author: | .BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Alfred Lee HUNTER, Appellant.
    No. 38,694-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Lewis A. Jones, Indigent Defender Board, Kenota Pulliam Johnson, Louisiana Appellate Project, for Appellant.
    Robert W. Levy, District Attorney, A. Shawn Alford, Clifford R. Strider, III, Laurie Whitten James, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and GASKINS, JJ.
   | .BROWN, C.J.

A unanimous 12-person jury convicted defendant, Alfred Lee Hunter, of the aggravated rape of his girlfriend’s nine-year-old daughter. Defendant was sentenced to life imprisonment without benefit. Defendant has appealed his conviction. Finding no error, we affirm defendant’s conviction and sentence.

Discussion

Sufficiency of the Evidence

Defendant argues that the state failed to prove every element of the offense of aggravated rape beyond a reasonable doubt. According to defendant, although the testimony of the victim alone can be sufficient, in the instant case, inconsistencies in her testimony as well as the other evidence presented created reasonable doubt concerning defendant’s guilt.

Applicable Legal Principles

La. R.S. 14:42 as it read at the time of the crime, February 14,1999, through May 6, 2000, provided in part that:

(A) Aggravated rape is a rape committed upon a person 65 years of age or older or where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

La. R.S. 14:41 defined rape as follows:

(A) Rape is the act of anal or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
1 g(B) Emission is not necessary, and any sexual penetration, vaginal or anal, however slight, is sufficient to complete the crime.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

13This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidenee evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, State ex rel. Gilliam v. State, 02-3090 (La.11/14/03), 858 So.2d 422.

The testimony of the victim alone is sufficient to convict a defendant. State v. Ponsell, 33,543 (La.App.2d Cir.08/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490. This is equally applicable to the testimony of sexual assault victims. State v. Rives, 407 So.2d 1195 (La.1981); State v. Thomas, 30,490 (La.App.2d Cir.04/08/98), 711 So.2d 808, writ denied, 99-0331 (La.07/02/99), 747 So.2d 8; State v. Free, 26,267 (La. App.2d Cir.09/21/94), 643 So.2d 767, unit denied, 94-2846 (La.03/10/95), 650 So.2d 1175; State v. Standifer, 513 So.2d 481 (La.App. 2d Cir.1987). Indeed, such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Ponsell, supra; State v. Watson, 32,203 (La.App.2d Cir.08/18/99), 743 So.2d 239, writ denied, 99-3014 (La.03/31/00), 759 So.2d 69; State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), writ denied, 597 So.2d 1027 (La.1992).

\ ¿Trial Testimony

Yolanda Holland testified that in May 2000, she was living in Ruston with her young son and nine-year-old daughter, the victim herein. Yolanda’s boyfriend, the 33-year-old defendant, also lived with them. On Monday, May 9, 2000, defendant told Yolanda to take the victim to the doctor because she had a bump on her “privacy.” Yolanda stated that she didn’t ask defendant how he knew that the victim had a bump on her “privacy.” Yolanda testified that the last time that she and defendant had sex was the day before, Sunday, May 8th. What was unusual to Yolanda was that defendant told her that they couldn’t have sex for long because he had a bump on his “D-I-C-K.”

That Monday, defendant dropped Yolanda and the victim off at the Green Clinic. Dr. David McGehee, a pediatrician, examined the victim, and observed numerous lesions and ulcerations in the child’s vaginal area. Dr. McGehee informed Yolanda that the victim was suffering from an initial outbreak of genital herpes. Yolanda stated that she panicked upon learning this, and the victim began crying. Defendant did not return to the clinic to pick up Yolanda and the victim as planned, so they walked from the clinic to Yolanda’s mother’s house. Yolanda told her mother about their visit to the clinic and the doctor’s diagnosis. Yolanda’s sister, Misty, questioned the victim about how she got herpes, and the victim told her that, “Alfred messed with me.” The victim did not tell her mother what had happened because she thought that she would get into trouble. Yolanda filed a complaint with the Ruston Police Department that same day.

| sRuston Police Officers Gerald Jenkins and Stephen Beard investigated the sexual abuse complaint. Officer Jenkins testified that he interviewed Yolanda and questioned the victim, who appeared to be in pain and walked in a slightly crouched position. The victim gave two statements to Officer Jenkins and identified defendant as her assailant. Officer Jenkins noted that these statements were consistent. The officers then made contact with defendant. After being advised of his rights, defendant denied the allegations made by the victim during questioning by the officers. At that point, defendant was not under arrest. The investigation continued and the officers learned that the 9-year-old victim tested positive for a sexually transmitted disease, genital herpes types I and II. The officers then obtained a search warrant for the seizure of defendant’s blood, hair, and saliva, as well as samples from his genitalia. Defendant would not voluntarily submit to the testing, so the warrant was executed by Dr. Thomas Drew Carey, a dermatologist. Samples were taken from defendant’s penis, and photographs of an apparent scar or lesion were made. Cultures confirmed that defendant had genital herpes, the same types for which the 9-year-old victim had tested positive.

The victim identified defendant in court, and. stated that the last time, he had “messed” with her was the same weekend that she went to the doctor. Defendant came into her room and woke her up. He pulled down her panties and shorts and began touching her “butt” with his hand. Defendant then put his “wing wing” (her term for “penis”) into her “butt.” The victim didn’t remember how long this took, but when defendant got up, she saw | fi“white stuff’ on her “privacy part,” which she later wiped off with a tissue. Defendant then went into the living room, turned off the television and lights, and went to bed. The victim stated that she didn’t tell anyone what defendant had done until they got back from the doctor. She didn’t tell her mother because she didn’t want to get in trouble.

On cross-examination, the victim stated that defendant did not put his “wing wing” anywhere except in her “butt.” When asked if she was sure that defendant put his “wing wing” in her “butt,” or whether he just left it outside, the victim stated that it-was put in her “butt.” She stated that she was certain of this fact. On redirect, the victim stated that she knew what it felt like to have something put in her “butt.” She then reiterated that defendant put his “wing wing” in her “butt hole.”

Dr. David McGehee, pediatrician,- testified regarding his examination of the victim and the results of the medical tests conducted. He observed that the victim had numerous, uniform lesions and ulcerations in her vaginal area. Dr. McGehee stated that he was medically certain that the victim was experiencing her first outbreak of herpes at the time of the May 9, 2000, examination because of the characterization of the lesions on her labia. Specifically, Dr. McGehee opined that the victim had been infected within the last three or four days. It1 was the pediatrician’s opinion that the victim got herpes from sexual contact with an infected individual. Dr; McGehee testified that the test results showed that the victim was positive for herpes simplex types I and II. The results also showed that the victim was positive for IgG, immunoglobulin type G, which is-usually associated with past |7infection. Dr. McGehee acknowledged that this result was inconsistent with his opinion that the victim was experiencing her initial outbreak of herpes, but noted that a possible reason that her result was positive for IgG was cross-reactivity between types I and II herpes. Dr. McGehee acknowledged that the location of the lesions on the victim’s labia was inconsistent with her claim of anal penetration because the lesions were not on the anus. He emphasized, however, that the location of the lesions did not exclude the fact that the victim had been anally penetrated by someone with active lesions. Dr. McGehee noted that while the victim’s exam showed no physical evidence of anal intercpurse, most of the children he has examined who have been anally abused have showed no physical signs of such abuse. He pointed out that the rubbing of an infected penis in a vaginal area, • particularly the external genitalia, does transmit herpes and was consistent with his findings. Dr. McGehee testified that the risk of catching herpes through an indirect method, i.e., from a towel, toilet seat or bathtub, is minuscule.

Dr. Thomas Drew Carey, a dermatologist; testified at trial that the incubation period from exposure to a herpes blister to the development of physical symptoms of herpes is from two days to a week. According to Dr. Carey, the herpes virus is spread from one person to another by direct contact, either by skin to skin or contact between mucous membranes. Dr. Carey stated that the fact that a multitude of herpes blisters was found on the victim’s labia was not inconsistent with her allegations of anal intercourse because that area is the perfect environment for the blisters to multiply and |Rspread very rapidly. While Dr. Carey agreed that, in theory, a person could contract herpes by using ah infected' person’s towel or washcloth, he opined that such a situation was extremely unlikely. Dr. Carey testified that he has not ever seen any support for such a theory of transmission.

