author: STEVEN R. PLOTKIN, Judge.

text:
    Whitney DABNEY, Jr., v. Todd P. PLAISANCE, Fay L. Cohn and/or Robin & Cohn Seafood Distributors, Inc. and State Farm Mutual Automobile Insurance Company.
    No. 2002-CA-0710.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2002.
    Rehearing Denied Jan. 7, 2003.

      Ford T. Hardy, Jr., New Orleans, LA, for Plaintiff/Appellant.
    John C. Overby, Brian C. Bossier, Erin H. Boyd, Jason T. Little, Blue Williams, L.L.P., Metairie, LA, for Defendani/Appel-lee.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge TERRI F. LOVE).
   STEVEN R. PLOTKIN, Judge.

Plaintiff, Whitney Dabney, appeals a lower court judgment granting a motion for summary judgment in favor of defendant, Traveler’s of Illinois (“Travelers”), dismissing plaintiffs UM claim on the basis of a waiver of UM coverage executed by Traveler’s insured, Magnolia Marketing Company (“Magnolia”). Plaintiff also appeals the lower court’s denial of its own motion for summary judgment seeking a declaration that the UM waiver is invalid. For the following reasons, the judgment granting defendant’s motion for summary judgment and dismissing plaintiffs UM claim is affirmed.

Facts and Proceedings Below

On June 18, 1998, plaintiff was involved in an automobile accident while driving a truck owned by his employer, Crown Beverage Co., Inc. (“Crown”). Plaintiff was within the course and scope of his employment with Crown at the time of the accident. Based upon the injuries and death allegedly sustained as a | ¡.result of the accident, plaintiff sued several defendants, including Travelers, alleging a UM claim against Travelers.

Travelers issued a commercial automobile liability policy to Magnolia for the 1998-99 policy year. Plaintiffs employer, Crown, was a named insured under the policy. However, the policy contains a rejection of uninsured/underinsured motorist coverage.

The rejection of UM coverage was executed on December 16, 1997, by Mr. A1 Janusa of Magnolia. Mr. Janusa was the secretary/treasurer of Magnolia. One of his duties was to obtain insurance for the company; a task he performed for the past thirteen years.

The waiver form itself was a pre-printed form prepared by Mr. Kenny Newberger, an insurance agent working with Magnolia. The pre-printed form, which was signed by Mr. Janusa, appeared as follows:

Uninsured Motorist-Bodily Injury
Uninsured motor vehicles include 1) Motor vehicles for which there is no liability insurance 2) Motor vehicles for which the available limits for liability insurance is not enough to pay the full amount of damages (uninsured motor vehicle) or 3) Hit and run vehicles.
In accordance with Louisiana statutes, Uninsured Motorist insurance which provides coverage for damages for bodily injury which the insured may be entitled to recover from the owner or operator of an uninsured motor vehicle, must be provided at the limits equal to the policy’s bodily injury liability limits. You do have the option to reject this coverage or select limits which are lower than the bodily injury limits on your policy, but not less than the minimum financial responsibility limits set forth by the State of Louisiana.
Please indicate your desired options by checking the appropriate box and signing below:
|3p 1. Insured motorist coverage limits other than my policy’s bodily injury liability limits: $_ each accident; or $_each person, $_each accident
X 2. I hereby reject uninsured motorist bodily injury coverage.
If you sign below and/or pay any premium, you have evidenced your actual knowledge and understanding of the availability of these benefits and limits, as well as the benefits and limits you have selected.
Signature of Named Insured
Date
Agent
Date

Although the rejection form was a pre-printed form prepared by Mr. Newberger and signed by Mr. Janusa, Mr. Janusa testified that the pre-printed form was prepared as a result of collaboration between himself and Mr. Newberger. Mr. Janusa testified that, in this particular case, Mr. Newberger sent Mr. Janusa a blank form with no pre-printed “x”, whereby Mr. Janusa sent the form back to Mr. Newberger with instructions as to how to prepare the form. Mr. Newberger then prepared the above form pursuant to those instructions.

Plaintiff filed a motion for summary judgment seeking to have the UM rejection form declared invalid. At the same time, Travelers filed a motion for summary judgment seeking to have plaintiffs UM claim dismissed based on the rejection form.

On September 5, 2001, the trial court, holding that the UM rejection form was valid and enforceable, granted Travelers’ motion for summary judgment and dismissed plaintiffs UM claims. Plaintiff now appeals that decision.

|4Plaintiff urges the following issues for review. First, plaintiff argues that the language in the rejection form was insufficient to provide the insured an opportunity to make a “meaningful selection” in rejecting UM coverage. Second, plaintiff argues that the waiver form is vague and ambiguous. Third, plaintiff urges that, by using a form where the selection has been made on a pre-printed form, the insured, Magnolia, did not specifically reject UM coverage as required by law. Finally, plaintiff argues that UM coverage was not validly rejected in this case because Mr. Janusa did not have the authority to reject such coverage.

Law and Analysis

The appellate court reviews a judgment granting a motion for summary judgment de novo. Royal Street Grocery, Inc. v. Entergy New Orleans, Inc., 2000-1530, p. 5 (La.App. 4 Cir. 2/20/02), 811 So.2d 120, 123; Freeman v. Hutson, 99-1438, p. 5 (La.App. 4 Cir. 6/23/99), 738 So.2d 148, 151. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Freeman, 99-1438 at p. 6, 738 So.2d at 152. The procedure is favored and shall be construed to accomplish these ends. Id. A summary judgment shall be rendered where 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof is on the movant to establish a prima facie case that there is no genuine issue of material fact. La. C.C.P. art. 966(C). However, where the mover will not bear the burden of proof at trial with regard to a particular claim or defense, the movant need only prove a lack of factual support for one or more |fiessential elements of the non-moving party’s claim or defense. Id. Thereafter, the burden shifts to the non-moving party to produce factual support that a genuine issue of material fact exists. Id. Again, if the non-moving party has the burden of proof at trial, that party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id. An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denial of his pleadings, but his response, by affidavits or otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. Freeman, 99-1438 at p. 7, 738 So.2d at 152.

In his first assignment of error, plaintiff argues that the language of the rejection form is insufficient to allow the insured an opportunity to make a meaningful selection in rejecting UM coverage. Specifically, plaintiff argues that the rejection form in this case did not contain the option that the insured could opt for UM coverage equal to the bodily injury limits. The Louisiana Supreme Court has held in Tugwell v. State Farm Insurance Co., 609 So.2d 195 (1992) that a rejection form must give the applicant an opportunity to make a meaningful selection by spelling out the insured’s option under the UM statute:

At all times relevant to this case, La. Rev.Stat. § 22:1406(D)(l)(a) required uninsured motorist (UM) coverage “in not less than the limits of bodily injury liability provided by the policy.” However, such UM coverage was not required “where any insured named in the policy [rejected] in writing the selected] lower limits.” The statute did not specify how a rejection or selection of lower limits must be in writing and signed by the named insured or his legal representative. Further, the insurer must place the insured in a position to make an informed rejection of UM coverage. In other words, the form used by the insurance company must give the applicant the opportunity to make a “meaningful selection” from his options provided by the statute: (1) UM coverage equal to bodily injury limits in the policy, (2) UM coverage limits lower than the bodily injury limits in the policy, or (3) no UM coverage.

Id. at 196-97 (citations omitted).

However, Louisiana courts have not interpreted Tugwell so rigidly as to require insurance forms to contain an expressed option of selecting UM coverage equal to bodily injury limits. As the Louisiana Supreme Court stated in Daigle v. Authement, 96-1662 (La.4/8/97), 691 So.2d 1213:

The insured ... argues that the form should have provided a means of affirmatively choosing UM coverage by providing boxes or blanks for her to check indicating her selection among the statutory options. While such a format may be desirable, it is not the only way of making sure that the applicant is fully informed of the available options and allowed to choose between them. In Tugwell, we noted that the task of informing the applicant of available options can be accomplished in several ways. It is not the job of the courts to draft insurance forms or to dictate the exact format or wording which must be used for a valid rejection of the mandated UM coverage.

