author: JjLEON A. CANNIZZARO, JR., Judge. 11 JONES, J.,

text:
    STATE of Louisiana v. Gordon NEWMAN.
    No. 2003-KA-1721.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 2004.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Graham Daponte, New Orleans, LA, for Defendant/Appellant, Gordon Newman.
    (Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).

      . Cocaine is classified as a controlled dangerous substance under La. R.S. 40:964.

   JjLEON A. CANNIZZARO, JR., Judge.

The defendant, Gordon Newman, was convicted on June 17, 1998, of committing first degree murder on April 18, 1995. He was sentenced on June 17, 2003, to life imprisonment in connection with his conviction. Mr. Newman is now appealing his conviction and his sentence.

STATEMENT OF THE CASE

Mr. Newman was indicted for the first degree murder of Romero Dupre, and he pled not guilty at his arraignment. He filed a motion to quash the indictment, which was denied. Mr. Newman also filed a number of motions, including motions to obtain the grand jury testimony and the rap sheets of certain persons. The trial court granted these particular motions, but this Court vacated the trial court’s order in part, requiring only certain portions of the grand jury testimony and the rap sheet of only one of the State’s witnesses to be disclosed. State v. Newman, 96-2788 (La.App. 4 Cir. 2/19/97), unpub., writ denied, 97-0736 (La.5/1/97), 693 So.2d 740.

Mr. Newman was tried before a twelve-person jury. The jury returned a unanimous verdict of guilty as charged. The jury rendered a verdict at the 12sentencing phase of the trial finding that Mr. Newman should not receive the death penalty but should be sentenced to life imprisonment instead.

Mr. Newman was scheduled to be sentenced a month after his conviction, but he repeatedly moved for continuances of the sentencing hearing. Almost three years after he was convicted, Mr. Newman filed a motion for a new trial. Six months later a hearing on the motion was held, and approximately four months after the hearing, the trial court granted Mr. Newman’s motion for - a new trial. The State filed an application for supervisory writs to review the trial court’s decision to grant Mr. Newman a new trial, and this Court granted the writ application and reversed the trial court ruling. State v. Newman, 2002-0666 (La.App. 4 Cir. 4/10/02), unpub., writ denied, 2002-1483 (La.3/21/03), 840 So.2d 536.

Five years after Mr. Newman was convicted, he was sentenced to life imprisonment. A month after he was sentenced, the trial court denied his motion to reconsider his sentence but granted his motion for an appeal.

STATEMENT OF FACTS

On the night that Mr. Dupre was killed, Mr. Newman and Anthony Shelton went to a residence on Telemachus Street in New Orleans to purchase drugs. According to the trial testimony of Raymond Sias, Mr. Dupre had arranged to sell cocaine to Mr. Newman and had requested that Mr. Sias “front” the sale for him, meaning that Mr. Sias would make it appear to Mr. Newman and Mr. Shelton that Mr. Sias was actually the seller of the drugs.

The four men had agreed to meet at the Telemachus Street house where Vernon York, a close friend of Mr. Sias, lived. Mr. Sias had previously lived with Mr. York on Telemachus Street and still had a key to the house. Mr. Sias had arranged with Mr. York to use the house on the evening of the drug transaction.

| ?According to Mr. Sias’ testimony, on the day that Mr. Dupre was killed, Mr. Newman and Mr. Shelton met with Mr. Sias and Mr. Dupre, first at Mr. Newman’s home and then later at a daiquiri shop. They met at Mr. Newman’s home to discuss the details of the drug transaction and at the daiquiri shop to confirm that Mr. Newman and Mr. Shelton had obtained the money needed to buy the drugs. Once Mr. Dupre and Mr. Sias were satisfied that Mr. Newman and Mr. Shelton had the money, all four men left the daiquiri shop. Mr. Dupre and Mr. Sias left in one vehicle, and Mr. Newman and Mr. Shelton followed them in Mr. Shelton’s jeep. The men drove around for some time to make certain that their vehicles were not being followed. When the four men finally arrived at the house on Telemachus Street, Mr. Shelton remained in his jeep with the money that was to be used to buy the drugs, and the other three men went inside the house.

Mr. Sias testified that Mr. Newman was very nervous, because he was concerned that someone might be inside the house, waiting to rob him. Therefore, Mr. Sias and Mr. Dupre invited Mr. Newman into the house so that he could verify that no one was there to rob him.