Analysis

Our review of the record leads us to conclude that the evidence, viewed in the light most favorable to upholding the jury’s verdict as required by Jackson v. Virginia, supra, was sufficient to support the jury’s conclusion that defendant was guilty of every essential element of the offense of aggravated rape. The prosecution introduced undisputed evidence .as to the defendant’s and victim’s ages at the time of the offense. Direct evidence in this case included the testimony of the victim, which alone would have been sufficient to convict defendant. See State v. Ponsell, supra. The victim clearly and unequivocally identified defendant in court as the person who put his penis “in her butt.” See State v. Rives, supra; State v. Thom as, supra; State v. Free, supra; State v. Standifer, supra. The victim’s testimony was corroborated by expert testimony that the victim contracted genital herpes from sexual contact with an infected individual. It was stipulated that defendant had tested positive for genital herpes. Defendant’s hypothesis that the 9-year-old victim could have contracted herpes from bath linens was rejected by the jury. We cannot question this conclusion. This assignment of error is without merit.

| siRemarks Made by Prosecutor During Closing Arguments

According to defendant, the trial court committed error when it failed to admonish the jury following the remark made by the prosecutor during closing argument to the effect that defendant had not returned home “to this date.” Defendant submits that this statement led the jury to believe that he had not returned home for three years, and was deliberately made inasmuch as the state knew that defendant had been in custody for that entire period of time. When defense counsel made a motion that the jury be admonished, the trial court denied the request. Because the trial court failed to fashion an adequate remedy, defendant’s right to a fair trial was “fatally tainted.”

Applicable Legal Principles

La. C. Cr. P. art. 771 provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1)when the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2)when the remark of comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on the motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

La. C. Cr. P. art. 770 provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
lin(l) race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) the failure of the defendant to testify in his own defense; or
(4) the refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Excerpts from State’s Closing Argument, including Objection and Admonishment

During the prosecutor’s closing argument, she commented that defendant knew the “gig” (sic) was up when Dr. McGehee examined the victim. The state continued:

Prosecutor: He. says, “well,’they didn’t call me to come pick them up.” So why didn’t he come home that night or the next night or the next night? Why is it 'that they did not see Alfred Hunter from the time he dropped them off at Green Clinic until yesterday? ‘Cause he’s innocent?
Defense: Your Honor, I’m going to object. May we approach? ■
The Court: You had an objection that you wished to make. Is that correct?
Defense: I do, Your Honor. Your Hon- or, Ms. Alford has argued to the jury that they should conclude that Mr. Hunter is guilty because once he dropped them off at Green Clinic, he didn’t go pick them up and he didn’t go home that night or the next night or the next night, and in fact has never gone home and they have never seen him until yesterday in court. My objection is Ms. Alford knows very well that Mr. Hunter has been in jail for over three years now on this charge. She knows he couldn’t possibly return home, and the impression she is giving the jury is that he has willingly not returned to that home because he believes himself guilty and that he was caught when they went to Green Clinic.
I^The Court: All right. What is your proposed, remedy?
■Defense: I would ask that you instruct the jury to disregard any reference that has been made to Mr. Hunter not returning to that home.
The Court: Does either side have an objection to the Court instructing the jury to disregard any inference that he has not willingly referred — returned to the home since the date of arrest?
Prosecutor: No, Your Honor.
Defense: Your Honor, I do.
Prosecutor: He was arrested on May 23, by the way.
Defense: There is no evidence of that before the jury. I mean, they don’t know that he wasn’t arrested until a year later. All they can. — ■
The Court: Well, I think that the testi- . mony was from Officer Jenkins that after the lab reports had been completed that he was then arrested, which the impression .1 had — and I know nothing about this case prior to hearing the testimony. The impression that I was left with was that approximately ten days to two weeks after the allegations arose, he was taken into custody, and I cannot put my finger on exactly who said what, but that’s been the general tenor of the testimony. So I will give any instruction that does not mislead the jury and is accurate of the facts, which means that I would suggest that the instruction be that they should disregard any inference that he has not — that he chose willingly not to return to the residence from ... and you give me the date of the arrest and I’ll give them that date, but I don’t know how else I can repair it. I am open to hearing some other method, but that’s accurate insofar as the facts are concerned and removes the implication that you’re concerned about.
Defense: Your Honor, I don’t recall Officer Jenkins testifying as to the date of arrest. I just don’t recall that.
The Court: No. But he did testify that after the lab reports came in that he then took him into custody or at least after the doctor had done the examination that there was — and it |12doesn’t have to be a specific date necessarily because the date was not testified to, but I’d certainly give them that instruction.
Defense: I still think it’s misleading, Your Honor, and I think it is too prejudicial to the defendant.
The Court: All right. The objection would be noted. Do you have a specific, again, wording for an instruction that you want?
Defense: That the jury be instructed to disregard any argument or reference to the fact that Mr. Hunter willingly refused to return to that home after May 9.
The Court: All right. That would be an — -that would not be a truthful statement to the jury, and accordingly, I can’t give that, because he was not in custody until sometime later. I will give an instruction that they are to disregard any inference that he’s willingly absent or had no contact with the Hollands after the report was received from the doctor. That’s the best I can do.
Defense: Thanks Your Honor. We’d ask that our objection be noted. Your Honor, are you going to give that instruction before we proceed?
The Court: Yes, sir.

(The following proceedings were had in the presence and hearing of the jury.)

The Court: The record should note that all twelve persons on the jury are now seated in the jury box and the two alternatives are there as well. Ladies and gentlemen, you are to disregard any reference made by Ms. Alford or any inference that you may draw therefrom that Mr. Hunter had no contact with the Hollands, ... after the receipt of medical information from the physicians. You may proceed.
Prosecutor: Thank you, Your Honor. Alfred Hunter told Yolanda to take [victim] to Dr. McGehee on May the 9th. He dropped them off. He failed to pick them up. He failed to come home. He didn’t come home that night, the next night, the next night, the next night, the next night....
11sDefense: Your Honor, I’m going to object. Your Honor....

(Here followed a discussion off the record.)

Analysis

Initially, this court notes that appellate defense counsel has misstated some of the facts pertaining to her argument on this issue. In brief, she correctly asserted that, following a defense objection, a request was made that the jury be admonished. She inaccurately states, however, that the trial court denied this request. A clear reading of the transcript excerpts quoted above reflects that trial counsel’s request for an admonishment was granted; the judge simply refused to give the exact admonishment requested by defense counsel inasmuch as it was an inaccurate statement of the facts presented at trial. Defendant’s attorney asked that the jury be instructed to disregard any reference to the fact that defendant willingly refused to return to the home after May 9th. The trial court refused, because defendant was not taken into custody until sometime later. The admonishment given by the trial court was that the jury disregard any inference that defendant willingly had no contact with the victim and her mother after receipt of medical information from the pediatrician.

In the instant case, the comments made by the prosecutor do not fall within the provisions of La. C. Cr. P. art. 770 and thus an automatic mistrial was not warranted. The record reveals that the trial court complied with La. C. Cr. P. art. 771. Upon the request of defendant, the trial court immediately admonished the jury to disregard the remarks made by the prosecuting attorney during closing argument as irrelevant or immaterial. 114There is no indication in the record that these comments influenced the jury or contributed to their verdict in any way. See State v. Green, 416 So.2d 539 (La.1982); State v. Uloho, 04-55 (La.App. 5th Cir.05/26/04), 875 So.2d 918. This assignment of error lacks merit.

Conclusion

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

      . La. R.S. 14:41 and 42 were among the statutes amended by Acts 2001, No. 301, § 1, which in part added oral sexual intercourse to the crimes of rape and aggravated rape.


source: Caselaw Access Project

author: liWILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Billy Lynn HENDRICKS, Appellant.
    No. 38,945-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Kenota P. Johnson, for Appellant.
    Paul J. Carmouche, District Attorney, Shenequa Grey, Tommy J. Johnson, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   liWILLIAMS, J.

The defendant, Billy Lynn Hendricks, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. After a jury trial, the defendant was found guilty as charged. He was sentenced to serve life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence, with credit for time served. Defendant’s motions for a new trial and a post-verdict judgment of acquittal were denied.

The defendant appeals his conviction, urging the following assignments of error: (1) the state failed to present sufficient evidence to support a second degree murder conviction; (2) the autopsy photographs were improperly admitted into evidence because their prejudicial effect outweighed any probative value; and (3) the trial court erred in overruling the defense’s objection to the state’s use of demonstrative evidence during its closing argument. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

On December 8, 2001, the defendant strangled his biological mother to death in her home in Shreveport, Louisiana. After the murder, the defendant drove his mother’s car to Edmond, Oklahoma, where his adoptive family resides. The next day, Elizabeth Buck, the defendant’s adoptive sister, contacted the Edmond police.