Id. at pp. 5-6, 691 So.2d at 1216. Specifically, Louisiana jurisprudence states that a rejection form not containing an option to choose UM coverage equal to bodily injury limits is nonetheless valid where the form contains some written indicia that the insured’s lack of selection would result in UM coverage equal to bodily injury liability limits. Daigle, 96-1662 at pp. 4-5, 691 So.2d at 1215; Evans v. Crowe, 98-2422, p. 5 (La.App. 1 Cir. 12/28/99), 765 So.2d 366, 368-69. In fact, the Louisiana Supreme Court in Daigle v. Authement, held that a rejection form that does not contain a specific option for the insured to select UM coverage equal to bodily injury limits is valid where the form otherwise informs the insured that the absence of any rejection of UM coverage will automatically result in UM coverage equal to bodily injury limits. 96-1662 at pp. 4-5; 691 So.2d at 1215.

17In this case, the rejection form does not contain a specific option for the insured to choose UM coverage equal to the bodily injury coverage. However, as in Daigle, the rejection form in this ease clearly informs the insured that Louisiana law requires that UM coverage be provided in the amount equal to bodily injury limits and that such will be the case unless UM coverage is specifically rejected. As such, the language of the rejection form is sufficient under the requirements of Tug-well.

Plaintiff argues that the holding of Evans v. Crowe, 98-2422 (La.App. 1 Cir.

12/28/99), 765 So.2d 366, is on point and stands for the proposition that Louisiana law requires that a UM rejection form contain an option to select UM coverage equal to bodily injury limits. Neither assertion is correct: the holding in Evans is distinguishable and its analysis is completely consistent with the analysis of Dai-gle. In Evans, the court held as invalid a UM rejection form that contained only two options: one option for UM coverage lower than the liability limits and another option completely rejecting UM coverage. Id. at p. 4, 765 So.2d at 368. However, the rejection form 333333contained language that only informed the insured of the insured’s right

to totally reject UM coverage or select UM coverage in an amount lower than liability limits: there was no language informing the insured that a lack of a selection would result in UM coverage. Id. The court did not hold the form invalid solely on the absence of an option on the form to choose UM coverage equal to the liability limits, but explicitly noted that the form “any written indicia that the insured’s lack of a selection would result in UM coverage at liability limits.” Id. As mentioned above, the UM form in the case sub judice does contain the “written indicia” required by the analysis in Evans. The holding of | xEvans is therefore distinguishable and its analysis is completely consistent with the analysis of Daigle. In any event, plaintiffs first assignment of error has no merit.

In his second assignment of error, plaintiff argues that the text of the waiver form is vague and ambiguous. Plaintiff argues that the absence of a “box” where the “x” was placed renders the form un-clear. This assignment is meritless on its face. We find that, in viewing the executed rejection form, the absence of a box where the “x” was placed is of no moment: the form clearly shows an “x” near the option rejecting coverage. The form adequately conveys the insured’s intent to reject UM coverage. Therefore, this assignment of error has no merit.

In his third assignment of error, plaintiff argues that Magnolia did not clearly and unmistakably choose to reject UM coverage. Specifically, plaintiff argues that, by using a pre-printed form where the selection was already made, Magnolia did not perform an affirmative act in choosing to reject coverage and, as such, did not sufficiently convey an intent to reject coverage. In support of his position, plaintiff cites the case of Henson v. Safeco Insurance Companies, 585 So.2d 534 (La.1991) for the proposition that the signature of a pre-printed form is insufficient to constitute rejection of UM coverage.

Plaintiff reads Henson too broadly. In Henson, the court noted from the record that the insured’s only action was to place a signature of the policy. There, the transaction between the insured and insurer involved the insured submitting an application and the insurer responding by sending a rejection form drafted in such a way that the insured was required to affirmatively change the form in order to accept UM coverage. 585 So.2d at 539. In such circumstances, the court held that UM coverage was not specifically rejected as required by Louisiana law.

|9In the case at bar, Magnolia did not merely sign a pre-printed rejection form sent by Travelers. Magnolia’s representative and insurance agent collaborated on the draft of the form. A blank form was sent to Magnolia, which form was returned to the insurance agent with instructions as to how to fill out the form. The mere fact that the form was filled out by the insurance agent is of no moment, as it was prepared pursuant to the instruction of the insured. Thus, the record indicates that Magnolia specifically rejected UM coverage. This assignment of error has no merit.

Finally, plaintiff argues that the UM rejection form is invalid because the signatory of the form, Mr. Janusa, was without authority to sign on behalf of Magnolia. Plaintiffs only support for this contention is an admission by Mr. Janusa that there was ho express corporate resolution authorizing him to execute the UM rejection on behalf of Magnolia.

Louisiana law does not require that a corporation issue a corporate resolution in order for a corporate representative to validly execute a rejection form. See Ruiz v. Lewis, 579 So.2d 1203, 1206 (La. App. 4 Cir.1991), Writ denied, 586 So.2d 562 (La.1991) (“Corporate authority may be explicitly or implicitly proved”). The record is uncontroverted that Mr. Janusa was the secretary/treasurer of Magnolia and that his duties under that position included the procurement of insurance. Such testimony is sufficient to establish his authority to sign the UM rejection form on behalf of Magnolia. The absence of an explicit corporate resolution to that effect is insufficient to create an issue of fact as to that authority.

| inConclusion

Accordingly, we hold that the trial court did not err in finding the UM rejection form in this case valid and enforceable as a matter of law. We therefore affirm the decision of the trial court granting summary judgment in favor of defendant and dismissing plaintiffs UM claim.

AFFIRMED.

      . Plaintiff has introduced as evidence several forms used by Travelers in other states to show that the form in question is inadequate. Since we are dealing with the rejection form requirements in Louisiana, the presence or absence of an option to choose UM coverage equal to bodily injury on a form used in another state is irrelevant to these proceedings.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE of Louisiana v. Levi Joseph GARRICK.
    No. 02-0712.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Robert F. DeJean, Jr., DeJean, DeJean, & DeJean, Opelousas, LA, for Defendant/Appellant, Levi Joseph Garrick.
    Earl B. Taylor, District Attorney, Opel-ousas, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   PETERS, J.

The defendant, Levi Joseph Garrick, was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. After trial, a jury returned a verdict of guilty as charged. The trial court then sentenced the defendant to serve twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant has appealed his conviction, asserting four assignments of error. For the following reasons, we reverse the defendant’s conviction, set aside his sentence, and remand this matter for a new trial.

The criminal charge filed against .the defendant arises from an armed robbery of the Palmetto, Louisiana branch of. the Washington State Bank.. On March 27, 2001, at approximately 9:40 a.m., Joseph Hilton Kelly and Skyler Guidry, armed with pistols, entered the bank and took over $20,000.00. At the time of the armed robbery, the defendant was outside the bank in th.e getaway vehicle. The men fled the scene, and, shortly thereafter, West Baton Rouge Parish law enforcement officers stopped them as they drove East on U.S. Highway 190. .The officers recovered almost all of the money taken from the bank, three sets of gloves and hoods, and three weapons.

Assignments of Error Numbers 1 and 2

Both of these assignments of error relate to Guidry’s testimony at trial. The defendant asserts in these assignments of error that the trial court erred in not granting a mistrial, or at least a continuance, because of the state’s actions in obtaining Guidry’s testimony.

On December 5, 2001, the trial court •impaneled a twelve-person jury. The trial on the merits began on December 13, with the jury returning its verdict the next day. The day before the trial began, the state and the defendant filed a written joint stipulation' concerning the status of discovery in the litigation. This stipulation stated | ¡>in part:

Defendant herein, though [sic] counsel, reserving the right to file timely additional motions as provided by law, together with counsel for the State of Louisiana, stipulate that the undersigned Assistant District Attorney has provided a copy of the entire Law enforcement agency investigative file in this matter to the defendant. The State agrees to provide to the defense any additional Law enforcement agency investigative material subsequently obtained. Specifically excluded is any work product of the district attorney’s office obtained either by the assistant district attorneys, the district attorney’s staff or any- other personnel acting for or on their behalf. The State further recognizes its continuing obligations to disclose any exculpatory evidence discovered, irrespective of the source. . The defendant stipulates that receipt of this file serves as notice of the State’s intention to introduce all evidence (including defendant’s statements) included therein. The production of this file constitutes full satisfaction of the Motion for Discovery and Inspection, Motion for Bill of Particulars, Motion for Preliminary Exam and all request [sic] for Public Records pursuant to La. R.S. 44:1, et seq. The defendant and the State further stipulate ■ that receipt of this file obligates the defense to timely disclose to the State all materials discoverable by the State pursuant to La.C.Cr.P., arts. 724-728, including but not limited to notice of. defense based on mental condition and notice of alibi.

