plaintiffs petition for damages, Mr. Cavaness sought reimbursement for monies expended to detune defendants’ towers that were interfering with the directional patterns of the AM station. Failure to detune these towers would prevent the plaintiff from selling the radio station and from procuring a new operator’s license from the FCC. Mr. Cavaness chose to make repairs to the towers to proceed with and confirm the sale. Costs amounted to $33,194.00 to complete this project. Mr. Cavaness was well aware that if the offending towers continued to distort his station’s signal patterns, his sale of KVOL-AM could not be perfected. Thus, Mr. Cavaness voluntarily made repairs to the antenna and towers to eliminate interference with the station’s signal patterns to confect the sale.

|4We find that the plaintiffs cause of action arises from tort law, and does not rise to the level of creating a quasi-contraetual obligation subject to ten-year prescription.

In reviewing the grant of an exception of prescription, the character of the action given by the plaintiff in his pleadings, determines the prescription applicable to it. “The nature of the cause of action must be determined before it can be decided which prescriptive term is applicable.” The nature of an obligation in Louisiana, for the purpose of determining the applicable prescriptive period is either contractual, quasi-contractual, delictual, quasi-delictual or legal.

(Emphasis added). (Citations omitted). Taylor v. David New Operating Co., Inc. 619 So.2d 1251, 1253 (La.App. 3 Cir.), writ denied, 625 So.2d 1046 (La.1993).

We find that this is clearly a delictual action. As stated above, plaintiffs petition consisted of a request for reimbursement for monies paid to end distortion and interference caused by the two towers which lied in the vicinity of the AM station. Mr. Cavaness corrected the problem in order to confect the sale of the radio station. Thus, interference with the proper operation of the directional antenna is clearly a tort that caused damages to the plaintiff.

Louisiana Civil Code Article 2315 is the applicable statute for tort liability. Article 2315 states that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Action for tort damages are subject to one-year liberative prescription pursuant to Article 3492. Prescription will run from the date of injury or the date damages were sustained.

The alleged tortious conduct in this case involves interference with the radio station’s signal patterns by the two towers. Mr. Cavaness discovered the interference in 1996 when he decided to sell the radio station. Mr. Cavaness alleged that he began to correct the problem in December 1997, and completed the work in | {¡December of the following year. Further, the FCC issued a new license on March 25,1999. Whether or not the plaintiff argued that prescription began to run from the latter of the above dates as opposed to the earlier of the dates, plaintiffs cause of action would have prescribed pri- or to May 25, 2000, when he initiated the suit under the one-year prescriptive period. Thus, plaintiffs claim is not actionable because it had already prescribed.

Further, we find that plaintiffs assertion that the holding in Don George, Inc. v. Paramount Pictures, Inc., 111 F.Supp. 458 (W.D.La.1951) was applicable in this case adds little to support his argument. The Western District of Louisiana reconsidered Don George five years later and held that the suit was “purely delictual, the alleged damages having been occasioned by conduct which can be classified, under Louisiana law, only as offenses or quasi-offenses, subject to ... one-year prescription.” Don George, Inc. v. Paramount Pictures, Inc., 145 F.Supp. 523, (W.D.La.1956). Thus, this court cannot haphazardly grant the plaintiff recompense based on the holding in the original Don George when this same court reconsidered the issue and reached a contrary result. Thus, Don George no longer stands for the proposition that the plaintiff asserts, and plaintiffs claim has long prescribed.

Unjust enrichment

Mr. Cavaness also asserts that the trial court erred in finding that the doctrine of unjust enrichment was inapplicable. We disagree.

In Carriere v. Bank of Louisiana, 95-3058, p. 17 (La.12/13/96); 702 So.2d 648, 671, the Louisiana Supreme Court provided five requirements for showing unjust enrichment: (1) there must be enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and the impoverishment; (4) there must be an absence of “justification” or “cause” for the enrichment or impoverishment; and (5) there must be no other remedy at law available to the plaintiff.

| Johnco, Inc. v. Jameson Interests, 98-1925, p. 10 (La.App. 3 Cir. 6/23/99); 741 So.2d 867, 872, writ denied, 99-2177 (La.11/5/99); 750 So.2d 183.

Mr. Cavaness asserts that the defendants received economic benefits when he detuned both Datacom and the State’s towers at his own expense. He was impoverished when neither defendant reimbursed him for the monies he expended necessary to bring the towers in compliance with the FCC’s regulation. According to Mr. Cavaness, he was afforded no other remedy at law, other than to detune the two towers. Thus, his impoverishment was causally connected to the defendants’ enrichment.

We find that Mr. Cavaness was not impoverished when he chose to repair the towers. After all, the plaintiff took these steps only in order to sell the radio station. Completion of this project permitted the plaintiff to sell the station to the Powell Group.

We cannot be sure from the record the amount the plaintiff received in his sale of the radio station to determine whether Mr. Cavaness was indeed impoverished. Even if we were aware of the economic benefit he received from the sale of the station, the plaintiff is still entitled to damages under the doctrine of unjust enrichment if he meets the requirements. However, plaintiff fails to prove that he had no other available remedies at law. In fact, if the FCC’s regulation is applicable, Mr. Cavaness could have enforced his rights under federal law, requiring defendants to de-tune their own towers, yet he did not seek this remedy. Also, since this court has concluded that Mr. Cavaness’ cause of action was grounded in tort, La.Civ.Code art. 2315, “Liability for acts causing damages,” was also available to the plaintiff. We find that Mr. Cavaness was driven only by his eagerness to complete the sale, rather |7than by defendants’ responsibility in maintaining their towers. As a result, Mr. Cavaness was not impoverished.

Additionally, we find that the defendants did not incur as great a benefit as Mr. Cavaness would have this court believe. There is no testimony in the record that defendants’ towers would benefit from the detuning. We can only assume that it would make them functional and operational. Neither was there evidence that the FCC had compelled the defendants to detune their towers or be held in violation of the law. It appears that only the radio station suffered from this lack of repair of the towers, and this was only discovered when the plaintiff wished to sell the station. As we see it, Mr. Cavaness received the greatest economic benefit by detuning the towers and that was the sale of the radio station. Thus, the trial court did not err in finding that ten-year prescription and unjust enrichment were inapplicable.

Interruption of Prescription

Mr. Cavaness argues that a letter written to Datacom establishes an acknowledgment by the defendant of its obligation to pay costs for detuning its tower. Further, this acknowledgment interrupts prescription. We disagree.

On May 19, 1998, the Powell Group issued a letter to Datacom thanking the company for its cooperation in the Powell Group’s efforts to detune the tower. Additionally, this letter implies that at some point Datacom asked that it be released from any future liability concerning “post tuning pattern distortion.” We can only presume that Mr. Cavaness relied on this particular language in the letter to assert its argument that Datacom acknowledged its obligation to detune the towers.

In Crump v. Sabine River Authority, 98-2326, p. 12 (La.6/29/99); 737 So.2d 720, the supreme court recognized that an acknowledgment can be express or tacit. However, “[m]ere settlement offers or conditional payments, humanitarian or | ^charitable gestures, and recognition of disputed claims do not constitute acknowledgments.” Id. at 730.