Officer Trint Trip of the Edmond Police Department responded to Mrs. Buck’s telephone call. He testified that the defendant told him he had killed his mother in Shreveport and he had driven her ear from Shreveport | gto Edmond. When Officer Trip asked him about specific details, the defendant stated that he and his mother had an argument over money, his mother came toward him, he tried to push her off and then he choked her (which he demonstrated with hand gestures). According to Officer Trip, the defendant also stated that while he was choking his mother, they struggled and fell on the floor. The defendant informed the officer that his mother stopped breathing and he attempted to assist her with CPR, but was unsuccessful. He stated that he panicked and left the house in his mother’s car. Edmond police officers then contacted the Caddo Parish Sheriffs Department. When the Caddo Parish deputies arrived at the victim’s residence, they found her body on the living room floor. The defendant was taken into custody by the Edmond police and later transferred to the custody of the Caddo Parish Sheriffs Department.

A unanimous jury found the defendant guilty as charged of second degree murder. He was sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence. After his motions for new trial and post-verdict judgment of acquittal were denied, the defendant appealed.

| .DISCUSSION

Sufficiency of the Evidence

The defendant contends the state failed to present sufficient evidence to support his conviction. He admits that he is guilty of his mother’s death; however, he argues that he should have been convicted in accordance with LSA-C.Cr.P. art. 814 of the responsive verdict of manslaughter, a violation of LSA-R.S. 14:31. The defendant asserts that he killed the victim in “sudden passion” or “heat of blood” during a fight; thus, he did not have the requisite specific intent to kill or inflict great bodily harm.

The standard of appellate review for a sufficiency of the evidence claim is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150 and 2001-2087 (La.4/19/02), 813 So.2d 424. Thus, for a second degree murder conviction, the state was required to prove beyond a reasonable doubt that the defendant killed his mother and that he had the specific intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10. Specific intent need not be proven as a fact, but may be inferred from the | circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (1982); State v. Van Sales, 38,138 (La.App.2d Cir.3/3/04), 867 So.2d 849.

Manslaughter is a homicide which would be second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. LSA-R.S. 14:31. “Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (1986). In order to be entitled to the lesser verdict of manslaughter, the defendant was required to establish by the preponderance of the evidence that he killed his mother in a “sudden passion” or “heat of blood.” State v. Lombard, supra; State v. Brooks, 36,855 (La.App.2d Cir.3/5/03), 839 So.2d 1075, writ denied, 2003-0974 (La.11/7/03), 857 So.2d 517.

The record shows that the state met its burden of proving beyond a reasonable doubt that the defendant was guilty of second degree murder. The defendant confessed that he choked his mother to death. Moreover, the state presented testimony to prove that the defendant had the requisite specific intent at the time of the murder. Caddo Parish Sheriffs Detective Marianna McClure testified that the defendant asked if a knife blade was found in his mother and claimed that he had also swung a knife at her. Crystal Gibson, the victim’s neighbor, testified that she heard the defendant |sand his mother argue all the time, frequently about money. Gibson recalled an incident, two to three weeks before the victim’s death, where the defendant pushed his mother into her car and slapped her, knocking her to the ground. Lynda Gail Coggins, Gibson’s mother and the victim’s neighbor, testified that approximately one or two days before the victim was killed, the victim told her that the defendant had slapped her and picked up a kitchen knife. James Gadson, the victim’s friend, testified that about two or three nights before she was killed, the victim told him that the defendant had choked her. Finally, Dr. George McCormick, II, the Caddo Parish coroner, testified that the victim’s death was caused by the loss of oxygen due to manual strangulation, that bruises on the victim’s body suggested a struggle while she was being choked and that there was no evidence to indicate that the defendant had performed CPR on the victim.

The defendant failed to prove by a preponderance of the evidence that he was immediately provoked to the extent and with the effect necessary to deprive an average person of his self-control. Thus, the defendant did not prove that the jury should have returned the responsive verdict of manslaughter. After a thorough review of this record, we conclude that there was ample evidence to support the defendant’s conviction of second degree murder. This assignment of error lacks merit.

Admission of Autopsy Photographs

The defendant contends the autopsy photographs (State’s Exhibits S-65 to S-71) were improperly admitted into evidence because their prejudicial effect outweighed any probative value. Specifically, the ^defendant asserts that the photographs were gruesome, overbearing and redundant. The trial court concluded that the probative value of the photographs outweighed their prejudicial effect. The court denied the defense’s motion in limine to restrict or prohibit the use of the photographs.

The test of admissibility for allegedly gruesome photographs is whether the probative value of the photographs outweighs the probable prejudicial effect that may result from their display to the jury. State v. Lindsey, 404 So.2d 466 (La.1981). Photographs which illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place or thing depicted are generally admissible. State v. Lindsey, supra; State v. Ruffins, 32,870 (La.App.2d Cir.12/10/99), 748 So.2d 614; State v. Washington, 30,866 (La.App.2d Cir.8/19/98), 716 So.2d 936, writ denied, 1998-2473 (La.1/8/99), 734 So.2d 1229. A trial court’s ruling concerning the admissibility of photographs will not be disturbed on appeal unless the prejudicial effect of the photographs, in fact, clearly outweighs the probative value. State v. Lindsey, supra.

In State v. Morris, 245 La. 175, 157 So.2d 728 (1963), the sole issue during the murder trial was whether the killing was intentional or whether it was committed in the heat of passion. The Louisiana Supreme Court held that it was reversible error for the trial court to allow the admission of photographs taken while an autopsy was in progress. The photographs showed the lengthy incision of the autopsy, equipment withdrawing the body cavity’s bloody contents, and the coroner and his assistant holding some of the victim’s organs.

|vThe photographs in the present case are distinguishable from those admitted into evidence in State v. Morris, supra. Here, the autopsy photographs show the victim’s injuries as well as postmortem decomposition (which the coroner instructed the jury to disregard). The photographs do not show excessive blood or exposed body cavities. Furthermore, the photographs are not redundant. Although the majority of the photographs focus on the face and upper body, each photograph shows a different view or a particular aspect of the victim’s body.

The state utilized the photographs to assist the jury in understanding the coroner’s testimony with regard to the cause of death, bruises on the victim’s body evidencing a beating, the victim’s possible struggle and the lack of evidence that CPR had been attempted. Thus, the probative value of the photographs clearly outweighed any prejudicial effect that may have resulted from their display to the jury.

Consequently, we find no abuse of the trial court’s discretion in admitting the autopsy photographs into evidence. This assignment of error lacks merit.

Demonstrative Evidence in Closing Argument

Finally, the defendant contends the state improperly introduced new evidence during closing argument in violation of LSA-C.Cr.P. art. 774. The defendant argues that the state’s use of a clock to demonstrate the passage of one minute, the state’s theory of the estimated time period necessary for death by strangulation, constituted the improper introduction of demonstrative evidence during its closing argument.

18LSA-C.Cr.P. art. 774 provides that closing argument must be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom and to the law applicable to the case. However, if the closing argument is expressly or impliedly based upon the evidence, then no error is committed. State v. Lockett, 332 So.2d 443 (La.1976).

In the instant case, the state’s use of a clock to display the lapse of one minute was not new evidence. During the trial, the defense cross-examined Dr. McCormick with regard to whether death by strangulation could result in one minute or less. The coroner responded that it was possible. A review of the record shows that the state incorporated this issue into its closing argument, adding its description of the victim’s death during the passing minute. Thus, the state’s use of the clock to illustrate the lapse of one minute was within the scope of the evidence previously admitted during the trial. Therefore, we conclude that the state did not improperly introduce demonstrative evidence during its closing argument. This assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.

      . On the other hand, Mrs. Buck testified that the defendant told her and Officer Trip that he and his mother had been drinking, they got into a fight, he choked his mother and then passed out. Mrs. Buck stated that the defendant said when he regained consciousness, he checked for his mother’s pulse and attempted to perform CPR on her. Jim Buck, Mrs. Buck's husband, testified that the defendant also told his adoptive mother a similar version of the events of the homicide.


author: I,STEWART, J.

text:
    Sheena Kim WHITE, Plaintiff-Appellant v. MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD OF the CITY OF SHREVEPORT, Defendant-Appellee.
    No. 38,942-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Billy R. Casey, Shreveport, for Appellant.
    Ramon Lafiette, City Attorney, Edward F. Jones, Assistant City Attorney, for Ap-pellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   I,STEWART, J.