(Emphasis added.)

However, despite the clear language of this stipulation, the state had not supplied the defendant with full, open file disclosure. On December 6, 2001, six days before entering into-the stipulation and the day after the jury had been impaneled, the state, through both the district attorney’s office and the attorney general’s office, had filed a joint motion pursuant to La.Code Crim.P. art. 439.1 to compel Guidry’s testimony in the defendant’s trial. Louisiana Code of Criminal Procedure Article 439.1 provides:

A. In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a grand jury, of the state, at any proceeding before a court of this state, or in response to any subpoena by the attorney general or district attorney, the judicial district court of the district in which the proceeding is or may be held shall issue, in accordance with Subsection B of this article, upon the request of the attorney general together with|sthe district attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in Subsection C of this article.
B. The attorney general together with the district attorney may request an order under Subsection A of this article when in his judgment
(1) the testimony or other information from such individual may be necessary to the public interest; and
(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self incrimination.
C. The witness may not refuse to comply with the order on the basis of self incrimination, but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.
D. Whoever refuses to comply with an order as hereinabove provided shall be adjudged in contempt of court and punished as provided by law.

The state acknowledged in argument to the trial court that this motion was not made available to the defendant in the open file discovery process and that the defendant only became aware of the motion when the trial court granted it immediately before the trial began on the morning of December 13.

Prior to granting the motion, the trial court held a recorded conference in chambers with counsel for the state and the defendant present, as well as two attorneys responsible for Guidry’s defense. One of the other two attorneys present had previously represented both Guidry and Kelly, and, on the morning of December 13, the court relieved him of representation of both defendants. That same morning, the trial court appointed the other attorney, a member of the local indigent defender board, to assume the responsibility of representing Guidry.

|4In this conference, the state informed the trial court and the defendant that the state’s investigator had obtained a statement from Guidry that morning and that the state had offered Guidry a twenty-five year sentence cap in exchange for his truthful testimony. When defendant’s counsel inquired if the morning’s statement had been taped or reduced to writing, he was informed by the state that it had done neither. Thereafter, the follow-' ing exchange took place:

MR. DEJEAN [COUNSEL FOR DEFENDANT]: Because of this instance, your Honor, this was all filed this morning, it’s — we assumed that we had everything in the D.A.’s file. He knew he was going to bring Mr. Guidry into the courtroom and I’m going to ask for a continuance or a mistrial because we certainly need to regroup on the defendant’s standpoint at this time.
THE COURT: And what is your reason for that? What would you be entitled to that you would not have been entitled to before this information was received?
MR. DEJEAN: Well, your Honor, we were certainly entitled to know whether or not they were going to force this man to compel, use his testimony, and make a deal with him. They didn’t just decide this yesterday. And we had no knowledge of it. It’s a surprise to us. I’m asking for a continuance or mistrial until such time that I can regroup with my client.
THE COURT: Mr. Richard?
MR. RICHARD [COUNSEL FOR THE STATE]: He was aware that this defendant had given a statement implicating his client and he was aware this morning that this guy, Mr. Guidry, was going — we had a motion which you just signed today so I mean, it was signed this morning. And I don’t think that he can claim that he has a right to discover that at all. I mean, he’s gotten everything I — did you get open file, Mr. De-Jean?
MR. DEJEAN: Yes.
MR. RICHARD: Okay, so he got a copy of the entire District Attorney’s file.
MR. DEJEAN: Nothing dealing with this. Nothing' — nothing dealing with this, your Honor.
|STHE COURT: Can you point to any authority which would have required him to do anything earlier than he did today?
MR. DEJEAN: An agreement that he would give us his entire file.
THE COURT: And do you have any evidence to present that he did not give you everything that’s in his entire file?
MR. DEJEAN: Well, your Honor, I’m asking the Court to conclude that this has not just come up this morning.
MR. RICHARD: No, the stuff I sent to Mr. Screen earlier, yes.
MR. DEJEAN: Well, there you go. I mean, you can’t take it out of file and say here’s open file.
MR. RICHARD: Well, the agreement—
MR. DEJEAN: And it’s not part of the file.
THE COURT: Hold on a second. Mr. Richard, was Mr. Guidry listed as a witness?
MR. RICHARD: Yes, sir, he’s on the subpoena list, the original letter sent to the Clerk of Court dated some time back. If we get the file, the file of the District Attorney, he’s the last named person on the District Attorney’s list.
THE COURT: Was there any discovery propounded by you, Mr. DeJean, which requested a list of witnesses that you did not receive?
MR. DEJEAN: No, your Honor. But I think that I have every right under the rules of procedure to believe that this man does not have to testify until such a time as some time [sic] of agreement is made or a motion to compel is filed because — I’ve had it with Mr. Richard before where they had to have the Attorney General’s permission, authority. It has come to the authority of the Attorney General and it was not in the open file that I got, neither was the witness list, your Honor.
THE COURT: Mr. Richard, last bite and then I’m going to make a ruling.
MR. RICHARD: Oh, I think the witness — the letter, the witness list, is public. It’s part of the record in this case.
THE COURT: Okay, what I’m asking you, Mr. DeJean, is did you file a specific request for a list of witnesses to Mr. Richard or to the District Attorney’s Office?
|fiMR. DEJEAN: No, your Honor. What I was told and what I have is something signed by him that I have everything in his file and that he would give it to me — he would have given it to me on a continuing basis.
THE COURT: Okay.
MR. DE JEAN: If the—
MR. RICHARD: The problem— -
MR. DE JEAN: — and this is not in his file.
MR. RICHARD: But the one exclusion is we do get to keep our work ■ product and that’s — I don’t think that this is evidence. I mean, that’s the other thing, I’m sorry, Judge. But it’s not evidence.
MR. DEJEAN: I would like to, if I could your Honor, for the record, one second.
THE COURT: Sure.
MR. DEJE AN: I would like to, it is so newly filed that it’s not even yet into the court record, no holes have been punched in it, nothing. It was done and presented this morning immediately pri- or to trial.
THE COURT: The Court makes note of the same for the record for you. I’m going to deny the motion to continue and the motion for mistrial. Okay, let’s proceed.

The problems with Guidry’s testimony do not end at this point. As the state’s first witness at trial, he presented conflicting testimony on numerous critical factual points, as well as testimony exculpatory to the defendant.

According to Guidry, Joseph Hilton Kelly and the defendant came to his home on the evening of March 26, 2001, and drove him to the Plantation Inn Motel near Lafayette, Louisiana, where the three men joined two women, Latoya Bienvenu and Audrey Babineaux. Guidry testified that, while on the way to the motel, Kelly told him that they were going to rob a drug dealer and that Kelly offered him crack cocaine in exchange for his help.

|7The three men and two women spent the night consuming alcohol and illegal narcotics in a room at the motel. Guidry testified that the robbery plan continued to be discussed during the night and that at some point in the planning, they agreed to use Ms. Bienvenu’s maroon-colored sports car in the robbery instead of Kelly’s Chevrolet Caprice. At this point in Guidry’s testimony, the defendant sought and received another conference outside the presence of the jury.