We fail to find that the letter served as an acknowledgment of Datacom’s obligation. The letter only admitted that Da-tacom permitted the Powell Group to enter its premises and detune its tower. Data-com acknowledged no existing liability to the plaintiff or the Powell Group. Further, even if this letter could constitute an acknowledgment, prescription had run. The letter is dated May 18, 1998, and suit was not filed until May 22, 2000, long after the one-year prescriptive period applicable under Article 3492. Based on Crump, we find that Datacom did not acknowledge any obligation to Mr. Cavaness for the expenses incurred in detuning the tower. Thus, the trial court did not err in its finding that the letter failed to serve as an acknowledgment of Datacom’s obligation.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court granting the State of Louisiana, Department of Transportation and Development and Datacom, Inc.’s peremptory exceptions of prescription is affirmed. All costs are assessed to the plaintiff, Mr. Roger Cavaness, individually and d/b/a Ca-vaness Broadcasting, Inc.

AFFIRMED.


author: JjPICKETT, Judge. ■

text:
    S.S., Individually and as Representative of Minors v. STATE of Louisiana, Through the DEPARTMENT OF SOCIAL SERVICES and Educational and Treatment Council, Inc.
    No. 01-943.
    Court of Appeal of Louisiana, Third Circuit.
    March 19, 2003.

      Russell Purvis, Smith, Taliaferro, Purvis & Boothe, Jonesville, LA, for Plaintiffs/Ap-pellees, S.S., Individually and as Representative of Minors.
    Joe A. Brame, Brame & McCain, Lake Charles, LA, for Defendant/Appellant, Educational and Treatment Council, Inc.
    Micheál Penn, Adam L. Ortego, Louisiana Department of Justice, Attorney General, Lake Charles, LA, for Defendant/Appellant, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, MARC T. AMY, ELIZABETH A. PICKETT and BILLY H. EZELL, Judges.
   JjPICKETT, Judge. ■

FACTS

This matter arises from an incident which occurred on August 19,1995, when a minor child, LW, was sexually abused by an employee of the shelter facility where she was placed by the Department of Social Services (DSS) while in the custody of the State of Louisiana.

LW and her two siblings were adjudicated children in need of care and placed in the custody of the State of Louisiana, through the Department of Social Services, on June 3, 1993. The children were split up and placed in different foster care facilities. The children frequently ran away from the various foster care facilities and homes where they were placed.

On July 31,1995, LW was transferred to Harbour House in Lake Charles, Louisiana, which was operated by Educational and Treatment Council, Inc. (“ETC”). LW ran away from Harbour House twice. The second time she ran away, on August 19, 1995, LW had pre-arranged to meet ETC employee Brian Mayes at a location off the ground. Mr. Mayes had allegedly told LW he would take her to her mother. Instead, he took her to his home where they engaged in unprotected sex. The next day, LW reported herself to sheriffs deputies as a runaway. She was returned to Harbour House. LW became pregnant, allegedly as a result of this incident.

On August 29, 1995, LW was removed from Harbour House and placed at the Renaissance Group Home for Girls. She ran away from that facility in September, 1995.

The State was unaware of her whereabouts until March, 1996, at which time LW was seven months pregnant, allegedly as a result of her union with Brian Mayes.

|2LW was released from the custody of the State on May 3, 1996. On May 30, 1996, she gave birth to a baby boy, BW.

On December 23, 1996, SS, individually and on behalf of her minor children, LW, CW, and her minor grandchild, BW, filed suit against the State of Louisiana and ETC.

This case has a lengthy procedural history. In this present appeal, the issues originally brought before us by the State and ETC were: 1) whether the action against the State had prescribed; 2) whether the trial court erred in granting a motion for partial summary judgment filed by the Plaintiff on the issue of negligence against ETC and the State; 3) Whether the trial court erred in failing to assess liability to the employee at issue; 4) Whether the trial court erred in usurping the jury’s right to allocate fault to the employee; and 5) Whether the trial court erred in depriving ETC of its right to have its defenses decided by a jury.

This court ultimately determined that LW’s action had prescribed, pretermitting discussion of the other assignments of error. S.S. v. State ex rel. Dept. of Soc. Servs., 01-943 (La.App. 3 Cir. 12/28/01); 806 So.2d 126. The Plaintiff sought a writ of review to the Supreme Court of Louisiana, and, ultimately, the ruling of this court was reversed by that honorable court. S.S. v. State ex rel Dep’t of Soc. Servs., 02-0831 (La.12/04/02); 831 So.2d 926. This matter was remanded to us for consideration of the remaining assignments of error.

DISCUSSION

The issues before the court at this time relate only to claims against the State and ETC on behalf of the minor child, LW. The first and last assignments of error are related and will be discussed together.

| oThe appellants argue that the trial court erred by granting a partial motion for summary judgment against ETC and the State on the issue of negligence.

Appellate courts review summary judgment de novo under the same criteria that governs a district court’s consideration of whether summary judgment is appropriate. La.Code Civ.P. art. 966. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). The burden of producing evidence that no genuine issue of material fact exists is on the mover, who can ordinarily meet this burden by submitting affidavits or by pointing out a lack of factual support for an essential element in the opponent’s case. Once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the nonmoving party who must come forth with evidence which demonstrates he will be able to meet his burden at trial. Once a motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. La.Code Civ.P. art. 966; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96); 685 So.2d 691, writ denied, 97-281 (La.3/14/97); 690 So.2d 41.

The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97); 701 So.2d 498, writ denied, 98-0050 (La.3/13/98); 712 So.2d 882. Facts are material if they determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97); 702 So.2d 818, writ denied, 97-2737 (La.1/16/98); 706 So.2d 979.

I/The Plaintiff filed a motion for partial summary judgment regarding the issue of whether the State and ETC had been negligent in its supervision of the minor child and alleging the negligence resulted in the rape of the minor child. The trial court granted that motion, found the State and ETC negligent, and specifically stated the trial on this matter would be limited to quantum.

In order to prevail on this motion, the burden is on the moving party, the plaintiff, to establish that no genuine issue of material fact exists as to negligence on the part of the State and ETC, and that she is entitled to judgment as a matter of law.

The trial court gave oral reasons for granting the motion for summary judgment. It is clear from the court’s comments that it concluded that negligence was established on the part of the State and ETC by virtue of the fact the minor child was able to leave the facility late at night. At the same time, the court acknowledged it was not clear exactly how she left the facility. The court further noted the lack of evidence that the State had any notice or knowledge of any shortcomings in ETC’s running of its facility or supervision of its residents. The court apparently did not find these to be disputed issues of material fact which would preclude summary judgment. We disagree.

The Plaintiff has failed to establish a prima facie showing that would entitle her to a judgment as a matter of law. Negligence cannot be presumed. The Plaintiff has established that the minor child left the facility and that an adult employee of the facility aided her in running away, subsequently molesting her. Whether the facility was negligent in its supervision, therefore allowing this incident to occur, is clearly disputed.

There is no undisputed evidence as to how the minor child made good her escape from the home. Whether the facility exercised reasonable care in its | ¡^supervision is also in dispute. The Plaintiff relies on the fact the child was able to run away as proof of negligence. This, however, is insufficient. The record contains evidence that the facility had procedures in place to protect against such occurrences, such as bed checks. Whether these safeguards were either reasonable or adequate is a disputed issue of fact. Further, there is no evidence presented by the Plaintiff that the State had knowledge of any negligent practices on the part of ETC. It is possible the State acted negligently in entrusting this child to ETC—but that must be established by evidence. It cannot be presumed.