Sheena Kim White (“White”) appeals a judgment rendered by the First Judicial District Court on December 17, 2003, affirming a February 12, 2003, decision of the Shreveport Municipal Fire and Police Civil Service Board (“Board”) which determined that White’s termination from the Shreveport Police Department was in good faith and for legal cause. For the following reasons, we reverse the termination and render judgment awarding her full pay and employment benefits from the date of reinstatement together with legal interest.

FACTS

On July 12, 2002, White, an eleven-year veteran of the Shreveport Police Department, entered the Shreveport Police Department’s property room in between morning and afternoon appearances at the Shreveport City Court where she had been subpoenaed to testify. While off-duty, she went to the property room to pick up a bullet proof vest that she had requested a few days earlier.

The property room is located on Texas Street in downtown Shreveport. According to the testimony, visitors enter from the street through a glass door into a reception area. On the opposite wall is a sliding glass window, and to the right of the window is a door which remains locked. Beyond the door is a uniform room where used equipment is kept. Officers are allowed to be in this area unsupervised and to select used items they need. While there was varying testimony about the procedure used in obtaining these items, then-Lieutenant David Crawford, the supervisor of | ¡¿he area, testified that officers were welcome to any of the items in that room, and no notation was made of the items they took. Beyond the uniform room is a second area where other property and evidence are kept and which officers are not allowed to enter unescorted.

When White went to the property room on the day in question, she was attended to by Crawford. Crawford helped White with the issuance of her new vest in the restricted area of the property room. While trying on her new vest, White asked whether she could get another badge cover because hers was worn out. Crawford indicated that he had some brand new ones but that they had been earmarked for the new recruits. However, he located a used one and gave it to White for use in the interim. Crawford then escorted White back to the unrestricted area of the property room before turning his attention to other business. It appears undisputed that as White walked out, she picked up a second used badge cover which was laying on a computer desk in the unrestricted area. She did not ask permission nor inform anyone that she was taking it.

When Crawford noticed that the used badge cover was missing, he tried to contact White via e-mail on her patrol car computer. When he received no response, he reported the incident to Lieutenant J.C. Davis, the area commander at the time of the incident. Later that afternoon, White reported for roll call where Lieutenant Davis asked her to report to his office |3once roll call was over. When White reported to Davis’ office, Crawford was present and asked White where were the badge covers. She indicated they were in her car. Crawford followed White out to her car where White retrieved a total of three badge covers from her trunk and from the console inside the vehicle. There is some dispute as to whether all three badge covers were turned over to Crawford or only two, but there appears to be no dispute that at the very least Crawford received the two badge covers which White had obtained from the property room earlier that day. White never denied taking the extra badge cover.

' White was placed on administrative leave and the matter was turned over to Internal Affairs for investigation. After conducting an investigation,- Sgt. Larry Cunningham obtained a warrant for White’s arrest on the charge of unauthorized use of a movable. White was informed of the warrant and offered the courtesy of turning herself in at the Caddo Correctional Center, which- she did. The charges wqre eventually dismissed..

Thereafter, a preliminary disciplinary conference was conducted. Chief Roberts concluded that White’s conduct constituted a violation of the law. In reviewing her file, he also determined that she had been disciplined on one prior occasion, specifically in 1998. While she was originally terminated for that conduct, the Board ultimately reinstated her and amended the disciplinary action to a 90-day suspension without pay. The details ,of the conduct leading to that disciplinary action are not contained in |4the record. Consequently, Chief Roberts concluded that the present violation coupled with the prior disciplinary action warranted White’s termination.

White appealed the termination to, the ■Board. .A hearing was held on February 12, 2003, after which the Board voted 4-3 to uphold the appointing authority’s termination of White. White appealed to the First Judicial District Court which conducted a review of the record and affirmed the Board’s decision. The instant appeal followed,

DISCUSSION

La.- R.S. 33:2500 provides the circumstances under which police department civil service employees may be subject to disciplinary action by their appointing authority. Chief Roberts, as the appointing authority for the Shreveport Police Department, was authorized under La. R.S. 33:2500 to terminate or otherwise discipline White for any of the grounds enumerated therein.

If the civil servant wants to appeal the action of the appointing authority, he has the right to demand in writing within 15 days of the action a hearing and investigation by the civil service board to determine the reasonableness of the action. The Board is then to allow the appointing authority and the civil servant a hearing in which they are to be afforded the right to be heard and allowed to present evidence to show that the action was or was not taken in good faith and for cause. La. R.S. 33:2501.

If, in reviewing the disciplinary actions taken by the appointing authority against civil servants, the Board determines that the action was |5taken in good faith and for one of the causes delineated in La. R.S. 33:2500, it should affirm the disciplinary action. Moreover, a civil service board’s determination, if made in good faith and for legal cause, should not be disturbed by the judiciary on appeal. La. R.S. 33:2501 E(3); Walsworth v. Municipal Fire & Police Civil Service Bd. of City of Shreveport, 567 So.2d 712 (La.App. 2d Cir.1990). However, the dismissal cannot be said to have been for “cause” if the evidence fails to show that it was necessary for the efficiency and orderly operation of the police department, or that it was needed to avoid some detriment to that department or to the city. Pearson v. Municipal Fire and Police Civil Service, 609 So.2d 1038 (La.App. 2d Cir.1992).

Moreover, a trial court is not free to substitute its opinion as to appropriate disciplinary action when it is shown that officers violated a valid departmental regulation, and that disciplinary action was necessary for the efficiency of the department and to avoid detriment to the public. The decision of the Board will not be overturned on appeal, even as to the severity of the discipline, unless the record reveals an abuse of discretion, or an insufficiency of supporting evidence. McIntosh v. Monroe Municipal Fire and Police Civil Service Board, 389 So.2d 410 (La.App. 2d Cir.1980).

After reviewing the record in its entirety we find that there is insufficient evidence to support the finding that White engaged in any conduct which would rise to the level of the violations enumerated in La. R.S. 33:2500 as justifying disciplinary action. The evidence indicates that | ¿when White asked to be provided a new badge cover, she was informed that all the new ones were earmarked for new recruits. Instead, she was given a used one. On her way out, and while in an area containing used equipment which officers were by all accounts welcome to take without accountability, White picked up a newer, but still used, badge cover from a computer desk.

If then-Lieutenant Crawford was correct in his testimony that he informed White she could not have a new badge cover, White’s action in picking up the used badge cover from the unrestricted area would not have been in violation of that directive. There is no indication in the record that White was ever told that the particular badge cover she took was one that Crawford had earmarked for a new recruit. Accordingly, while Crawford may have meant for White not to take that badge cover, it appears very likely from the evidence presented that she was not aware of it and simply picked up the item from an area where officers were customarily allowed to help themselves without any formal accountability.

While we do not find it impossible to believe that White may have engaged in the conduct of which she was accused, we find that the appointing authority failed to show by a preponderance of the evidence that she did in fact engage in that conduct. Having failed to show that she engaged in the conduct in the first place, the Board could not properly have found that the conduct would interfere with the orderly and efficient operation of the police department.

CONCLUSION

Accordingly, we reverse White’s termination and render judgment reinstating her employment retroactive to the date of her original |7termination and awarding her full pay and benefits from the date of her reinstatement, together with legal interest thereon until paid. The cost of this appeal is to be borne by the City.

REVERSED AND RENDERED.

      . Crawford testified that he was a Lieutenant at the time of the incident in question but was subsequently promoted to Captain. He has since retired from the Shreveport Police Department.

      . White testified that because she was off-duty she did not have her patrol car computer on and, thus, was unaware that Crawford had attempted to e-mail her.

      . While Crawford testified that the confrontation with White happened on the day after she went to the property room, his testimony is uncorroborated. All other witnesses familiar with the events were in general agreement that all the pertinent events transpired on the same day.


author: hMOORE, J.

text:
    STATE of Louisiana, Appellee v. Lemarcus MORRIS, Appellant.
    No. 38,928-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Paul J. Carmouche, District Attorney, Hugo Holland, Jr., J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and MOORE, JJ.
   hMOORE, J.

LeMarcus Morris was indicted on two counts of first degree murder arising from an armed robbery with two fatal shootings in northern Caddo Parish. Pursuant to a plea bargain, he pled guilty to one count of first degree murder, one count of second degree murder and one count of armed robbery, reserving his right to appeal the denial of his motion to suppress his recorded statement. As part of the plea bargain, Morris received concurrent life sentences for the homicide charges and a consecutive 20-year hard-labor term for the armed robbery charge. He now appeals, advancing one assignment of error through counsel and five assignments pro se. For the reasons expressed, we affirm.