In the conference that followed, the defendant again asked for a mistrial or, in the alternative, a continuance. This exchange followed this motion:

MR. DEJEAN: ... This goes back to what the prior motion was when we made a motion for mistrial based on surprise on testimony of this witness. And now, number one, Mr. Richard asked him a question knowing that the witness’s answer would be relative to the commission of another crime which was robbing a drug dealer which I have no information about. And now all of this has come out. Again, relying on what I said prior, the fact that we were not notified, the fact that we were guaranteed in writing by the District Attorney and under his signature of the District Attorney’s Office, Mr. Tromblay signed it, that we would be given updates. We weren’t given anything until this morning and I have a right to it. I mean, they told me they were giving me full open file, everything in their file, everything they knew about. They gave me other statements. Okay, that was misleading. I’m not saying it was intentional. I don’t have to say it’s intentional. The Court draws his own conclusions about certain facts. We’re severely prejudiced by this and again, I’m urging a continuance or the mistrial.
THE COURT: Mr. Richard?
MR. RICHARD: I certainly hope they’re prejudiced by it, but not all prejudice is reversible or leads to a mistrial. A, it’s not in my file. B, the witness testified. He’s never spoken to me. C, it’s admissible as what I still call res gestae although the professors argue with me because it’s part and parcel of the planning. D, it’s not commission of another crime; it’s the planning of what this one started out to be a robbery of a drug dealer and it changed. So it’s not commission of another crime, it’s the planning of this crime. And if they take several permutations, that’s the defendant’s problem, not the State’s and I’m not obligated to give him to know what’s in a witness’s mind. I’ve given him — he said he had a copy of my entire file. That’s it. It’s not an obligation and this is not like the federal court where I have to give him an outline of every witness’s statement. In feds they have to do that, they have to give out | sa precis or something like that to the defense counsel and we don’t have that, thank God.
THE COURT: The Court notes that—
MR. DEJEAN: Your Honor, I would like to comment again. If he has guaranteed me in writing signed by the office of the District Attorney that he will give it to me, it’s — sure, if there is no open file, then I have a burden of filing certain things. But when I have it in writing from him, and I believe the Clerk put it in the record this morning, I was told that they did, if not I’ll reserve my right to put it into the record relative to these motions, I have the guarantee that he’s going to give it to me. Now — and he hasn’t. Not until this morning did we learn of this man testifying. So, your Honor, I don’t think he can say that this is not federal court so we’re not entitled to it. Of course we’re entitled to it. He guaranteed he would give it to us. That’s number one. Number two, he — I’m going to submit to you that he cannot send his investigator to go take a statement this morning, have an oral statement given to him, and then come and tell you well it wasn’t in my file because it’s over. I submit, your Honor, that we are prejudiced from a standpoint of procedure in the way this matter was handled and even if it may be admissible some time down the line when we have knowledge of it, since he guaranteed us open file, it’s not permissible today.
THE COURT: Okay, the Court makes note of the fact that Mr. DeJean indicates that he had open file and we’ll make that part of the record and the District Attorney agrees he had open file. The Court further notes that the witness has testified thus far pursuant to Mr. Richard’s statement earlier in chambers, which was on the record, that he only received the information as to what this witness was going to give this morning and that it was oral in nature. Third, the Court notes that I don’t believe the District Attorney could tell me that he knew whether this individual would acquiesce in the motion to compel despite an order without the cap or with the cap and in view of that, I do not believe it violates the open file discovery in the letter or the spirit in view of the fact that he could know no more than anybody else what this Skyler Guidry was going to do at the time this morning. As a result, the motion for continuance and/or mistrial are hereby denied and I’m happy to make your objection general throughout the testimony of Mr. Guidry.

When Guidry’s testimony resumed, he testified that, at some point in the evening, the plan changed from the robbery of the drug dealer to the robbery of the bank.

Upon continued questioning by the state, Guidry stated that, on the morning of March 27, 2001, the three men left the two women at the motel and traveled to IgPaimetto to rob the bank. According to Guidry, he and Kelly traveled in Kelly’s car while the defendant drove Ms. Bien-venu’s car. Upon arriving in Palmetto, they parked Kelly’s car on a gravel road approximately one mile from the bank and proceeded to the robbery scene in Ms. Bienvenu’s car as planned. Guidry testified that Kelly provided three guns, three pairs of gloves, and masks or hoods to use in the robbery.

To this point, Guidry’s testimony clearly suggested a continuing conspiracy to rob the bank. However, he then asserted that, as they drove past the bank a few times and as the effect of the alcohol and drugs they had ingested the night before began to wear off, he and the defendant expressed to Kelly their desire to withdraw from the criminal enterprise. Concerning this attempt to withdraw, Guidry testified to the following:

A. Well, after we — after we rode around for a while, after the alcohol and drugs had done worn off, me and Mr. Levi, we didn’t want to do it no more. We changed our mind.
Q. Changed your mind?
A. Uh hum.
Q. And then what happened?
A. Then Mr. Kelly told us that we either help him or else.
Q. Alright.
A. Because me and Mr. Levi, our guns didn’t have no bullets. Mr. Hilton’s gun the only gun that had bullets.
Q. I see. You didn’t have any bullets in your gun?
A. No sir.
Q. And he pointed the gun at you?
|inA. Sort of, yeah, kind of threatened us with it.
Q. He kind of threatened you? And so you all went and what did you do after he threatened y’all?
A. He ordered Levi to stay in the car and watch out if any customers would come in the bank.

According to Guidry, Kelly ordered him to enter the bank first, and, as he did, the two ladies in the bank immediately began stacking money on the counter. After Kelly entered the bank, he began putting the money in a bag and made one of the women unlock the rear door of the bank. He also ordered Guidry to bind the two bank employees with duct tape. After binding the two ladies and placing them in a bath room, the two men left the bank through the back door and returned to where the defendant was waiting in the car.

Guidry then testified that Kelly drove Ms. Bienvenu’s car back to the gravel road where they had left his car. Even then, according to Guidry, he and the defendant pleaded with Kelly to drop them off, and he refused. After they had switched vehicles, Kelly called Ms. Bienvenu, using a cell telephone, and informed her of the successful robbery, as well as where she could find her car. According to Guidry, Kelly then began driving toward Baton Rouge, Louisiana. They were ultimately apprehended by law enforcement personnel on U.S. Highway 190 in West Baton Parish. Even during this time, according to Guidry, the defendant attempted to have Kelly release him, but Kelly would not. The police recovered most of the stolen money, as well as the guns, masks, and gloves used in the robbery.

On cross examination, Guidry contradicted his direct testimony in numerous ways, including the manner in which the robbery was planned. Despite having initially testified that the plan to rob the bank had begun to take shape on the evening hi of March 26, he testified on cross-examination that, when he and the other two men traveled to Palmetto on the morning of March 27, they had not yet discussed robbing the bank and were looking for the drug dealer. According to Guidry, it was only after the three men arrived in Palmetto that Kelly mentioned robbing the bank. Concerning his inability to withdraw from the criminal enterprise, even after the robbery, the following exchange took place during cross-examination:

A. Uh hum, we say we wanted to get out.
Q. And Mr. Kelly said — what was Mr. Kelly’s reply?
A. “I’m not letting y’all out.”
Q. Did you try to tell him also to let y’all out?
A. Yes, sir.
Q. Were you scared that he might shoot if you tried to resist him?
A. Yeah, I was because the man, he’s mentally ill. He has a mental problem and I know him to go off on people before in the past.
Q. And he was in that temperament right then and there? In other words, you felt like he might go off on y’all if you pushed him too far?
A. That’s the way it seemed. I didn’t know what he was capable of.

In State v. McCartney, 96-58, p. 12 (La. App. 3 Cir. 10/9/96), 684 So.2d 416, 425, writ denied, 97-0508 (La.9/5/97), 700 So.2d 503, cert. denied, 522 U.S. 1002, 118 S.Ct. 573, 139 L.Ed.2d 412 (1997), this court stated:

Under Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], due process is violated by the suppression of favorable evidence by the prosecution when the production of such evidence is requested and when the evidence is material to either the guilt or innocence of the accused, regardless of the good or bad faith of the prosecution. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), this concept was extended to include evidence that impeached the credibility of the prosecution’s witnesses.