Clearly the defendants had legal (the State) and physical custody (ETC) of the minor child and, as a result, had the duty to exercise reasonable or ordinary care for the minor child’s safety commensurate with the particular circumstances—dealing with a teenager placed in the custody of the State who had run away from previous foster care facilities, and, in fact, this facility. The Plaintiff, however, has failed to establish the defendants breached this duty by establishing for the court undisputed facts which entitle her to judgment as a matter of law. Summary judgment against the defendants on the issue of negligence is not proper under the record. Accordingly, the court’s judgment is reversed on this issue.

The defendants, in their third and fourth assignments of error, allege the trial court erred in failing to assess liability to Brian Mayes, the perpetrator, and, in usurping the jury’s right to allocate fault to the perpetrator. Because we have determined summary judgment under the record is not proper in this case, the issue of negligence must be addressed at a trial on the merits.

In an action for injury or loss, the trier of fact shall determine the degree or percentage of fault of all persons found to have contributed or caused that injury. La.Civ.Code art. 2323.

fi The findings of percentages of fault are factual determinations which will not be disputed in the absences of manifest error. Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00); 773 So.2d 670, cert dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Both the nature of the conduct of each party and the extent of the causal relationship between the conduct and the damages claimed must be considered in determining the percentages of fault. Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985).

The trial court erred in not assessing Brian Mayes with a percentage of the fault. However, we have determined the grant of partial summary judgment on the issue of negligence was error. This matter is remanded for a trial on the merits. The jury will, therefore be given the opportunity to determine what percentage of fault, if any, must be assessed against all persons who contributed to any injury against the minor child.

Costs of this appeal are to be borne by the defendants-appellants.

REVERSED AND REMANDED.

AMY, J., concurs in the result.


author: h COOKS, Judge.

text:
    Teddy DOUCET v. CROWLEY MANUFACTURING.
    No. 02-1065.
    Court of Appeal of Louisiana, Third Circuit.
    March 19, 2003.

      Michael B. Miller, Crowley, LA, for Plaintiff/Appellant: Teddy Doucet.
    Patrick J. Hanna, Rabalais, Hanna & Hebert, Lafayette, LA, for Appellee: Work Enterprises, Inc.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   h COOKS, Judge.

Teddy Doucet claimed he injured his back while engaged in the course and scope of his employment with Crowley Manufacturing. Doucet filed a disputed claim for workers’ compensation benefits. Plaintiff was offered employment by Work Enterprises, Inc. (WE) which he refused to accept. In the answer to the claim for compensation, the employer alleged, in the event Doucet was suffering a disability, it was entitled to a credit and/or offset for all wages Doucet was capable of earning. Doucet alleged the employment provided by WE was “sham” employment. WE receives fees from employers, and in turn provides “employment” to injured workers, such as Doucet, which consists of packaging or wrapping individual containers of bath salts, bird seed cups and the like.

To expose WE’s alleged “sham” employment, counsel for Doucet requested certain records from WE to show the company’s profits were derived not through the sale of products but from payments made by the insurers/employers. Doucet’s counsel intended to use this evidence to establish that the “employment” offered by WE was not genuine employment as required by the Workers’ Compensation Act. Doucet took several depositions and acquired certain documents from WE. During the pendency of the case, WE (who was a nonparty in the matter) and Crowley filed a Motion for Protective Order, asserting the information sought by Doucet’s counsel was not discoverable and in the alternative that its use and disclosure should be restricted. The workers’ compensation judge (WCJ) ordered production of ah requested information to the court for an in camera inspection, to determine what information was discoverable and entitled to protection. After the in camera inspection the WCJ issued the following order:

|i>[T]he information provided the court for in camera inspection is hereby released to counsel for the employee, Teddy Doucet, solely for the purpose of taking a deposition of Jack Arceneaux and/or Stanford McNabb in their capacity as representatives of Work Enterprises, Inc.
It is further ordered and decreed that the information hereby released shall be kept confidential by claimant’s counsel, and shall not be released or disclosed to any other person or entity, nor shall said information be used at this time for further discovery by plaintiff by way of contacting other employees of Work Enterprises, Inc. or customers of Work Enterprises, Inc. without further order of this court, and any failure to abide by the protection granted herein may subject the violating party to sanctions, including referral for contempt proceedings.

A settlement was eventually reached between Doucet and Crowley Manufacturing. After the settlement was reached and approved, WE filed a Motion to Modify the Protective Order. At a hearing on the motion, counsel for WE requested “all the depositions with the attachments back” along with the “documents that were produced pursuant to the subpoena duces te-cum.” Counsel for Doucet countered that all that should be “protected is those items that would be trade secrets or information that we should not be able to give to someone else.”

At the conclusion of the hearing, the workers compensation judge ordered “a return of all financial confidential documents, whether attached to deposition or otherwise. And I am willing to place under seal or — or enter a more specific order protecting particular pages, lines, what have you in the depositions. But I will need to be provided — the information to draft my order.” The WCJ stated that counsel for Doucet had one week after the submission by WE of the portions it desired protected or returned to file a response. Counsel for WE sent a proposed judgment to the WCJ and Doucet’s attorney listing the portions of the depositions which it wanted placed under seal and the documents it wanted returned. No objection to this judgment was ever made by counsel for Doucet.

|SA judgment was eventually signed by the WCJ, requiring the return to WE of “[A]ll documents attached as Exhibit 1 to the deposition of Stanford H. McNabb taken on August 23, 2001.” The judgment also ordered that “those portions of the deposition of Jack Arceneaux described in paragraph 2 of Exhibit A and those portions of the deposition transcript of Stanford H. McNabb identified in paragraph 3 of Exhibit A attached hereto are hereby placed under seal of this Court subject to the right of any party to have the seal lifted upon a showing of good cause.”

Doucet timely appealed the judgment, asserting the following assignments of error:

1. The WCJ erred in ordering that all documents attached to the deposition of Stanford McNabb be returned to WE.

2. It was error for the WCJ to place under seal those portions of the depositions of Stanford McNabb and Jack Ar-ceneaux requested by WE.

3. The WCJ erred in prohibiting the contact of employees of WE without the consent of WE or the .OWC.

ANALYSIS

The trial court has broad discretion in discovery matters. Laburre v. E. Jefferson Gen. Hosp., 555 So.2d 1381 (La.1990); Holloway v. City of Alexandria, 506 So.2d 234 (La.App. 3 Cir.1987). La. Code Civ.P. art. 1426 allows the trial court authority to issue a protective order, for good cause, limiting the scope of discovery. Such a protective order may be fashioned to preserve the confidentiality of the information disclosed. The granting or not of a protective order and the extent of protection extended are within the sound discretion of the trial court. Boyd v. St. Paul Fire & Marine Ins. Co., 99-1820 (La.App. 3 Cir. 12/20/00), 775 So.2d 649. An appellate court will not modify or reverse the trial court in such matters absent a ^showing of abuse of discretion. Id.; Cerre v. Cerre, 96-2328 (La.App. 4 Cir. 1/15/97), 687 So.2d 601.