Factual Background

On the evening of December 14, 2001, Morris and his cousin, DeMarcus Morris (hereinafter “Mark”), along with 16-year-old Willie Johnson, planned to rob Strickland’s Grocery on Hwy. 71 in Hosston, Louisiana. Mark was already armed; after rounding up two more handguns (one from a relative and the other from an abandoned trailer), the three put on hooded jackets and went to Strickland’s about 10 p.m. A witness, David Green, saw the men standing outside the store; although they had hoods on their heads and pantyhose over their faces, he recognized them from the neighborhood. He asked what they were doing; they replied they were going to rob the place and warned him to leave “if he knew what was good for him.” Green left and went to tell one of Johnson’s relatives what was afoot.

12While Johnson stood lookout, Morris and Mark entered the store. Mark fired several rounds at the cashier, Allen Bounds, hitting him twice in the face and once in the chest. Morris fired two shots, but neither hit the victim. The store’s owner (and Bounds’s aunt), Cynthia Ran-gel, heard the gunfire and emerged from the residential area in the back of the building. Mark shot her once in the neck.

Ms. Rangel’s son, Chris, was also in the rear of the store when he heard the gunshots. He came out and saw one of the men running out while the other struggled to remove the cash register from the counter. After the second man left, Chris grabbed a pistol from under the counter and ran outside, but the two men had already left. He then called 911. Ms. Rangel was pronounced dead at the scene; Bounds was DOA at North Caddo Memorial Hospital.

The three robbers fled to the abandoned trailer where they changed clothes and divided the contents of the cash register. They also paid at least two people to keep silent about the robbery.

David Green, who had seen the three men standing outside the store shortly before the robbery, gave their names to sheriffs deputies. Soon after receiving this information, Deputies Bradford and Morgan found Johnson hiding under a bed at his grandmother’s house in Hosston. In the presence of his father, Johnson gave a statement admitting that he, Mark and Morris had planned and carried out the robbery. Early the next morning, Deputies Morgan, Long and Duncan spotted Mark and Morris walking along Pine Hill Road in Shreveport. Both suspects fled; Dep. Morgan ran 13down Morris in a wooded field, arrested him and gave him his Miranda rights. A short while later, Dep. Long arrested Mark at his mother’s house. Both suspects were taken to the Vivian Substation for questioning. Both gave recorded statements admitting their roles in the armed robbery.

Morris was indicted on two counts of first degree murder. He filed a motion to suppress his recorded statement, which the district court denied after a hearing in October 2003. He then agreed to plead guilty to an amended indictment charging him as a principal to the first degree murder of Ms. Rangel and second degree murder of Bounds, and with the armed robbery of Bounds. Morris reserved his right to appeal the denial of his motion to suppress, pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The district court sentenced him in accordance with the plea agreement, to concurrent life terms for the homicides and a consecutive term of 20 years at hard labor, without benefits, for the armed robbery. He has appealed.

Discussion: Motion to Suppress

Through appellate counsel, Morris urges that he did not knowingly waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and that his statement was involuntary because of psychological coercion and false promises made by his interrogators, in violation of Mincey v. Arizona, 434 U.S. 1343, 98 S.Ct. 23, 54 L.Ed.2d 56 (1977), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). He contends that he was taken into custody at 8:20 a.m. and interrogated for four hours before signing a waiver of rights form at 12:15 p.m.; he was handcuffed during this time and denied water and access |4to a telephone or toilet; he was never advised that his statement could be used against him, and in fact was promised he could get less than life in prison if he gave a statement. He urges that the totality of these facts made his statement inadmissible. By pro se brief, Morris reiterates these claims, adding that his arrest was illegal because deputies did not obtain a warrant and lacked probable cause to arrest; he actually asserted his Miranda rights but officers continued to question him; and as a 17-year-old, inexperienced with the legal system, he did not grasp the significance of waiving his rights and incriminating himself.

The state responds that Morris’s own testimony at the motion to suppress undermines most of his factual claims, particularly that he was interrogated for hours before he signed the waiver at 12:15 p.m. The state also cites the detectives’ testimony that the four-hour delay occurred while they were questioning Mark, the other suspect. Finally, the state urges that nothing in Morris’s recorded statement or the testimony adduced at the hearing supports the claim that deputies coerced his statement.

The Louisiana Supreme Court recently summarized the law governing the admissibility of confessions:

As a general matter, before a confession may be admitted into evidence, the State has the burden of affirmatively showing that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements, or promises. La. R.S. 15:451; State v. West, 408 So.2d 1302, 1307 (La.1982); State v. Dewey, 408 So.2d 1255, 1258 (La.1982). Furthermore, if the statement was made during custodial interrogation, the state must show that the defendant was advised of his constitutional rights. Miranda v. Arizona, [supra ]; State v. Petterway, 403 So.2d 1157 (La.1981); State v. Sonnier, 379 So.2d 1336, 1355 (La.1979). The admissibility of a confession is a question for the trial .judge, |fiwhose conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility should not be overturned on appeal unless they are not supported by the evidence. State v. Jackson, 381 So.2d 485, 487 (La.1980).

State v. Thibodeaux, 98-1673 (La.9/8/99), p. 6, 750 So.2d 916, 922.

Morris’s most developed claim is that he was interrogated for four hours before he signed the waiver of rights form and gave his statement. The record, however, is devoid of evidence to this effect. Prior to the arrest, Dep. Morgan had to chase Morris through a wooded field; although winded from the pursuit, he immediately gave Morris his Miranda rights from memory. On direct examination by his own counsel, Morris stated that deputies initially asked him where the other gun was, but he denied that they interrogated him. Dep. Bradford testified that while he and Dep. Long were questioning Mark, they placed Morris in the break room for several hours. Morris testified that during this time he was refused food, water and use of the restroom; however, he could not recall which deputies denied his requests. By contrast, Dep. Duncan testified that officers normally offer suspects “water, coffee, Coke, restroom if they need it,” but Morris never asked for any of these and did not appear uncomfortable. Dep. Long narrated a videotape of the area around the break room, showing that the restroom and a water fountain were only steps from the door. He also testified that Morris received water in the break room and was allowed to use the restroom before they left the substation.

Morris also contends that his waiver was vitiated by promises. On direct examination, he conceded that in his recorded statement, he explicitly | r,denied that he had been “promised anything or threatened.” However, he testified that he was responding only to the second part of the question; he had not been threatened, but he had been promised less than a life sentence if he gave a statement. By contrast, Dep. Bradford testified there was never any discussion about possible penalties for the crimes, and there is not one scintilla of record evidence to support Morris’s claim. .

Morris’s other major factual claim is that officers arrested him without a warrant and without probable cause, thus tainting the statement he subsequently made. However, an eyewitness had seen Morris and his two associates standing outside the store shortly before the crimes, had spoken to them and learned of their intent to commit a robbery, and had provided .the suspects’ names to sheriffs deputies; one of the suspects, Willie Johnson, had already given a statement incriminating Morris; and Morris bolted at the sight of the deputies’ car.. These facts constituted probable cause, as they were within the arresting officers’ knowledge, were based on reasonable and trustworthy information, and would justify a man of average caution in the belief that Morris had committed an offense. La. C. Cr. P. art. 213(3); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Ceaser, 2002-3021 (La.10/21/03), 859 So.2d 639.

The rest of Morris’s factual claims are patently insubstantial. Morris testified that prior to his arrest, he had smoked “eight or nine blunts,” thus impairing his capacity to waive his Miranda rights. In his recorded statement, however, he denied smoking anything “more than cigarettes,” and Dep. Bradford testified that he did not appear intoxicated or impaired. ^Because Morris had reached the age of 17, he was not entitled to special juvenile procedures that he suggests were required, such as having a parent or adult guardian present during questioning. La. Ch. C. 804(1). Dep. Bradford testified that Morns did not ask to use the phone, and it was not denied. Contrary to Morris’s suggestion, officers are not required to offer the use of a phone. La. C. Cr. P. art. 230; State v. Cripps, 259 La. 403, 250 So.2d 382 (1971). Finally, although he vigorously urges by pro se brief that he asserted his Miranda rights, there is no evidence that Morris ever articulated any desire to have counsel present, and much less with the degree of clarity that a reasonable officer in the circumstances would understand the statement to be a request for an attorney. State v. Payne, 2001-3196 (La.12/4/02), 833 So.2d 927.