In brief, the state asserts that Guidry’s testimony was obtained in the following | ^manner:

After the jury was selected, the State sought to discuss the matter with Gui-dry in preparation for trial; the State’s counsel then discovered Guidry would not cooperate and so the Motion to Compel his testimony was necessitated. There is no basis in fact or law which requires the State to give a defendant information it does not have. The Order to Compel was not signed by the trial judge until the date of trial; the State did not have access to [Guidryj’s testimony until that time. In fact, in order to assure his testimony, despite the Order, the State had to promise Guidry a cap of twenty-five years of sentence exposure.

While there exists no evidence of record to suggest the accuracy of this statement, it is troubling in many respects. First, since the motion was filed on the day after the jury was selected and six days before the open file discovery agreement was executed by the state, it establishes another fact that was not provided to the defendant in the open file discovery process. Additionally, the record reflects that trial was to begin at 9:00 a.m. on December 13, 2001. The court minutes reflect that the chambers conference to discuss Guidry’s testimony began at 10:40 a.m., after the jury had been seated, the witnesses had been sequestered, the trial court had given its preliminary instructions, and the state gave its opening statement. Thus, all of the discussions with Guidry and/or his counsel, if occurring after the trial court executed the motion to compel, were compressed into a short period of time on the morning of December 13. Also, left unanswered are the questions of why the state felt obligated to offer Guidry a twenty-five year sentence cap, given the mandatory language of La.Code Crim.P. art. 439.1, and whether the trial court had agreed to the sentencing cap since the state does not impose sentence in criminal cases.

Equally troubling is the fact that the state chose not to inform the defendant of the exculpatory nature of Guidry’s testimony when it became available on the morning of trial. We find nothing within the mandate of Brady to suggest that the 11 ¡¡state’s continuing obligation ceases on the date of trial. Thus, in this case, we are left with two possible scenarios. Either the statement made to the state’s investigator on the morning of trial was different from the testimony presented by Guidry, in which case the state had an obligation to inform both the trial court and the defendant, or the state simply chose not to inform the defendant of the exculpatory testimony it anticipated from Guidry.

While acknowledging in brief its Brady obligations and appearing to acknowledge that it violated its obligations, the state cites State v. Ancar, 508 So.2d 943 (La. App. 4 Cir.1987), for the rule of law that every failure on the part of the state to comply with discovery procedure does not require an automatic reversal. While we agree with the holding in Anear, we do not find it applicable in this case. In Anear, the defendant had filed formal discovery requests for certain specific information. The state initially answered these requests by denying the existence of the information requested. However, the state later filed notices of its intent to use certain evidence that it had previously denied existed. The fourth circuit concluded that the trial court erred in admitting the evidence, but found that “these errors do not warrant a reversal because on the record before us we are convinced that the jury reached the correct conclusion.” Id. at 946. Additionally, unlike the matter now before us, the state asserted that it was not aware of the evidence when it formally answered the defendant’s discovery motions and that it had orally informed the defendant of the evidence after it became aware of its existence. Even more important, the improperly admitted evidence in Anear was not of an exculpatory nature.

Louisiana Code of Criminal Procedure Articles 716 through 723 provide the | ^specific rules governing discovery by a defendant. Certainly, these rules can be modified by agreement between the state and a defendant, and open file discovery is a commendable modification that serves to expedite the discovery process and the overall administration of justice. However, when the litigants chose to modify the discovery process and enter into an open file discovery agreement, it must be fully complied with in good faith. Failure of full, good faith compliance cannot be looked upon as harmless error where the failure relates to a due process violation such as failure to divulge exculpatory evidence.

We do not find that the trial court erred in denying the requests for a continuance. Louisiana Code of Criminal Procedure Article 707 provides that a motion for continuance “shall be in writing” and “shall be filed at least seven days prior to the commencement of trial.” Additionally, La. Code Crim.P. art. 708 provides that “[a] continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced.” “A jury trial commences when the first prospective juror is called for examination.” La.Code Crim.P. art. 761. In the matter before us, the entire jury had been impaneled, and opening statements had begun. Therefore, the defendant’s motion for a continuance was neither in proper form nor timely sought.

The Louisiana Supreme Court recently considered a case similar to one before us. In State v. Kemp, 00-2228, p. 6 (La.10/15/02), 828 So.2d 540, the defendant appealed his conviction and sentence, asserting that the state “suppressed material exculpatory evidence.” At trial, defense counsel objected to live witness testimony which deviated substantially from the tape-recorded statement given by the witness only hours after the incident at issue in Kemp. The trial judge conducted an in |1Scamera review of the state’s file, but concluded that the witness’ tape-recorded statement “did not rise to the level of exculpatory evidence” and denied the defense’s motion for a mistrial. Id. at 7, 828 So.2d at 545. The first circuit, in an unpublished opinion, affirmed the trial court. However, the supreme court reversed the first circuit, stating:

For purposes of the prosecution’s due process duty to disclose evidence favorable to a defendant, Brady v. Maryland, 373 U.S. 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), no distinction exists between exculpatory and impeachment evidence. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). While witness statements are normally not discoverable, La.C.Cr.P. art. 723, this discovery rule must give way when a statement contains favorable information for Brady purposes. Kyles [v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)]; see La.C.Cr.P. art. 718. In addition, the prosecution must make timely disclosure of the favorable evidence to provide the defense with adequate opportunity to present the material effectively in its case. State v. Prudholm, 446 So.2d 729, 738 (La.1984). This Court therefore recognized that late disclosure as well as nondisclosure of exculpatory evidence may deprive the defendant of a fair trial. State v. Williams, 448 So.2d 659, 665 (La.1984); State v. Landry, 388 So.2d 699, 702 (La.1980); State v. Roussel, 381 So.2d 796, 798 (La.1980).

Id.

The court continued, “ ‘the touchstone of due process analysis ... is the fairness of the trial[.] ... [T]he aim ... “is not punishment of society ..., but avoidance of an unfair trial to the accused.” ’ ” Id. at 8, 828 So.2d at 546 (quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982)). Ultimately, the supreme court in Kemp concluded that the “state’s failure to provide timely disclosure impacted the fundamental fairness of the proceedings leading to [the defendant’s conviction.” Id. at 9, 828 So.2d at 546. Thus, the court vacated the conviction and sentence and remanded the case.

In addition, La. Code Cr.P. art. 775(3) provides that a trial judge may order a mistrial and dismiss a jury when “[t]here is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.” We conclude that the failure of the state, in violation of due process, to provide the |1fidefendant with the exculpatory evidence supplied by Guidry is a legal defect in the proceedings of such a nature which makes the verdict reversible as a matter of law. Therefore, we find that the trial court abused its discretion in failing to grant the defendant’s motion for a mistrial. In finding merit in these assignments of error, we find it unnecessary to consider the remaining assignments of error.

DISPOSITION

For the foregoing reasons, we reverse the defendant’s conviction, set aside his sentence, and remand this matter for a new trial.

REVERSED AND REMANDED.


author: YELVERTON, J.

text:
    STATE of Louisiana v. Susie PADDIO.
    No. 02-722.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Michael Harson, District Attorney, 15th JDC, Lafayette, LA, for State of Louisiana.
    Edward Kelly Bauman, LA Appellate Project, Lake Charles, LA, for Susie Pad-dio.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A, PICKETT, Judges.
   YELVERTON, J.

The Defendant, Susie Paddio, was charged by grand jury indictment dated November 17, 1999, with the offense of second degree murder, a violation of Louisiana Revised Statute 14:30.1. On November 27, 2001, the Defendant was tried by a jury and was found guilty as charged on November 28, 2001. On December 17, 2001, the Defendant was sentenced to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. The Defendant filed a motion to reconsider sentence on December 17, 2001, which was denied by the trial court, with written reasons issued on February 25, 2002. From this conviction and sentence, the Defendant now appeals, alleging three assignments of error.