The WCJ’s order placing portions of the depositions under seal reserved the right to any party, upon a showing of good cause, to lift the seal. We further note, the WCJ provided counsel for Doucet the opportunity to object to the judgment placing the portions of deposition under seal. The following colloquy took place between counsel and the WCJ:

JUDGE MORROW:
I will order a return of all financial confidential documents, whether attached to deposition or otherwise. And I am willing to place under seal or — or enter a more specific order protecting particular pages, lines, what have you in the depositions. But I will need to be provided—
MR. HANNA [Counsel for WE]:
That’s fine. That’s fine.
JUDGE MORROW:
—the information how to draft my order.
MR. HANNA:
Sure.
JUDGE MORROW:
I don’t have the depositions—
MR. HANNA:
That’s fine. I’ll do that, Judge. I don’t have a problem with that.
JUDGE MORROW:
Okay. Then why don’t you send me what you think is subject—
MR. HANNA:
Okay.
JUDGE MORROW:
—to further protection, copy Mr. Miller [counsel for Doucet] on that. And, Mr. Miller, get me a response to that within five days. Let me go ahead. Mr. Hanna, how long do you need to read through and | smake those identifications?
MR. HANNA:
Why don’t you — Why don’t you give me ten days, Judge?
MR. MILLER:
Judge, on the — financial confidential documents, I know the financial reports of the company, the balance sheet, I know that goes in there. Is there anything else that they want, other than that?
JUDGE MORROW:
That’s what Mr. Hanna is going to let me know on or before—
MR. HANNA:
Mike [Mr. Miller], there were some documents that are out in the public anyway. I don’t really have any need for those. I’ll get you a list.
JUDGE MORROW:
Yes. Some of the documents were turned over to me—
MR. HANNA:
Right.
JUDGE MORROW:
—without the necessity of a hearing. MR. HANNA:
Right.
JUDGE MORROW:
There were some that—
MR. MILLER:
I just want to know what to give him. I know we’re going to have to give him the financial documents. I just want to know what else, if there’s anything else he’s claiming. And, of course, if I don’t have an objection, I’m going to okay it. And if I do, then, we’ll be back. But like I said, I don’t — I don’t intend to try and make everything available. I just want to make sure that everything that should be available is available.
JUDGE MORROW:
Okay. Mr. Hanna, the 25th or 28th, Friday or Monday?
|fiMR. HANNA:
Give me until Monday.
JUDGE MORROW:
So, Mr. Hanna, get it to me by the 28th, with a copy to Mr. Miller. Mr. Miller, you can act on behalf of Mr. Townsley (co-counsel for Doucet), or does he need to copy him also?
MR. HANNA:
I’ll copy both of them.
JUDGE MORROW:
Okay.
MR. MILLER: .
He’s working now, but not eight hours a day yet.
JUDGE MORROW:
I feel so bad for him. And then, Mr. Miller, is a week sufficient for you to respond, or do you need — do you want the Monday or the Friday?
MR. MILLER:
Monday.
JUDGE MORROW:
Okay, then, the 4th for any objections. And if there is an objection, I will set that for hearing.

Doucet’s appellant brief does not cite any statutory or jurisprudential authority for its contention that the WCJ erred in issuing the protective orders and sealing the record. Instead, he contends the WCJ erred in placing certain portions of the depositions under seal because the information was not of such a nature as to require protection. This argument, now made before this court for the first time, could have been raised before the WCJ, who gave counsel full opportunity to object to the portions of the deposition sought to be placed under seal by WE. However, counsel for Doucet did not avail itself of that opportunity and instead acquiesced to the proposed judgment by WE. The objection comes too late on appeal.

7 Lastly, it is asserted the WCJ erred in prohibiting any contact of WE employees without the consent of WE or the OWC. We agree. There is no legal basis for the WCJ issuing a protective order prohibiting counsel from speaking to employees of WE. If such an order were allowed to stand, counsel for Doucet could be held in contempt of court for investigating another claim that is wholly unconnected with Doucet’s claim. Therefore, the portion of the judgment prohibiting any contact with employees of WE without a court order or permission of WE is reversed.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation prohibiting any contact of WE employees without the consent of WE or the OWC is reversed. The judgment is affirmed in all other respects. Costs of this appeal are assessed equally to the parties.

AFFIRMED IN PART; REVERSED IN PART.


author: 11 DAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Delmar M. BRADFORD.
    No. 2002-KA-1452.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 23, 2003.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Kevin V. Boshea, New Orleans, LA, for Delmar M. Bradford.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY).
   11 DAVID S. GORBATY, Judge.

Delmar Bradford appeals his conviction and sentence for three counts of second degree murder and one count of attempted second degree murder. For the following reasons, we affirm.

STATEMENT OF CASE:

Delmar Bradford was initially indicted by an Orleans Parish grand jury with three counts of first degree murder in Case Number 402-320. On August 24, 2000, he was reindicted with three counts of second degree murder and one count of attempted second degree murder. On March 21, 2001, a jury found Bradford guilty as charged on all counts. On May 4, 2001, Bradford appeared for sentencing and filed motions for new trial and for judgment of acquittal notwithstanding the verdict. The trial court denied the motions, and the defendant waived all legal delays. The trial court sentenced Bradford to three concurrent terms of life imprisonment, without benefit of parole, and to serve a consecutive term of fifty years at hard labor, without benefit of parole. A motion for appeal was granted.

On March 21, 2002, represented by new counsel, Bradford filed a second motion for new trial. On June 14, 2002, a supplemental and amended motion for new trial was filed. A contradictory hearing on the motion was held the same day. R On August 22, 2002, the trial court denied the motion for new trial. This appeal follows.

STATEMENT OF FACT:

On July 5, 1998, at approximately 9:30 p.m., Officer David Dotson and his partner, Officer Melody Young, were dispatched to the scene of a shooting at the intersection of St. Anthony and N. Villere Streets. Dotson observed a vehicle exhibiting multiple gunshots with all the windows shot out. A large crowd of people had gathered outside the vehicle. Two passengers in the rear of the vehicle, Des-kanell Davis and Rickey Auffey, were dead. A third victim in the front seat, Leonard Robins, suffered from multiple gunshot wounds to his upper extremities, but was still alive. Dotson related that Robins was coherent and kept saying that he was not going to die. The officers noticed a trail of blood leading away from the car, which lead Officer Dotson to a fourth victim, William Mims, nearby with a gunshot wound to his hand in an apparent state of shock. The officers acted to preserve the crime scene and awaited arrival of emergency personnel. Leonard Robins subsequently expired from his injuries.

Detective Greg Hamilton was assigned as the lead investigator. He ensured that all bullet casings and bullet fragments were collected at the crime scene.

The only survivor of the shooting, William Mims, was not able to give Detective Hamilton any information as to who was responsible for the shooting. Despite his efforts at interviewing people in the area of the shooting in the coming days, Detective Hamilton was unable to identify any suspects during his investigation until he was informed in late August that a victim of another shooting, Percy Cooper, was a witness.

| ¡¡Percy Cooper testified that on August 23, 1998, he was riding his bicycle to a block party. At the intersection of North Robertson and Pauger Streets, Cooper observed a pickup truck pass with the defendant, Delmar Bradford, in the bed of the truck. The two acknowledged each other, and the truck proceeded around the corner. When Cooper reached the corner of St. Anthony and N. Robertson Streets, he saw Bradford and another individual standing there, and they started firing at him. Bradford was armed with an assault rifle. Cooper fled on the bicycle, but was shot several times and fell. As he lay on the ground, Bradford approached, laughed, and then ran away. Cooper had been shot twice in the arm, in the hand, the hip, and the foot. He was able to get up and hop over to some steps where he sat down. A crowd formed around him. Subsequently, emergency personnel and the police arrived, and Cooper was taken to the hospital.