The district court heard all the witnesses describe what occurred that morning from the time Morris was apprehended until he was taken to be locked up. Specifically, the court heard the officers testify as to when and where Morris was advised of his Miranda rights and the other facts that might influence him to make a statement. The court obviously credited those officers’ testimony more than Morris’s claims. The finding that Morris knowingly and voluntarily waived his rights is supported by the evidence and will not be disturbed. State v. Thibodeaux, supra.

Ineffective Assistance of Counsel

By two of his pro se assignments of error, Morris urges his convictions and sentences should be reversed because of ineffective 1 Sassistance of counsel. Specifically, he contends that trial counsel failed to investigate or subpoena David Green, who allegedly recanted his statement to police and denied he saw Morris and the other men standing outside of Strickland’s before the crime; failed to investigate or subpoena a voice identification expert to testify that the voice on the recorded statement was not really Morris’s; and failed to file a motion to quash the indictment, which was allegedly defective because it lacked the indorsement of the grand jury foreperson.

As a general rule, claims of ineffective assistance of counsel are more properly raised by application for post conviction relief than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Green, 27,652 (La.App. 2 Cir. 1/24/96), 666 So.2d 1302, writ denied, 97-0504 (La.10/31/97), 703 So.2d 14. Only when the record on its face discloses sufficient evidence to decide the issue of ineffective assistance when raised by assignment of error should the issue be addressed on appeal. State v. Seiss, 428 So.2d 444 (La.1983).

Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by Louisiana courts in State v. Washington, 491 So.2d 1337 (La.1986), a reviewing court must reverse a conviction if the defendant establishes (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was [9rendered unfair and the verdict suspect. State v. Legrand, 2002-1462 (La.12/3/03), 864 So.2d 89. In addition, in the context of a guilty plea, the defendant must prove that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Washington, supra.

Morris alleges that Green signed an affidavit on April 16, 2002, recanting his prior statement to deputies. However, the affidavit is not attached to his brief, nor has it been filed with the district court in any post trial filing. Even if Green really did execute such an affidavit, it would not alter the fact that Morris himself, as well as Mark and Johnson, all gave statements admitting they were at the scene; Morris also admitting giving money to at least two persons to keep quiet about the robbery. The autopsy reports corroborated Morris’s account of how many shots were fired into each victim, and deputies recovered the stolen cash register from the abandoned trailer, precisely where Morris said it would be found.

Morris also alleges that trial counsel did not subpoena a voice identification expert to show that the voice on the tape was not really his. There is no evidence that he ever told his lawyer that the tape was fraudulent or altered, and he did not contest its authenticity at the hearing on the motion to suppress.

Finally, Morris urges that counsel was ineffective for failing to quash the indictment, which he alleges was defective because it was not indorsed by the jury foreperson. However, a simple inspection of the original |10indictment, filed on February 12, 2002, shows the indorsement required by La. C. Cr. P. art. 382 A. State v. Mills, 505 So.2d 933, 941 (La.App. 2 Cir.), writ denied, 508 So.2d 65 (1987). Moreover, a defendant is permitted to enter a guilty plea to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney. La. C. Cr. P. art. 487 B. If the district attorney files an amended indictment to conform to a plea agreement, the amended indictment need not be indorsed by the grand jury foreperson. State v. Davis, 614 So.2d 270 (La.App. 3 Cir.1993).

Evidence of Morris’s involvement in the homicides and armed robbery was overwhelming. Counsel made a tactical decision for his client to plead guilty under terms that spared him the risk of two death penalties. On this record it does not appear that counsel’s conduct was unprofessional or that but for his conduct, Morris would have rejected the plea agreement and insisted on proceeding to capital trial. State v. Washington, supra. These assignments of error lack merit.

Other Pro Se Assignments

By his fourth pro se assignment of error, Morris argues the district court erred in failing to conduct an inquiry into whether he had conflict-free counsel. He urges that “all three co-defendánts in this case made" statements against each other,” so their defenses would bé antagonistic, and yet the court allowed them to be represented by the indigent defender board. He urges that this created an actual conflict of interest, for which the court was | n obligated to appoint new counsel under La. R.S. 15:145 B(2)(b).

Prior to arraignment, all three men were codefendants in docket No. 218,901. On the state’s motion and amended motion, the court found all three to bé indigent and appointed individual counsel for them. They were individually represented at the preliminary examination on 'January 15, 2002. Morris has supplied no proof that all three attorneys were employed by the IDB. On February 12, 2002, Morris was individually indicted and the cases were severed; at this point, Mark and Johnson were not technically codefendants. Apart from the general allegation that each man implicated the others, Morris has made no showing that his appointed counsel was hindered or compromised by conflict of interest. This assignment lacks merit.

By his second pro se assignment, Morris urges the district court erred in imposing an excessive sentence and in failing to comply with La. C. Cr: P. art. 493. However, the defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2 A(2); State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171. The terms of Morris’s agreed-upon sentence were clearly stated in the record, and Morris replied that they had been explained to him. This assignment lacks merit.

By his third pro se assignment, Morris urges he should be entitled to withdraw his guilty plea because of his “legal innocence.” In support he cites United States v. Salgado-Ocampo, 159 F.3d 322 (7th Cir.1998). Louisiana law, however, permits the withdrawal of a guilty plea “at any time | ^before sentence,” La. C. Cr. P. art. 559, only upon a showing that it was not free and voluntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Nuccio, 454 So.2d 93 (La.1984). Morris did not file a timely motion to withdraw his guilty plea and has made no showing that his plea was anything other than free and voluntary. State v. Looney, 31,604 (La.App. 2 Cir. 2/24/99), 728 So.2d 987. Moreover, by pleading guilty he waived the right to challenge the sufficiency of the evidence to convict him. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Jefferson, 36,562 (La.App. 2 Cir. 1/29/03), 837 So.2d 733, writ denied, 2003-0933 (La.11/7/03), 857 So.2d 516. This assignment lacks merit.

Conclusion

We have reviewed the entire record pursuant to La. C. Cr. P. art. 920(2) and find nothing we consider to be error patent. LeMarcus Morris’s conviction and sentence are affirmed.

AFFIRMED.

      . The name sometimes appears as "LaMar-cus” in the record.

      . Overruled on other grounds in State v. Lo-vett, 345 So.2d 1139 (La.1977).

      . Reversed on other grounds, 93-0599 (La.4/11/94), 634 So.2d 1168.


author: hMOORE, J. | 1 CARAWAY, J.,

text:
    Uluas BROWN, Plaintiff-Appellant v. INTERNATIONAL PAPER COMPANY, Defendant-Appellee.
    No. 38,892-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Rehearing Denied Oct. 21, 2004.

      Sam L. Jenkins, Jr., Shreveport, for Appellant. -
    Van Hoof Law Firm, by Kathryn Fowler Van Hoof, for Appellee.
    B'efore CARAWAY, DREW and MOORE, JJ.
   hMOORE, J.

The claimant, Uluas D. Brown, appeals a summary judgment finding that he willfully made false statements in a deposition for the purpose of obtaining compensation benefits and thereby forfeited those benefits under La. R.S. 23:1208 A. For the reasons expressed, we affirm.

Factual Background

Brown was employed as a bin tender in the dry veneer division at the International Paper (“IP”) plant in Springhill, Louisiana, earning an average weekly wage of $458.88. He alleged that on May 1, 2001, he was “straightening vanier [sic ] as it came off machine and taking away damaged material when he felt pain in his groin and back.” In deposition, he testified it was “like I hit a funny bone,” causing immediate severe pain in his groin and lower back. He attempted to work in pain for a few days; he went to the emergency room at Wadley Regional Medical Center in Texarkana on May 10 and again on May 31, where he was diagnosed with acute lumbar pain. Brown has not worked since May 31, 2001. On July 24, 2001, he visited Dr. Brad Harbin in Stamps, Arkansas, complaining of “continuous” back pain since the incident at IP.

On August 16, 2001, Brown was involved in a rear-end collision on Benton Road in Bossier City. The following day he returned to the Wadley emergency room, where he told nurses he was “already under the care of a physician for a back injury and pain was nearly gone until involved in 2 vehicle MVC yesterday” (emphasis added). On August 22, Brown saw a | ¡.chiropractor, Dr. James Raker, and reported that he felt “good” prior to the auto accident; Dr. Raker later interpreted this as meaning he had “mild” symptoms before August 16, but severe symptoms after. Brown began therapy with Dr. Raker. On August 24, Brown returned to Dr. Harbin, who noted, “worsening due to motor vehicle accident.” On October 1, Brown went to Dr. Sharma, a physical medicine specialist in Texarkana. Dr. Sharma’s report mentions only the August 16 auto accident, making no reference whatsoever to any prior, work-related condition.