FACTS

On September 5, 1999, officers from the Lafayette Parish Sheriffs Office were called to 210 Marigny Circle, Apartment B, in Duson, Louisiana, to investigate'' a domestic disturbance. Upon arrival, officers found the victim, Mr. Roland Roy, lying dead on the floor of the master bedroom, with a substantial amount of blood on his left shoulder and a large kitchen knife lying nearby. The Defendant, and her two children, ages seven and nine years, lived with the victim for approximately a year and nine months. The Defendant was present at the scene, covered in blood, and she admitted that she stabbed the victim. She was transported to the Lafayette Parish Sheriffs Office for interrogation. The Defendant waived her rights and gave a videotaped statement, during which she gave conflicting accounts of the events that led to the killing. After further investigation, she was charged with second degree murder.

ERRORS PATENT

In accordance with Louisiana Code Criminal Procedure Article 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we found no errors patent.

ASSIGNMENT OF ERROR NO. 1

The Defendant contends that the State failed to offer sufficient evidence to prove that the Defendant did not kill the victim in self defense, or alternatively, that the Defendant did not act in the heat of passion, thereby warranting conviction for only manslaughter. We find that the State proved the Defendant was guilty of second degree murder, therefore, the Defendant’s contentions have no merit.

This court has previously explained the structure of sufficiency reviews:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing 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), rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino[ v. King], 436 So.2d 559 [La.1983], (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The Defendant was charged with the offense of second degree murder, which is defined as the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm. See La.R.S. 14:30.1. “When a defendant in a homicide case claims self-defense, the state has the burden of establishing beyond a 13reasonable doubt that the defendant did not act in self-defense. State v. Hall, 606 So.2d 972, 973 (La.App. 3 Cir. 1992), writ denied, 93-51 (La.11/11/94), 644 So.2d 385 (citing State v. Garcia, 483 So.2d 953 (La.1986)).

As contained in La.R.S. 14:20(1):

A homicide is justifiable:
When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

In brief to this court, the Defendant stipulates that she killed the victim and confessed to the act during her statement to authorities. However, she alleges that she stabbed Mr. Roy in self-defense, as she was attempting to leave his apartment with her children. During the Defendant’s trial, numerous witnesses testified for and against the Defendant, and most described a stormy, sometimes violent relationship between the Defendant and the victim. Ms. Nichole Sinegal, who was romantically involved with the victim and was mentioned by several witnesses during the Defendant’s trial, was summoned to testify but could not be located.

The State first called Mr. James Randall, Jr., a lifelong friend and nephew of the victim. Mr. Randall testified that he worked with the victim six days per week, installing floors, and that he knew the Defendant for about two years. He further testified that he went to the victim’s apartment a few days prior to the murder and found the victim and the Defendant in an argument. Mr. Randall indicated that the victim wanted the Defendant and her children out of the apartment and would not leave for work until they were gone. He further testified that he was aware that the victim and Defendant had split up on past occasions. Mr. Randall had never seen bruises on the Defendant during the time that he knew the couple.

Mr. Damien Roy, another nephew of the victim, testified that he was present at a family gathering in Carenero, on an unspecified date, where the victim and |4Pefendant were in attendance. He testified that the Defendant became extremely angry when the victim left the gathering for a time. While the victim was away, the Defendant threatened to kill him if she found that he was seeing another woman. The threat was made within the hearing of a number of attendees. Upon the victim’s return to the gathering, the Defendant calmed down.

Mr. Ronald Roy, Sr., the victim’s brother, testified that the Defendant was very possessive of the victim and frequently called to check on his whereabouts. Mr. Roy lived next to the victim at one time and stated that the victim attempted to end the relationship with the Defendant several times. He recalled an occasion, about five months before the murder, when the victim evicted the Defendant from the apartment, only to find that, upon his arrival from a weekend away, she had returned and reoccupied the apartment. The victim was accompanied by another girlfriend, Ms. Nichole Sinegal. Mr. Roy testified that the victim told him that he intended to reestablish his prior relationship with Ms. Sinegal and was attempting to break up with the Defendant. After the victim and Ms. Sinegal entered the apartment, an argument ensued, whereupon the Defendant physically attacked the victim. Mr. Roy attempted unsuccessfully to halt the Defendant’s assault on the victim, and the Defendant then attacked Ms. Sinegal. Mr. Roy physically removed Ms. Sinegal from the scene, and the victim eventually escaped to his automobile. As the victim and Ms. Sinegal attempted to drive away, the Defendant threw a barbeque pit at the car, hitting the roof of the vehicle. The Carenero Police arrived some time later, and arrested the Defendant for battery of the victim. Mr. Roy further testified that the Defendant never appeared afraid of the victim and that she previously told Mr. Roy that she would kill the victim if he attempted to leave her for another woman. He also recalled another incident where the Defendant and victim began to argue while at Mr. |sRoy’s house. Once again, the Defendant physically attacked the victim and had to be restrained by Mr. Roy.

Ms. Cheryl Lewis, the victim’s sister, testified that the Defendant told her that she was in love with the victim, even during his prior relationship with Ms. Sinegal. The Defendant was obsessed with the victim and was always concerned with the whereabouts of the victim when out of her presence. She was aware that the victim and Defendant broke up several times and that the victim was reestablishing a relationship with Ms. Sinegal at the time of the murder. Ms. Lewis was present during another occasion at the victim’s apartment, when the Defendant and victim began to argue, whereupon the Defendant struck and pushed the victim. Ms. Lewis and her sister, who was present at the time, attempted to separate the couple, only to have the Defendant reinitiate the conflict several times. Ms. Lewis had to persuade the victim to leave the area to avoid further attacks by the Defendant. Ms. Lewis was also present at the family gathering during which the Defendant threatened to kill the victim. She indicated that the gathering was held about three weeks prior to the fight where the Defendant threw the barbeque pit at the victim’s car. She stated that the Defendant became frantic when the victim left the party and told Ms. Lewis that she believed the victim was leaving in order to meet another woman and that she would kill him if she ever caught him with someone else. Ms. Lewis testified that the victim was with Ms. Sinegal earlier on the night of his murder.

Ms. Lisa Roy, also a sister of the victim, testified that she knew that Ms. Sinegal and the victim broke up prior to his relationship with the Defendant and that the victim and Defendant often argued. She was present at the altercation at the victim’s apartment, described by Ms. Lewis, and confirmed that the Defendant initiated the physical confrontation by striking the victim. Ms. Roy also stated that the Defendant refused to end her attacks on the victim, returning to strike and scratch Lhim after the two were separated. She also attended the family gathering, and stated that the Defendant was “out of control” during the time that the victim was gone and that she clearly heard the Defendant threaten to kill the victim if she found him with someone else.

A number of witnesses also testified for the Defendant. Mr. Peter Joseph, a neighbor of the victim’s father, testified that he was acquainted with the Defendant and victim during the time that they lived next door to Mr. Roy. He stated that he observed the victim and Defendant in a physical altercation in the yard of their dwelling. Mr. Joseph testified that the victim chased the Defendant, eventually dragging her and hitting her, and that he called the police. The victim forced the Defendant into a van and left the scene prior to the arrival of the police. He stated that he did not see how the altercation began.

Ms. Lynn Joseph, wife of Mr. Peter Joseph, testified that she also witnessed portions of the confrontation between the victim and Defendant. She observed the victim holding the Defendant by the hair and hitting her but also testified that she did not know how the fight started.

Ms. Mary Papillion, a licensed practical nurse who worked with the Defendant at a nursing home, testified that she observed and treated a severe bite mark on the Defendant’s shoulder on one occasion while at work. She did not testify regarding anything the Defendant might have said regarding the cause of the wound. Ms. Papillion also stated that the Defendant reported to work on several occasions with scratches and bruises, but that she did not inquire further.

Mr. Steven Barlow, an employee of the nursing home where the Defendant worked, testified that he observed the Defendant with swollen eyes, abrasions, and a limp on one occasion. He did not testify concerning any knowledge of the source of the injuries.

|?Ms. Mary Savoy, a neighbor and babysitter for the Defendant during part of the time that she lived with the victim, testified that she observed the Defendant with a black eye on two or three occasions. She stated that she called the police to the Defendant’s residence once, after the Defendant sent her children to Ms. Savoy’s house during an apparent argument.