Detective Carlton Lawless was assigned to the follow up investigation in the shooting of Percy Cooper. He took control of the crime scene from the initial responding officers. Lawless spoke briefly with Percy Cooper at the scene and asked if he knew who shot him. All Cooper could tell him before he was taken to hospital was that it was someone named Delmar, Delmarcus, or Del.

Detective Lawless began locating spent casings at the crime scene. He observed a Ford Taurus with several bullet holes and broken windows. Lawless also observed that a bullet had entered a residence at 1723 N. Robertson Street through a window. The bullet passed through an interi- or wall and traveled through the common wall into the adjoining residence at 1725 N. Robertson. Lawless directed the crime lab to recover the bullet fragment from the residence as well as another fragment from the doorframe of another house. Numerous shell casings were also recovered from the intersection.

|4Petective Lawless was familiar with a subject by the name of Delmarcus Smith, and playing a hunch, as he described it, he compiled a photographic lineup depicting the subject and presented it to Cooper at the hospital the next day. Cooper viewed the lineup and informed the detective that the perpetrator was not in the lineup.

Detective Lawless returned to his office and after speaking with several officers including Detective Hamilton, he developed Delmar Bradford as a suspect and compiled a photographic lineup. Detective Hamilton also compiled a photographic lineup depicting Delmar Bradford for use in his investigation of the triple homicide, and the two returned to the hospital where Cooper identified Delmar Bradford as the person who had shot him, as well as the perpetrator of the shooting on July 5, 1998.

Percy Cooper testified that when he spoke to Detective Lawless and Detective Hamilton he revealed that the person who shot him had also been responsible for the previous homicides. Cooper testified that on July 5, 1998, he was walking on St. Anthony Street after leaving a friend’s house. He stated that he observed a burgundy car pass him and stop at the next intersection. A green car was parked at the stop sign. Delmar Bradford exited the burgundy vehicle with an assault rifle and began shooting at the green car. Cooper was approximately two houses away at this time. When the shooting started, Cooper ran in the opposite direction. Cooper stated that he recognized Bradford as he had known him previously.

Sgt. Robert Norton testified that he was a member of the team that executed a warrant for Delmar Bradford at 5404 Royal Street. The officers arrived at the home at approximately 4:00 a.m. and were greeted by Bradford’s mother. She |fidirected the officers to a bedroom where Bradford was located. Inside a closet in the room, Sgt. Norton located an AK-47 assault rifle and two fully loaded clips of ammunition that were taped together.

Officer Byron Winbush testified as an expert in firearms and firearms examinations. He examined a bullet recovered during the autopsy of Leonard Robins and a bullet recovered during the autopsy of Rickey Aufrey. Winbush stated that they were both 7.62 millimeter bullets, which is the type of ammunition normally used in an AK-47 rifle. By comparing the striations on the bullets he was able to determine that they were both fired from the same weapon. Winbush further examined twenty-three 7.62 millimeter shell casings recovered from the scene of the homicide and was able to determine that twelve of the casings were fired by one weapon and that eleven of the casings were fired by another weapon. Officer Winbush test fired a round from the weapon recovered by Sgt. Norton and made a comparison with the two bullets obtained during the autopsies. He testified that the markings on the test fire bullet were insufficient to render a determination as to whether the two autopsy bullets were fired by the weapon in question. He stated though that in his expert opinion there was an 85% probability that the two bullets were fired from the weapon. Winbush related that the type of weapon made it difficult to make a determination as it has only four lands and grooves in the barrel as opposed to five or six found in a .38 caliber pistol. He stated further that there had been some damage to the barrel of the gun as some of the lands and grooves were overlapping. He explained that the weapon is a poorly manufactured weapon and that repeated firing of the weapon and the failure to clean it will cause wear and tear on the barrel.

| (¡Officer Kenneth Leary testified as an expert in firearms examinations. He examined fourteen 7.62 millimeter shell casings recovered from the August 23, 1998, shooting and was able to determine that they were all fired from the same weapon. Another shell casing recovered from the scene exhibited insufficient stria to make a determination. Leary also examined a bullet and copper jacket fragment recovered from the August 23, 1998 shooting and found that they were fired from the same weapon. Finally, Leary also compared shell casings from the two earlier homicides with shell casings recovered at the August 23,1998 shooting, and was able to match two cartridge cases recovered at the homicide scene to the fourteen cartridge cases recovered at the August 23, 1998 shooting.

ERRORS PATENT:

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1:

Bradford contends that the trial court erred in denying his later filed motion for new trial, which was based on newly discovered evidence, namely Percy Cooper’s medical records from Charity Hospital. The medical records contain the results from a urinalysis toxicology screen that indicate the presence of opiates, cocaine, and benzodiazepine. The records also contained information that Cooper was admitted for drug treatment in March, 2000. At trial, the prosecutor asked Cooper whether he was “high or drunk” on the night that he was shot such that his ability to perceive someone would have been affected. Cooper replied that he was not.

To obtain a new trial under La. Code Crim. Proc. art. 851(3), the defendant has the burden of showing: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of the trial was not caused by the 17lack of diligence; (3) the evidence is material to the issues at trial; and, (4) the evidence is of such a nature that it would probably have changed the verdict. State v. Hammons, 597 So.2d 990 (La.1992); State v. Metoyer, 97-2266 (La.App. 4 Cir. 10/7/98), 720 So.2d 148.

The testimony from the hearing on the motion for new trial reflects that on the morning of trial defense counsel made an oral motion to continue the trial based in part on the need to obtain Cooper’s medical records. The trial court denied the motion, but issued a subpoena duces tecum to the custodian of medical records at the Medical Center of Louisiana. From the record, it is apparent that the records were produced on April 7, 2001. The trial court denied the motion for new trial on the basis that the evidence “could have been obtained or sought prior to the trial.” The court’s ruling was clearly correct.

In State v. Metoyer, supra, this Court found that counsel’s failure to obtain an operative report, which was not included in the medical records initially produced by the hospital, was not caused by lack of diligence. The report was located only after numerous visits to the medical records department by a private nurse hired to search for the report. By contrast, Bradford’s counsel’s only effort to obtain the records did not commence until the day of trial. The trial court properly denied the motion.

In passing, Bradford further alleges that the failure of the prosecution to obtain the medical records and produce them by way of its Brady obligation amounts to a Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490, (1995) violation. Bradford raised this issue in his motion for new trial.

\ ¡Kyles was a post-conviction case involving the application of the well-established Brady rule that the prosecution’s failure to disclose exculpatory material justifies a new trial, regardless of whether that failure is in good faith or bad faith. Kyles, 514 U.S. at 437-38, 115 S.Ct. at 1567. Rejecting the argument of the State of Louisiana that Brady’s requirement of a new trial should not apply in circumstances where the evidence is known only to police and not to the prosecutor, the Court stated that “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Id.

Bradford’s discussion of Kyles is simply that the State bore the burden of producing the aforementioned records. The argument assumes, notably without citation or authority, that the prosecution’s duty to learn of any favorable evidence extends beyond the boundaries of others acting on the government’s behalf in the case, including the police, to a state-funded hospital. We do not find that Kyles creates such a duty, especially in the absence of argument to the contrary. Whatever the exact parameters of Kyles may be, they clearly do not extend to an institution, albeit a state-funded institution, whose primary mission is the care and treatment of the sick and injured, and not tied to the judicial system.