On January 9, 2002, Brown filed the instant disputed claim, alleging that IP had paid no compensation benefits. By amended claim, he demanded indemnity and medical benefits, authorization for medical treatment by a pain care consultant, plus penalties and attorney fees.

In June 2002, IP propounded interrogatories that asked, inter alia, whether Brown had suffered any injuries “subsequent to the accident that is the subject of the compensation claim, and if so, whether he had received medical treatment for it.” By unsigned answers, Brown stated he “has not suffered any physical injuries subsequent to the accident which occurred that is the subject of this lawsuit.” Through further discovery, however, IP learned of Brown’s August 16, 2001 auto accident.

In October 2002, represented by new counsel, Brown prepared supplemental answers to interrogatories, admitting the rear-end collision but stating that “no claim was filed because the attorney he retained to represent him allowed the case to prescribe.”

|3IP took Brown’s deposition in December 2002. In the presence of his counsel, Brown admitted he was in the auto accident, “but I didn’t claim no injuries.” He denied seeing any doctor with complaints of injuries from the auto accident; he advised Dr. Harbin that he had been rear-ended, but insisted he told the doctor, “I feel the same.” Brown further testified, “It’s the same as the day it happened at International Paper. It never changed.” He admitted receiving a settlement for property damage from the other driver’s insurer, but made no claim for personal injuries.

IP pleaded the affirmative defense of fraud and, in August 2003, filed the instant motion for summary judgment. This alleged that Brown forfeited his right to benefits by willfully making a false statement for the purpose of obtaining any benefit or payment. La. R.S. 23:1208 A; Resweber v. Haroil Const. Co., 94-2708 (La.9/5/04), 660 So.2d 7. IP argued that Brown was seeking to recover damages for an injury caused by a non-work-related auto accident which he did not pursue. IP also argued that Brown’s false statements under oath at deposition foreclosed any genuine issue of material fact, thus making summary judgment proper. Western Sizzlin Steakhouse v. McDuffie, 02-0935 (La.App. 1 Cir. 3/28/03), 844 So.2d 355, writ denied, 2003-1147 (La.6/20/03), 847 So.2d 1236. IP also demanded sanctions under La. R.S. 23:1208 D.

Brown opposed the motion, admitting the August 2001 auto accident but arguing that the medical records would show that his current disability resulted from the accident at IP, not from the gentle rear-end collision on Benton Road. He also urged that his original answers to interrogatories, [¿denying the auto accident, had been prepared by his first attorney, and that Brown himself had never read or signed them. Further opposing the motion for summary judgment, Brown attached copies of his original and amended answers to interrogatories, a copy of his deposition, records and bills from the various physicians he has seen since May 1, 2001, and a copy of the police report from the auto accident.

The parties submitted the matter on briefs. By oral ruling of December 23, 2003, the WCJ found that Brown falsely stated in deposition that he told doctors about the auto accident shortly after it occurred and that he felt the same before and after the wreck. The WCJ cited the Wadley emergency room report, Dr. Harbin’s reports and Dr. Sharma’s letter as contradicting this position. The WCJ found these statements were willful because his counsel was present and yet “Mr. Brown repeatedly stated that he had not sought treatment and that he had never claimed to be injured in the accident.” The WCJ concluded the only reason Brown had to deny he was injured in the auto accident “was so it would not interfere with his workers’ compensation claim.” The court therefore granted summary judgment, finding a forfeiture of benefits. The WCJ stated, however, that it would not base its judgment on the false statements made in Brown’s answers to interrogatories because Brown did not sign them. Finally, the WCJ denied IP’s claim for reimbursement.

| ^Represented by new counsel, Brown has appealed.

The Parties’ Contentions

By one assignment of error, Brown urges that IP did not carry its burden of proof under R.S. 23:1208 A on the motion for summary judgment. He contends that the three items of evidence cited by the WCJ should be construed more favorably to him. He further contends that his “first opportunity to provide a full explanation about his symptoms was his deposition,” which leaves open the genuine issue of material fact whether the auto accident did or did not aggravate his genuine, work-related injury.

IP reiterates its arguments in support of the motion for summary judgment. It contends that lying in a deposition justified a summary judgment of forfeiture of benefits in Western Sizzlin Steakhouse v. McDuffie, supra. It also urges that Brown’s repeated false statements in deposition are similar to those that warranted forfeiture of benefits in Jim Walter Homes Inc. v. Prine, 01-0116 (La.App. 1 Cir. 2/15/02), 808 So.2d 818, and a reversal of benefits in Allen v. Housing Auth. of New Orleans, 01-0370 (La.App. 4 Cir. 1/9/02), 806 So.2d 889, writ granted, 2002-0944 (La.6/7/02), 818 So.2d 764. IP concludes with an argument for penalties and sanctions under R.S. 23:1208 C and D.

Applicable Law

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Jones v. Airport Systems Int’l, 28,278 (La.App. 2 Cir. 4/3/96), 671 So.2d 1176. Summary judgment | ^procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. The motion should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. Since the 1996 and 1997 amendments to Art. 966, the courts are to assess the proof submitted by the parties equally, without any presumption in favor of trial on the merits. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. Appellate review of a grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, supra. Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice, yet it may-be granted on a subjective issue when no issue of material fact exists concerning that issue. Id.; Smith v. Our Lady of the Lake Hosp., 93-2512 (La.9/5/94), 639 So.2d 730.

The Workers’ Compensation Act imposes penalties for willfully making a false representation in connection with a compensation claim. La. R.S. 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
_li
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The requirements for forfeiture of benefits are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 660 So.2d at 12; Smalley v. Integrity Inc., 31,247 (La.App. 2 Cir. 12/9/98), 722 So.2d 332, writ denied, 99-0072 (La.3/19/99), 739 So.2d 782. The employer is not required to show that it was prejudiced by the false statement or misrepresentation. Resweber v. Haroil Const. Co., 660 So.2d at 12; Varnado v. Winn-Dixie La. Inc., 98-0301 (La.App. 1 Cir. 9/25/98), 720 So.2d 66.

Discussion

The issue is whether the summary judgment evidence is sufficient to show that Brown willfully made a misrepresentation or false statement in his deposition for the purpose of obtaining compensation benefits. For purposes of de novo review, we accept as true Brown’s allegations that he sustained a work-related injury on May 1, 2001, that he sought treatment from Wadley Regional Medical Center on two occasions in May 2001 and from Dr. Harbin in July 2001, and that he was then involved in a rear-end collision in Bossier City on August 16, 2001.

Brown’s statements to health care providers shortly after the rear-end collision were fairly consistent. A handwritten “assessment” on the Wadley emergency room report states he was “already under the care of a physician | sfor a back injury and pain was nearly gone until involved in 2 vehicle MVC yesterday.” Five days later, Brown sought treatment from a chiropractor, Dr. Raker, whose handwritten history reports that after the rear-end collision, “Patient’s neck, mid and lower back pain started immediately,” had grown worse in the intervening days, and he “was feeling good before accident.” Dr. Raker prescribed physical therapy, three times a week for 12 weeks, and later referred him to Dr. Sharma, a physical medicine and rehabilitation specialist. Dr. Sharma’s two-page report states, “The patient was apparently involved in an automobile accident on August 16, when * * * he was rear ended from behind on Benton Road.” With no report of any prior injury, Dr. Sharma also writes, “He reports that he has never had this kind of pain before.”

In brief, Brown contends that these documents are not as conclusive as they appear, as Dr. Sharma referred to “continued” low back pain; however, he obviously meant the pain had continued for six weeks since the rear-end collision. Brown also shows that nearly two years later, in March 2003, Dr. Raker clarified his initial report by letter stating that he later learned of Brown’s May 1 injury, and when he originally said Brown’s condition was “good” prior to August 16, it meant “mild pain or problems.” This letter, however, does not refute that in his initial visit on August 22, 2001, Brown did not consider the prior injury serious enough to report to Dr. Raker. Brown also cites Dr. Harbin’s report of August 24, 2001, which reflects “continuous” back pain of two months’ duration, worsening after the rear-end collision. Although Dr. Harbin’s report is inconsistent with the 19other medical evidence, it does not alter the fact that Brown misrepresented his condition statements to other health care providers.

Assessing these documents fairly, without any presumption in favor of trial on the merits, C.C.P. art. 966 A(2), we find that Brown sought medical treatment with at least three health care providers in the six weeks after the rear-end collision, telling emergency room personnel that his prior back injury had virtually resolved by August 16 and reporting no prior injury to Drs. Raker and Sharma.