Ms. Joyce Davis, the Defendant’s mother, testified that she had regular contact with the Defendant during the time she was living with the victim.. She stated that she observed injuries to the Defendant “many times” and that, on one visit to the Defendant’s residence, while the victim was not home, she saw that her face was swollen. Ms. Davis called the police, but the victim was not located. On another occasion, while driving with her husband, she witnessed the Defendant hanging out of the open window of the victim’s moving car. She further testified that the Defendant and victim broke up several times during the course of their relationship.

Brandy Paddio,.the Defendant’s sister, testified that she saw her sister at the hospital in a wheelchair, with multiple bruises to her face and body. She further stated that she took the Defendant to the hospital for other injuries on several occasions. After these trips to the hospital, the Defendant stayed at her mother’s house for a few days before eventually returning to live with the victim. Ms. Paddio did not personally witness any violent incidents between the victim and Defendant.

Mr. Paul Mercier, the Defendant’s stepfather, testified that he also observed the incident during which the Defendant was hanging out of the victim’s moving automobile. The victim’s vehicle was weaving in the roadway and came to a stop some distance away from the point that the two vehicles passed each other. When Mr. Mercier approached the victim’s car, the Defendant was not inside and the victim was standing beside the vehicle. Mr. Mer-cier left the scene and was flagged down by another vehicle, which had picked the Defendant up farther down the road. The 1 sDefendant got in Mr. Mercier’s car. As he drove the Defendant home, the victim’s vehicle approached from the rear and the victim honked repeatedly in an attempt to get Mr. Mercier to stop. After Mr. Mercier halted his car, the victim approached, yelling obscenities at the Defendant. Mr. Mercier was also aware that the Defendant broke up and reunited with the victim on several occasions.

In addition to the testimony of relatives and acquaintances of the victim and Defendant, the State presented testimony from police officers who interviewed the Defendant and examined the crime scene and from a forensic pathologist who examined the victim. The defense countered with an expert witness of its own.

Detective Dwayne Prejean, of the Lafayette Police Department, was offered by the State and accepted as an expert in the area of blood splatter analysis. Detective Prejean testified that he was dispatched to the crime scene on the day 'the victim was killed. He photographed the scene and collected evidence, and testified at trial concerning the pattern of blood spatters in the victim’s apartment, as well as the blood on the Defendant. He described the eleven-and-one-half inch kitchen knife that was used by the Defendant to stab the victim. The detective could not give an opinion regarding the sequence of events which resulted in the death of the victim, and stated only that he believed the victim was stabbed in the area of the bed and fell on the bed after being stabbed, ultimately rolling onto the floor.

Dr. Emile Laga performed the autopsy on the victim and was offered and accepted by the State as an expert in the fields of forensic pathology, chemistry, and toxicology. He testified that the victim died from a single, oblique, downward stab wound between the ribs of the left side, about six-and-one-half inches deep, which severed the victim’s aorta and resulted in death within five minutes or less. There were no defensive wounds on the victim’s hand or arms. Dr. Laga also reported that the victim had a blood alcohol level of “.11” and an unspecified amount of cocaine |c¡was present as well. The cocaine could have been ingested by the victim up to three days prior to death. He also examined a photograph of the Defendant’s face, taken on the night of the murder, and testified that there was discoloration, but no swelling, under the right eye. He testified that the redness could have been caused by an allergy or some other cause.

Detective Sonny Stutes, of the Lafayette Parish Sheriffs Office, testified that he was called to the murder scene on the night of the killing. When he arrived, he found the Defendant covered in blood and saying in a loud voice that “she didn’t mean to do it.” He found the victim on the floor, lying dead in a pool of blood. Upon investigation, he determined that the Defendant’s children went upstairs to a neighbor’s apartment and did not witness the murder. The children asked the neighbor to call “911,” but did not provide any information to investigators or testify during the Defendant’s trial. There were no witnesses to the events leading up to the killing other than the Defendant. The Defendant was transported to the Lafayette Parish Sheriffs Office, where she waived her rights and gave a videotaped statement to the police. The tape was played for the jury during the Defendant’s trial.

The Defendant initially stated that she was in an argument with the victim, was hit by him, went into the kitchen to retrieve a knife, went back into the bedroom, and stabbed the victim when he attempted to strike her. She did not state that she specifically retrieved the knife for the purpose of self-defense. However, the Defendant then stated that she argued with the victim. He struck her once and pulled her hair to prevent her from going to get the knife. She escaped, obtained the knife, returned, and stabbed the victim as he attempted to strike her again. She offered a third version of the story, wherein the two were arguing in the bedroom and she was struck by the victim; she walked into the living room and began packing her children’s clothes to leave the apartment. The victim was cursing and threatening her |infrom the bedroom, whereupon she decided “she wasn’t going to take it any more” and retrieved the knife, entered the bedroom, and stabbed the victim as he attempted to strike her again.

The detective also testified that he found two book bags by the apartment door, which were closed and zipped up. He stated that the apartment was fairly neat, that nothing was knocked over, as would be expected in a physical disturbance, that no objects in the apartment seemed disturbed, and that the Defendant’s hair was “slightly disturbed” in the back but her clothes were not torn. She did not have any markings on her that appeared to be from a recent physical altercation.

The Defense offered Dr. Donald Harper as an expert in psychopharmacology and was accepted as such by the court. Dr. Harper testified concerning the level of cocaine found in the victim’s system and stated that it appeared the victim probably took “large amounts over a long period of time.” He stated that, in general, a combination of alcohol and cocaine, as present in the victim’s system, would make a person more aggressive. He further testified that it was possible, though not certain, that the victim ingested the cocaine within ten hours of the time of death and that the cocaine was still in the victim’s system at some unquantiflable level when he was killed.

Contrary to the opinion of Dr. Harper, Dr. Laga testified on rebuttal that the cocaine found in the victim’s system could have been ingested at any time within three days of his death, and that it is impossible to determine the precise point with any greater accuracy. He further testified that he found no physical symptoms of chronic cocaine use by the victim during his examination. Dr. Laga also stated that it was impossible to tell whether the victim suffered any impairment at the time of death because of the cocaine found in his system, due to the fact that an exact time of ingestion could not be determined.

|nIn brief to this court, the Defendant points to the various instances where the victim was observed striking the Defendant, to the cocaine use by the victim, and to the Defendant’s allegation that she was trying to leave the apartment on the night of the murder and responded only when attacked by the victim. However, the jury evaluated each of these contentions and found that the Defendant did not act in self-defense.

As previously noted, the murder scene did not show any signs of a violent physical confrontation. There was no evidence that the victim was armed. The Defendant did not have any apparent signs of recent injury, nor did she have torn clothes or other signs of a struggle.

Testimony revealed that the Defendant physically attacked the victim on several prior occasions and continued the assaults even when separated by intervening third parties. She made frequent threats to kill the victim on previous occasions and was extremely jealous and possessive. The Defendant encountered the victim with Ms. Sinegal, his previous girlfriend, on at least one occasion prior to the murder, and there was testimony that the victim intended to break off his relationship with the Defendant in favor of resuming a relationship with Ms. Sinegal.

The Defendant gave conflicting stories to the police regarding events surrounding the murder, all of which include the fact that she broke away or left the confrontation in the bedroom, went to the kitchen to retrieve the murder weapon, and returned to the bedroom, where she killed the victim. Under any of the scenarios offered by the Defendant, it was unnecessary to kill the victim. Once out of the bedroom, she could simply have left the apartment. There was no evidence that the victim pursued the Defendant once she left the bedroom; therefore, there was no imminent danger that the Defendant was going to be killed or receive great bodily harm. Accordingly, we find that the State submitted sufficient evidence to prove, 112beyond a reasonable doubt, that the victim did not act in self-defense. This contention, therefore, has no merit.

Alternatively, the Defendant contends that she killed the victim in the heat of passion and that the jury should have convicted her of manslaughter. Manslaughter is defined in La.R.S. 14:31(A)(1) as:

Manslaughter is:
A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (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. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

Manslaughter exists if a defendant can prove by a preponderance of the evidence that mitigating factors, such as provocation, exist. State v. Baldwin, 96-1660 (La.12/12/97), 705 So.2d 1076, cert. denied, 525 U.S. 831, 119 S.Ct. 84, 142 L.Ed.2d 66 (1998).