ASSIGNMENT OF ERROR NUMBER 2:

By this assignment Bradford argues that his conviction should be reversed on the ground of an improperly constituted grand jury. He contends that the procedure utilized in Orleans Parish for selecting the grand jury foreman resulted in the substantial under-representation of African-Americans as grand jury [ ^foremen. Bradford contends that because the foreman of the grand jury that issued the indictment was selected in a discriminatory manner he is entitled to relief pursuant to the Fourteenth Amendment. However, the record on appeal shows that Bradford failed to move to quash the grand jury indictment. Because this issue is raised for the first time on appeal, Bradford has faded to preserve the claim for review.

In Deloch v. Whitley, 96-1901 (La.11/22/96), 684 So.2d 349, the Louisiana Supreme Court made clear that an equal protection claim based upon discriminatory selection of the grand jury foreman is barred if the defendant fails to file a pretrial motion to quash saying:

All equal protection claims arising out of the selection or composition of grand juries in Louisiana remain subject to this state’s procedural requirements. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Counsel must assert the equal protection claim in a pre-trial motion to quash or waive any complaint in that regard. Francis, 425 U.S. at 539-542, 96 S.Ct. at 1710-11; State v. Lee, 340 So.2d 180, 182 (La.1976) (motion to quash is the appropriate vehicle for challenging the validity of a grand jury indictment, composition, or selection process); State v. Dillard, 320 So.2d 116, 120 (La.1975) (failure to file a motion to quash before trial waives any challenge to the grand jury); State v. White, 193 La. 775, 192 So. 345, 348 (1939) (same); cf., Johnson v. Puckett, 929 F.2d 1067, 1069 (5th Cir.1991) (“At his trial, Johnson, a black male, moved to quash the indictment because of racial discrimination in the selection of the grand jury foreman but the motion was denied.”); Guice v. Fortenberry, 661 F.2d 496, 501, n. 7 (5th Cir.1981) (same), appeal after remand, 722 F.2d 276 (5th Cir.1984).

Id.

Apparently cognizant that his claim is procedurally barred from review, Bradford argues that trial counsel was ineffective for fading to raise the equal protection claim prior to trial. In general, a defendant asserting an ineffective |inassistance of counsel claim must demonstrate that counsel’s performance was deficient and also that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Citing U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) defendant avers that he need not demonstrate prejudice, as the failure to move to quash the indictment was a constructive denial of counsel and prejudice should be presumed. In Cronic, decided the same day as Strickland v. Washington, the Supreme Court created a very limited exception to the application of Strickland’s two-part test in situations that “are so likely to prejudice the accused that the cost of litigating their effect in the particular case is unjustified.” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046. The Supreme Court identified three situations impheating the right to counsel where prejudice will be presumed. First are situations in which a defendant petitioner is denied counsel at a critical stage of a criminal proceeding (complete denial of counsel). Second, and the most relevant here, are situations in which a defendant’s trial counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659, 104 S.Ct. at 2047. Finally, prejudice is presumed when the circumstances surrounding a trial prevent a petitioner’s attorney from rendering effective assistance of counsel. Cronic, 466 U.S. at 659-660, 104 S.Ct. at 2047. (citing Powell v. Alabama, 287 U.S. 45, 57-58, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).

In Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), the Supreme Court clarified the scope of the Cronic exception to Strickland, with regard to the failure Into test the prosecution’s case. The Court reiterated that the failure must be “complete,” and is only applicable when “ ‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ ” 535 U.S. at 685, 122 S.Ct. at 1851 (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039.) (Emphasis added.) Here, Bradford’s argument is not that his counsel failed to oppose the prosecution as a whole, but at a specific point. Accordingly, the claim must be analyzed according to Strickland’s performance and prejudice components where defendant must overcome the “presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. at 2052. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). The failure to file a motion to quash, which as here, would likely lead only to re-indictment, can properly be assigned to “trial strategy.” See State v. Hoffman, 98-3118, p. 38 (La.4/11/00), 768 So.2d 542, 577 (counsel’s decisions as to which motions to file form a part of trial strategy); State v. Smith, 94-0621 (La.App. 4 Cir. 12/15/94), 647 So.2d 1321, rev’d on other grounds, 95-0061 (La.7/2/96), 676 So.2d 1068. Furthermore, under these circumstances, where a new indictment could have led to the reinstitution of first-degree murder charges, the decision to seek a new indictment could well be faulted in its own right.

ASSIGNMENT OF ERROR NUMBER 3:

Bradford alleges that he was prejudiced by a reference to his post-arrest silence in contravention of the rule established in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). During the testimony of Detective Hamilton he was asked whether he was present when Bradford was apprehended and he responded as follows:

was notified at, man, probably was three something in the morning when this person was apprehended and taken to the Fifth District Police Station where I there went to the police station to meet with him, advise him of his rights, his charges, asked him if he wanted to make any statements. At that point he did not want to make any statements to me.

In Doyle v. Ohio, the United States Supreme Court addressed the issue of whether a prosecutor could seek to impeach a defendant’s exculpatory account, offered for the first time at trial, through his failure to offer the statement at the time of his arrest after receiving Miranda warnings. The Court held that the use, for impeachment purposes, of a defendant’s silence after receiving Miranda warnings at the time of arrest, violates the Due Process Clause of the Fourteenth Amendment.

The record reflects that no objection was offered by defense counsel to the complained of statement by Detective Hamilton. As such the alleged error was not preserved for appellate review. La Code Crim. Proc. art. 841; State v. Trackling, 598 So.2d 615 (La.App. 4 Cir.1992), rev’d in part on other grounds, 609 So.2d 206 (La.1992). Furthermore, the argument lacks merit. Doyle prohibits the use of an accused’s exercise of his constitutional right to remain silent to undermine exculpatory testimony by the defendant offered for the first time at trial, e.g., State v. Grant, 99-1065 (La.App. 5 Cir. 1/25/00), 761 So.2d 10. Here there is no indication of an attempt to exploit Bradford’s post-arrest silence, and the officer’s statement appears to be a simple “description of how the police investigation culminated in the formal arrest of the defendant with the routine incidents of custody, e.g., the reading of Miranda warnings to the person arrested.” State v. George 95-0110, p. 10 (La.10/16/95), 661 So.2d 975, 980.

I ^ASSIGNMENT OF ERROR NUMBER 4:

Bradford contends that he received ineffective assistance of counsel at trial and raises several instances, which he claims demonstrate that his trial attorney was not functioning as the “counsel” guaranteed him by the Sixth Amendment.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1080 (La.App. 4 Cir.1990). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir. 1986).

A defendant’s claim of ineffective assistance of counsel is to be assessed by a two-part test: the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the counsel guaranteed to the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).