At his deposition in December 2002, Brown gave a totally different account of his condition before and actions after the rear-end collision. He admitted he was in the accident, but said he suffered no injuries. On examination by IP’s counsel, he stood by this claim:

Q Did I understand you correctly that you were not injured in the automobile accident of August 16, 2001?
A No. I claimed no injuries.
Q Were you injured in the automobile accident of August 16, 2001?
A Not to my knowledge.
Q Did you see a physician after August 16, 2001, with any complaints of any injuries as a result of that automobile accident?
A No ma'am.
Q After August 16, 2001, you never complained to any doctor that you had an injury in that automobile accident?
A No, ma'am.

Brown then admitted reporting the auto accident to Dr. Harbin but maintained it had no effect on his pre-existing condition:

Q After your automobile accident, are you saying that you still felt the same type of groin problem and back problem that you had always felt after your injury at IP, and there had been no change?
|inA That’s correct. There had been no change in feeling the pain.
Q Did your back pain worsen at all after your automobile accident?
A No, ma'am. It’s the same as the day it happened at International Paper. It never changed.

He further admitted that he retained an attorney and received about $1,300 for property damage to his car, but made no claim for personal injuries. Later in the deposition, he described his initial visit with Dr. Raker:

Q Did you complain to Dr. Raker of any back problem that resulted from that automobile injury?
A I told him I got hurt on the job, but I had been hit from a car accident. I told him that, and he asked me if any — if I had any injuries afterwards, and I told him it was the same since the job injury.
Q Again, I don’t want to put words in your mouth, Mr. Brown, but are you saying you did not complain to Dr. Raker of any back problems that resulted from the automobile accident?
AI didn’t. No, ma'am. No, ma'am.
Q You did not complain to Dr. Raker of any back problem that resulted from the automobile accident, is that correct?
A That’s correct.

The medical records from the Wadley emergency room and from Drs. Raker and Sharma contradict Brown’s numerous statements in deposition that the automobile accident resulted neither in injury nor in any effort to seek medical treatment. The records are prejudicial to his compensation claim, as they strongly suggest the work-related back injury was resolved before the rear-end collision. On this evidence, the only reasonable conclusion is that in deposition Brown misrepresented both his physical | 1 1 condition just prior to the rear-end collision and his course of medical treatment afterward, for the purpose of obtaining compensation benefits. This satisfies two of the three requirements for forfeiture of benefits under R.S. 23:1208 A. Western Sizzlin Steakhouse v. McDuffie, supra; Allen v. Housing Auth. of New Orleans, supra; Bass v. Allen Cannery Co., 30,635 (La.App. 2 Cir. 6/26/98), 715 So.2d 142, writ denied, 98-2069 (La.11/6/98), 728 So.2d 395.

The remaining requirement is that the misrepresentations or false statements must be willfully made. We are mindful that forfeiture is a harsh remedy and must be strictly construed. Wise v. J.E. Merit Constructors Inc., 97-0684 (La.1/21/98), 707 So.2d 1214; Smalley v. Integrity Inc., supra. An inadvertent and inconsequential false statement would not result in the forfeiture of benefits. Resweber v. Haroil Const. Co., supra; Rosson v. Rust Constructors Inc., 32,789 (La.App. 2 Cir. 3/1/00), 754 So.2d 324, writ denied, 2000-0914 (La.5/26/00), 762 So.2d 1105. Moreover, intent is a subjective fact often unsuited to summary judgment disposition. Jones v. Estate of Santiago, supra.

In deposition, Brown repeatedly denied facts that were plain in the medical records: that his work-related injury had resolved before the rear-end collision, that he was injured in the collision, that he sought treatment for those injuries, and that he disclosed his prior condition to Dr. Raker. The persistence of these misrepresentations, made under oath and in the presence of his own counsel, forecloses the hypothesis that they were inadvertent or inconsequential. Simply put, the summary judgment | ^evidence excludes any genuine issue as to whether the statements were willfully made, and proves that IP is entitled to a judgment of forfeiture as a matter of law, in accord with R.S. 23:1208 A and E. The judgment will therefore be affirmed.

In brief, IP urges that Brown should be subject to the additional sanctions of penalties and restitution of benefits paid, under R.S. 23:1208 C and D and La. C.C.P. art. 863. Because IP neither appealed nor answered the appeal, this court will not entertain its claim for additional relief. La. C.C.P. art. 2133; Walker v. Clarendon Nat’l Ins. Co., 2001-2338 (La.12/14/01), 802 So.2d 1285; Sport Tech Inc. v. SFI Mfg. Inc., 36,413 (La.App. 2 Cir. 12/20/02), 838 So.2d 807, writ denied, 2003-0526 (La.4/25/03), 842 So.2d 405.

Conclusion

For the reasons expressed, the judgment is affirmed. Court costs are assessed against the claimant, Uluas Brown, to the extent permitted by La. C.C.P. arts. 5186 and 5188.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

| 1 CARAWAY, J.,

dissenting.

I respectfully dissent to the majority’s ruling in this summary judgment context. In my view, the plaintiffs testimony in his deposition indicates only a credibility problem on this cold record which is different from the harsh penalty of forfeiture under Section 1208 of the Workers’ Compensation Act and which requires the workers’ compensation judge to hear testimony before deciding.

In Brown’s deposition, he first claimed that IP ignored his work-related accident for many days before allowing him to see a company nurse. He claimed that after he was advised by the nurse to see his personal physician, he missed a few days of work upon the doctor’s advice. Upon his return to IP with his medical diagnosis from the doctor, Brown claims that he was advised by a supervisor that IP considered him to have “voluntarily quit” because of his absence from work. This prompted a heated exchange. Brown left without ever receiving any workers’ compensation from the company for the two to three month period he claimed disability before the August, 2001, automobile accident ever occurred.

The misrepresentation of Section 1208(A) which triggers forfeiture must be “for the purpose of obtaining or defeating any benefit” under the Act. At the time of Brown’s deposition, IP already knew about the automobile accident, and Brown knew that IP knew. This is therefore not a case where the employee hides an important fact from the employer by denying it ever occurred. Brown knew in advance that his employer, who had not paid him anything for 18 months, was taking the position that his | ¡^automobile accident served as continued justification for its obstinance. In whatever manner he attempted to characterize the automobile accident and its effect on his back injury, he could not have expected, nor had “the purpose of obtaining,” anything from IP.

In the deposition, the topic of the automobile accident first came up with the following question and answer:

Q. After your injury at I.P. on May 1st of 2001, did you have any other injuries?
A. I wasn’t injured. I was in an automobile accident, but I didn’t claim no injuries.

Even if considered as misleading, this obviously defensive response did, nevertheless, volunteer the fact of the accident. Thereafter, the many and varied responses of Brown can be read in different ways. He can be interpreted as denying injury from the accident. He can also be interpreted as asserting that the automobile accident exacerbated his existing condition. What is clear is that Brown is an undereducated person, who, when challenged in a deposition by his employer’s attorney, took a defensive and medically complicated position that his second accident did not cause his present state of disability.

Causation for back injuries can be a very difficult problem for medical professionals to sort out. Some injured employees, disgruntled with their employer’s conduct in denying workers’ compensation benefits, do testify to the nature and cause of their symptoms in a defensive manner and with a bias that requires their credibility to be greatly, if not entirely, discounted. This type of causation dispute and credibility problem is not the |3subject matter of Section 1208(A) of the Act, in my opinion, and certainly is not to be resolved through a motion for summary judgment.

IP’s motion for summary judgment does not factually dispute (i) Brown’s claim for a work-related injury; (ii) his version of his dismissal from the company; and (iii) his disability that prevented employment during the three months before the August automobile accident. Brown’s contradictory and defensive assertions may cause the workers’ compensation judge, after hearing Brown’s testimony at trial, to deny his claim for disability benefits after the August accident, and that credibility decision will produce consequences similar to the present ruling for the denial of workers’ compensation benefits. Nevertheless, such credibility determination should not be transformed into the forfeiture penalty of Section 1208(A) and decided by the workers’ compensation judge on a summary judgment without hearing this claimant and his doctors testify.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, DREW, and MOORE, JJ.

Rehearing denied.

STEWART and CARAWAY, JJ., would grant rehearing.

      . The disputed claim form lists the date of accident as May 1, 2001; however, the employer's report of injury or illness is dated May 30, 2001, and in many of his pleadings, including the appellate brief, Brown says it was May 4, 2001.

      . In supplemental answers to interrogatories, he stated that his attorney allowed the case to prescribe.