In brief, the Defendant points out that she and the victim were arguing on the night of the murder and the victim’s body contained both alcohol and cocaine, which could have made the victim more aggressive. None of the facts elicited at trial demonstrate that Defendant was provoked to the point where she acted in “sudden passion or heat of blood.” Indeed, there was no testimony regarding the events immediately preceding the murder. We note that the Defendant had been in numerous verbal and physical confrontations with the victim on previous occasions, some of which she initiated. On many such occasions, she simply left the scene, often staying with friends or relatives. In each instance she chose to return to live with the victim.

However, on the night of the murder, she decided to arm herself, reenter the bedroom and stab the victim. Absent signs of a physical confrontation on the evening |13of the murder, considering the Defendant’s previous threats to kill the victim, and in light of the fact that the jury heard all of the evidence regarding the turbulent nature of the relationship, we find that the Defendant failed to prove that the jury erred in finding insufficient evidence to support her claim that she acted in the heat of passion. This contention therefore lacks merit.

ASSIGNMENT OF ERROR NO. 2

The Defendant contends that the trial court erred in denying her motion in arrest of judgment. We conclude that the trial court correctly denied the motion and that the Defendant’s contention to this court has no merit.

Following her trial, the Defendant filed her motion based on the claim that the trial violated the prohibition against double jeopardy. The Defendant was previously brought to trial on the same charge, but a mistrial was declared when the prosecutor called the Defendant as his first witness. The Defendant contends that the trial court erred in finding that the action of the prosecutor was not intentional and that the Defendant suffered no prejudice by the retrial.

In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the court held that a mistrial does not normally bar a second prosecution unless the conduct of the prosecutor, which caused the mistrial, was intended to provoke the defendant into moving for a mistrial. See also State v. Brossette, 93-1036 (La.App. 3 Cir. 3/2/94), 634 So.2d 1309, writ denied, 94-802 (La.6/24/94), 640 So.2d 1344. The prosecutor’s conduct must be overreaching and considered bad faith harassment which seriously prejudices the defendant causing him to “reasonably conclude that a continuation of the tainted proceeding would result in a conviction.” United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976).

|uIu the Defendant’s case, the prosecutor stated, during the hearing on the motion in arrest of judgment, that he was inexperienced in criminal trials and routinely called defendants to testify during his civil trial practice. He also questioned defense counsel, Mr. Chris Larue, who stated that the prosecutor told him that he intended to call the Defendant to testify and that he relayed the information to co-counsel, Mr. Paul Marx. Neither Mr. Larue nor Mr. Marx believed that the prosecutor would actually call the Defendant, and they believed that he was joking. The prosecutor also reminded the court that, when the Defendant’s mistrial was ordered during the first trial, he apologized to everyone in court for the error, offered to be publicly reprimanded by the court in lieu of a mistrial, and vigorously argued that the trial should continue. The trial judge in the Defendant’s current trial accepted the representation of the prosecutor that his actions in the first trial were unintentional and not intended to provoke a mistrial in the Defendant’s case. The court also noted that the evidence of the “bad character” of the Defendant, which was permitted during the second trial, consisted of prior threats by the Defendant against the victim, and were properly admitted to prove motive, intent, or plan, and that the judge in the first trial was not presented with a request to admit such evidence.

Further, the court found that the Defendant suffered no prejudice as a result of the mistrial. Mr. Larue testified that the Defendant’s case was better prepared during the second trial than during the first. The court noted that the defense was able to obtain the toxicology report on the victim and had hired Dr. Harper as an expert for the defense in the interim between trials.

Mere negligence by a prosecutor is not sufficient to bar a second prosecution on the same charges. State v. Amato, 96-606 (La.App. 1 Cir. 6/30/97), 698 So.2d 972, writs denied, 97-2626, 97-2644 (La.2/20/98), 709 So.2d 772. Further, when such conduct does not indicate bad faith on the part of the prosecutor, retrial is Impermissible. State v. Cannon, 383 So.2d 389 (La.1980), cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 587 (1981).

Considering the forgoing, the trial court did not err in concluding that the prosecution of the Defendant, following a mistrial in the case, was not a violation of the prohibition against double jeopardy. The error by the prosecutor during the first trial was unintentional, was not done in bad faith, and was not intended to provoke a mistrial. The defense was actually better prepared during the second trial, and the Defendant suffered no prejudice as a result of the retrial. Accordingly, this contention by the Defendant has no merit.

ASSIGNMENT OF ERROR NO. 3

The Defendant contends that the mandatory life sentence imposed on her was constitutionally excessive. This contention has no merit.

After the Defendant was convicted of second degree murder, the trial court imposed the mandatory sentence of life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence as required by La.R.S. 14:30.1(B). Defense counsel orally objected and informed the court that he would file a motion to reconsider' sentence, seeking a “Dorthey exception” to the mandatory sentence. The written motion to reconsider sentence was filed on December 17, 2001, and was denied with written reasons issued on February 25, 2002.

In her motion, the Defendant cited the history of domestic violence between her and the victim, stated that the sentence did not contribute to the goal of punishment, and stated that the legislature erred in failing to “assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” In denying the motion, the trial court ruled that the jury did not accept the Defendant’s arguments that she was abused and was not the 11fiaggressor, or that her actions constituted self-defense. The trial court further found that it had no alternative to sentence the Defendant to any sentence, other than the mandatory life sentence required by statute. On appeal, the Defendant also contends that the record does not contain facts which could have been used to determine aggravating and mitigating factors, as required by Louisiana Code of Criminal Procedure Article 894.1, and that the Defendant is not “the most blameworthy and egregious offender.”

Regarding the Defendant’s claim that her sentence is excessive, we note that a sentence, although within the statutory limit, is considered to be excessive if “the penalty is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Kitchen, 94-900, p. 8 (La.App. 3 Cir. 2/1/95), 649 So.2d 1227, 1229, writ denied, 95-537 (La.6/23/95), 656 So.2d 1012 (quoting State v. Bonanno, 384 So.2d 355, 357 (La.1980)). A mandatory life sentence is not per se unconstitutional. Richardson v. La. Dept. of Public Safety and Corrections, 627 So.2d 635 (La.1993). However, a trial court has the authority to determine whether a mandatory minimum sentence is constitutionally excessive as applied to a particular defendant. State v. Dorthey, 623 So.2d 1276 (La.1993). Further, this review extends to all mandatory minimum sentences and not just those imposed under the habitual offender law. State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274.

Nevertheless, a court may depart from a minimum sentence only if it finds that there is clear and convincing evidence that rebuts the presumption of constitutionality. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). To rebut the presumption, a defendant must show, by clear and convincing evidence, that, “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences L7that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676 (quoting from Judge Plotkin’s concurrence in State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 531, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223).

Although it appears the trial court erred in stating it had no alternative but to impose the mandatory life sentence, we can review the sentence for excessiveness. See State v. Derouin, 00-1150 (La.App. 3 Cir. 1/31/01), 778 So.2d 1186. In the Defendant’s case, the record contains no evidence the trial court could have reviewed to determine that the mandatory life sentence was constitutionally excessive. In brief, she reiterates her claim that she acted in self-defense and that she was abused by the victim. There was no pre-sentence investigation report, and the Defendant provided no information to the court, or in brief on appeal, which would support such a departure. As noted by the trial court, these claims were rejected by the jury in the Defendant’s case and therefore, do not provide a basis for deviation from the mandatory sentence.

Further, regarding Defendant’s claim that the trial court failed to state aggravating and mitigating factors, compliance with Article 894.1 is met in such cases when the court informs the defendant that he or she is receiving the sentence mandated by law. State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98), 723 So.2d 1013, writ denied, 98-3054 (La.4/1/99), 741 So.2d 1282. This contention, therefore, has no merit.

Accordingly, the trial court did not err in denying Defendant’s motion to reconsider sentence, and the sentence imposed upon the Defendant is not constitutionally excessive.

| ^CONCLUSION

The Defendant’s conviction and sentence are affirmed.

AFFIRMED.