Bradford begins his discussion by noting several “objectionable instances” of trial counsel’s purported deficient performance under the heading of “Discovery.” He notes that the State provided purportedly “late discovery” on the morning of trial and that defense counsel moved for a continuance on this basis. Bradford states that “[t]his (in reference to the late discovery) is most important because during the trial, counsel for the defendant is issuing instanter subpoenas for witnesses, Ronald Wilson and Damon Albert.” Bradford fails to elaborate on this “important” correlation between the _ discovery and the need to issue subpoenas. However, the clear implication is that the identity of these two witnesses was only realized after obtaining the discovery material. The State’s supplemental answers to discovery reflect that the material provided on the day of trial consisted of Percy Cooper’s typed statement to police and Officer Leary’s crime lab report. Neither of these two documents identifies Ronald Wilson or Damon Albert as potential trial witnesses. In any case, it is difficult to ascribe any relevance of the timeliness of the State’s discovery responses to a claim of ineffective assistance of counsel.

Bradford also notes, “[w]hy counsel is issuing subpoenas for witnesses in the middle of a multiple victim Second Degree trial is not clear.” His apparent suggestion is that counsel was ineffective in this regard. However, as Bradford himself recognizes, the record here is clearly insufficient to assess either element of the Strickland analysis in this regard. The answer to the question and any discussion of the issue must therefore be left for post-conviction relief.

1K Bradford also claims through appellate counsel that he received ineffective assistance of counsel because his trial counsel did not make a sufficient effort to procure Percy Cooper’s medical records prior to trial. To some degree, the testimony of defense counsel at the hearing on the motion for new trial answers appellate counsel’s question. Trial counsel testified that he had assumed that the State had obtained Percy Cooper’s medical records and would introduce them at trial to establish the extent and nature of his injuries. Such evidence would be important to satisfy the elements of second-degree murder. Counsel also testified that he recalled that the trial court had ordered the prosecution to obtain the records. Finally, counsel admitted that he telephoned the prosecutor the night before trial in an effort to locate the medical records.

Bradford notes that the records would have served as a valuable tool to impeach the witness’s testimony. However, as the U.S. Supreme Court cautioned, [a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In this case, the relative significance of the medical records only became apparent once the results of the toxicology screen were known. Absent a showing of some prior knowledge of the contents of the records, judging the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct, this Court cannot say that counsel’s failure to obtain the records fell outside [the] wide range of professionally competent assistance. 466 U.S. at 690, 104 S.Ct. at 2066.

1fi Bradford also observes that defense counsel did not object after the trial court granted the State’s motion in limine to exclude any reference to the arrest or conviction of Officer George Lee who was present at the time of Bradford’s arrest. Other than note that criminal convictions are admissible against a witness at trial, Bradford does not suggest that the court’s ruling was improper or the basis for any objection or argument that trial counsel should have raised. As the State notes, it has not been alleged that Lee played a significant role in the development of the case or apprehension of Bradford; furthermore, he did not testify, and any gratuitous references to his criminal convictions would have been irrelevant and inadmissible. When the substantive issue an attorney failed to raise has no merit, then the claim the attorney was ineffective for failing to raise the issue also has no merit. See State v. Williams, 613 So.2d 252, 256-57 (La.App. 1 Cir.1992).

Part II of defendant’s assignment of error, entitled “Mistrial” centers on alleged instances of the introduction of other crimes evidence. Generally, evidence of other crimes, wrongs, or acts committed by the defendant is inadmissible. See La. Code Crim. Proc. art. 770(2), 770. In State v. Edwards, 97-1797, p. 20 (La.7/2/99), 750 So.2d 893, 906, the Louisiana Supreme Court summarized the jurisprudence as follows:

Potentially damaging remarks include reference to race or religion, when not material or relevant to the case, and direct or indirect reference to another crime committed or alleged to be committed by the defendant, unless that evidence is otherwise admissible. La.Code Crim. P. art. 770. The comment must be within earshot of the jury and must be made by a judge, district attorney, or other court official. Id. Comments must be viewed in light of the context in which they are made. State v. Webb, 419 So.2d 436, 440 (La.1982). Moreover, a comment must not “arguably” point to a prior crime; to trigger mandatory mistrial pursuant to Article 770(2), the remark must “unmistakably” point to evidence of another crime. State v. Babin, 336 So.2d 780 (La.1976) (where reference to a “mug shot” was not unmistakable reference to a crime committed by defendant); State v. Harris, 258 La. 720, 247 So.2d 847 (1971) (where no crime was evidenced by a police officer’s reference to obtaining defendant’s photograph from the Bureau of Investigation). In addition, the imputation must “unambiguously” point to defendant. State v. Edwards, 406 So.2d 1331, 1349 (La.1981), cert. denied sub nom. Edwards v. La., 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982). The defendant has the burden of proving that a mistrial is warranted. See State v. May, 362 So.2d 516 (La.1978).

The first purported instance occurred during the testimony of Officer Melody Young. She was one of the first officers on the scene of the first shooting and she was able to speak with Leonard Robins before he expired. The defense questioning was as follows:

Q. Now, you said or described that you had conversation with one of the deceased who was — still remained alive at the scene, correct?
A. Yes, sir.
Q. That person did not tell you that Delmar Bradford was the shooter?
A. He did not call a name.
By Mr. Milner: We would object. That’s hearsay, Your Honor.
By the Court: Overruled.
Q. . Did he identify Delmar Bradford as being a shooter?
A. He said he tried to kill me before, he’s not going to kill me, I’m not going to die.
Q. But he did not tell you who that person was?
lisA. No, sir.
Q. Did you ask him?
A. Yes, I did.
Q. Did he refuse to give you a name or did he just not
A. It’s like, I’m going to handle it, I’m not going to die. That was it.

The highlighted portion of the testimony represents the purported other crimes reference. Bradford contends that trial counsel’s failure to object to the statement or request a mistrial constitutes ineffective assistance of counsel. The officer’s testimony referenced a comment by a dying man that “he tried to kill me before.” The officer repeated the alleged comment in answer to a question about whether the victim identified Bradford as the shooter. The comment was not an unambiguous reference to another crime committed by this particular defendant. Further, the comment was not made by the judge, the district attorney or other court official. Counsel was not deficient for failing to object or request a mistrial, and Bradford did not suffer any prejudice by the failure of his trial counsel to do so.

The second instance of an alleged reference to other crimes came during the direct examination of Detective Hamilton:

Q. Okay. Did you eventually — did you have a break in the case?
A. Yes I did. I mean, I thought I was going to have something sooner but I must say, as my case was happening, as I was out investigating people were— said they’re going to talk to me later, I was waiting on information that never came. After this particular car, those photographs you seen, it was in the news that this car was part of or as they advertised and talk about again that we, the New Orleans Police arrested the Seventh Ward Soldiers, that car was shown at the time |1fland that this arrest was made on the Seventh Ward soldiers. So I take it that people assume my— By Mr. Boyer: Objection, Judge, this is all speculation.
By The Court: Sustained.
By Mr. Boyer: I don’t know where this is coming from.
Q. Well—
A. Well I guess the point I make is that my investigation cut off after that car was shown on TV.
Q. Okay.
By Mr. Boyer: Judge I’m going to move that that testimony about the Seventh Ward Soldiers and that be stricken. I mean, there’s no basis in fact for any of that. I don’t know where that comes from.
By the Court: Approach the bench.
By Mr. Milner: I’ll do better than that, Judge. I mean, I’ll do better than that with the witness if Mr. Boyer will let me.
By the Court: I don’t know what that means. Approach the bench.

Bench Conference Ensues

Examination by Mr. Milner: Now this case didn’t have anything to do with Seventh Ward Soldiers’ case, did it?
A. No it did not.
Q. Okay.
By the Court: All right ladies and gentlemen—
By the witness: To my input I have no knowledge that it had anything to do with the Seventh Ward Soldiers other than the vehicle was shown in the news, on the media of that vehicle, that I showed you pictures of there.
By the Court: Mr. Boyer, do you have a motion?
IsoBy Mr. Boyer: Yes, Judge I would ask that you admonish the jury that that testimony regarding the soldiers and whatever connection that can be drawn be stricken from the record and act like it never occurred.
By the Court: All right ladies and gentleman, the Defense had moved — motion is granted. The Defense has moved for an admonition to the jury to have that testimony that you just heard about the car and the Seventh Ward Soldiers, although there is no connection there as the detective just testified, I am ordering that that be stricken from the testimony. You are to not factor that into your deliberations. You are to disregard that testimony as if it never happened.

The following morning, defense counsel moved for a mistrial which the court denied.

Bradford alleges that trial counsel was ineffective for failing to request a mistrial initially, rather than waiting until the following day. Again, Bradford presents no argument as to why the delay in seeking a mistrial was faulty, or failed to preserve the error. In any case, plainly, the reference to the Seventh Ward Soldiers was unnecessary as it bore little relevance to the case; and, as made clear by the officer, there was no connection between the Seventh Ward Soldiers and the instant case other than the fact that video of the car had been mistakenly broadcast on television in association with another case. The trial court’s admonition which both emphasized this fact and which instructed the jury to disregard the testimony was clearly sufficient to correct any potential for prejudice. Accordingly, the trial court’s denial of the mistrial was not in error, and counsel’s performance was neither deficient in this regard nor was there any prejudice to the defendant.

Bradford contends further that counsel’s failure to object or request a mistrial in response to the alleged Doyle violation during Detective Hamilton’s testimony supports a finding of ineffective assistance of counsel. As discussed in | „Assignment of Error No. 2, Detective Hamilton’s brief mention of Bradford’s post-arrest silence was not in violation of Doyle v. Ohio.

Bradford also alleges that his trial counsel was delinquent in failing to request a mistrial following an incident at the conclusion of the first day of trial. Apparently, as the jury was exiting the courtroom, they were followed out by several members of the audience who were either the defendant’s or the victims’ family members. Furthermore, it appears that there was some concern over something on the evening news or in the newspaper related to the trial. Before trial commenced on the second day, the trial judge spoke with each of the jurors separately in chambers with all counsel present to assess whether anyone had been intimidated or frightened and whether anyone had seen or read anything about the case.

A mistrial may be declared when “prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.” La.Code Crim. Proc. art. 775. Mistrial is a drastic remedy and proper only when misconduct deprives the defendant of any reasonable expectation of a fair trial. State v. Miller, 93-1096 (La.App. 4 Cir. 5/17/94), 637 So.2d 1115. A decision on whether prejudice has resulted lies in the sound discretion of the trial judge. State v. Allen, 94-1895 (La. App. 4 Cir. 9/15/95), 661 So.2d 1078.

As evidence that the jury had been “compromised” by the incident, Bradford points to the statements of Juror Domaine when questioned by the trial judge.

Q. Good morning, Ms. Domaine, how are you doing?
A. All right. How are you?
Q. I’m doing fine thanks. I’m calling back each of the jurors and asking them the same questions. And that is, did you watch any TV last night?
I ?.s>A. No.
Q. Read any newspapers?
A. No.
Q. And did anything happen during yesterday’s proceedings that you feel influences you one way or the other?
A. Just that the people that was in the — out in the courtroom followed us out. You know, they came out just when we came out.
Q. Last night or earlier?
A. Last night. They were just standing there. You know, that’s the only thing. Other than that I’m fíne.
Q. Okay does that influence you one way or the other?
A. No. I just felt a little uncomfortable that they came out the same time we did. Last night when we, you know-Q. When we adjourned for the night.
A. The first time.
Q. Before that?
A. Yeah.
Q. Okay. Before.
A. And you rectified that. But that was the only thing.
Q. And you feel you could be a fair and impartial juror in this case?
A. Yeah, uh-huh.
Q. All right. Great. Thank you so much, Ms. Domaine, we’re going to start in a minute.

La As is evident from the colloquy, Juror Domaine was not affected by the incident. The eleven other jurors likewise stated that the incident did not affect their ability to be fair and impartial.

Bradford also points to a comment by Juror Hadley. The trial court asked him, “Did anything happen during yesterday’s court proceedings that you feel influences you one way or the other in the case?” Mr. Hadley responded, “The information we received so far.” Bradford alleges that the statement demonstrates that the juror had already made up his mind. Certainly any juror would be influenced by the information received in a trial, and the statement does not indicate that the juror was predisposed in one direction or the other.

In further support of the argument that trial counsel should have requested a mistrial, Bradford notes the statement by Juror Smith. The juror’s exchange with the trial court was as follows:

Q... .And Ms. Smith, I wanted to ask you too, did anything happen during the trial yesterday or yesterday evening that you felt influenced you in any way or would prevent you from being a fair and impartial juror?
A. No.
Q. Okay. Everything’s okay?
A. Everything is okay. I think I can be pretty fair. But I think unless the young man talks—
Q. That is up to his lawyer. That’s ,up to his lawyer,
A. Oh, okay. I’ll be, you know a good juror either way.
A. All right. Good. Thank you so much.

Bradford contends that the statements reflect that “Ms. Smith believed that the burden of proof, to some degree, was upon Delmar Bradford to establish his innocence.” The juror was not traversed as to the meaning of her statement. |?4 Indeed, her statement was cut short by the trial court, and, subsequently she stated essentially that she would be “fair either way.” She did not state that she would be prejudiced against Bradford if he did not testify or that she could not fairly and impartially apply the law based on the evidence adduced at trial. Accordingly, there was no basis for requesting a mistrial.

Finally, Bradford suggests essentially that trial counsel was ineffective for failing to develop a winning trial strategy. However, Bradford does not give any examples of “winning” strategies. Furthermore, as aptly stated by the First Circuit Court of Appeal:

Under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. State v. Felde, 422 So.2d 370, 393 (La.1982), cert. denied, 461 U.S. 918, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983). The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. State v. Felde, 422 So.2d at 393.

State v. Folse (La.App. 1 Cir.1993), 623 So.2d 59, 71.

CONCLUSION:

Accordingly, for the reasons assigned above, we affirm the conviction and sentence.

AFFIRMED.

      . At the hearing on the motion for new trial counsel specifically withdrew defendant’s previous motion which had raised a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as a basis for new trial, noting that there was no indication that the State had obtained the records prior to trial.

      . In Powell, the defense attorney was given a day to prepare for trial, a circumstance which the Court found "made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial.” Id.., 104 S.Ct. at 2048.

      . Officer George Lee was convicted of multiple counts of forcible rape and second degree kidnapping in case no. 414-519 “K” in Orleans Parish Criminal District Court. The case is docketed on appeal in case number 2002-KA-1793.

      . Bradford also notes that the record does not reflect that trial counsel filed any discovery motions. However, the testimony from the motion for new trial reflects that trial counsel filed discovery motions under the previous case number. They are therefore not contained in the record before the Court. Bradford also raises the issue of counsel's failure to file a motion to quash the indictment as a basis for alleging that his trial counsel rendered ineffective assistance of counsel under Strickland v. Washington. That issue was fully discussed with respect to Assignment of Error No. 2.