Mr. Sias testified further that Mr. Dupre and Mr. Newman went into the second room of the house where Mr. Newman was apparently shown the drugs that he was to buy. Mr. Sias stayed by the front door of the house, which he had locked with a deadbolt key.

Mr. Newman indicated that he was satisfied with the drugs he was to buy, and he asked Mr. Sias to unlock the front door so that he could ask Mr. Shelton to bring the money inside. When Mr. Newman walked outside of the house, he called to Mr. Shelton to bring the money. He then turned, pulled a gun from his waistband, and shot Mr. Sias in the head. As Mr. Sias fell on the front porch of | ¿the house, he heard Mr. Newman yell to Mr. Shelton, “Get the shotgun for this motherfucker.”

Before he lost consciousness, Mr. Sias heard a car door close, and then he heard a series of gunshots. At the trial, Mr. Sias testified that he believed that he had been shot with a nine millimeter gun. Mr. Dupre had been fatally wounded.

Richard LeBlanc, a detective assigned to the homicide unit of the New Orleans Police Department (the “NOPD”), was the lead detective in this case. When Detective LeBlanc arrived at the scene of the shootings, Mr. Sias and Mr. Dupre’s body had already been moved from the scene. Detective LeBlanc observed a pool of blood, a bullet casing, keys, and some change on the front porch of the Telemachus Street house. Inside the house he saw blood and additional bullet casings in the second room of the house. Toward the rear of the house, just outside of the kitchen door, he observed more blood, a bullet fragment, two more bullet casings, and two bullet holes in the floor. The kitchen door also had bullet holes in it. In an open dresser in a bedroom, a nine millimeter handgun and nine clear, plastic bags of a green vegetable matter, which was believed to be marijuana, were found.

During his investigation Detective Le-Blanc found a nine millimeter handgun in an alley approximately one block from the Telemaehus Street house. Across the street from the alley where the gun was found, Detective LeBlanc found Rand seized a brick-shaped object from a hedge. The object appeared to be cocaine to the detective.

While Detective LeBlanc was working at the crime scene, Mr. York, who lived at the Telemaehus Street house, arrived. He was interviewed by the detective, and to account for his whereabouts at the time Mr. Dupre was killed, he provided a receipt for purchases that he had made at a store earlier that evening. Based on the time on the receipt and the fact that the items listed on the receipt were in Mr. York’s truck, Detective LeBlanc concluded that Mr. York had not been involved in the crime that had occurred that night.

Several days after the shootings the NOPD homicide unit received information that one of the people involved in the shootings was Mr. Newman. Detective LeBlanc obtained a photograph of Mr. Newman and prepared a photographic line-up. A few days later he met with Mr. Sias, who viewed the line-up and identified Mr. Newman as the person who shot him. Mr. Sias also made an in-court identification of Mr. Newman at the trial.

Detective LeBlanc testified that Mr. Shelton was also developed as a suspect in the shootings. A few days after Mr. Sias identified Mr. Newman, Detective LeBlanc conducted a second photographic line-up. Mr. Shelton’s picture was in that line-up, and Mr. Sias identified Mr. Shelton as another person who was at the Telemachus Street residence when the shooting occurred.

| (¡Prior to the positive photographic lineup identifications by Mr. Sias, he had been shown a photographic line-up containing the photograph of Hosea Brown, who had been identified in a tip to police as the person who placed the brick of cocaine in the hedge where it was found. Mr. Sias failed to identify Mr. Brown, however.

After the shooting, Mr. Newman left New Orleans. He was arrested in Los Angeles, California seven months after the crime and was returned to New Orleans to stand trial.

At the trial Dr. Richard Tracy, an expert in forensic pathology, testified that he had conducted an autopsy on Mr. Dupre’s body. From the autopsy Dr. Tracy determined that Mr. Dupre had been shot seven times with two different types of bullets. Only one wound was fatal, and that wound was inflicted by a .38 caliber bullet. The other wounds were caused by nine millimeter bullets. Dr. Tracy could not determine in what order the bullets were shot, but he was able to determine that the entry wounds showed that Mr. Dupre had been in various positions during the shooting. Two of the bullet wounds, including the fatal chest wound, left powder marks on Mr. Dupre’s skin, indicating that a gun was discharged between two and fifteen inches from his body. Dr. Tracy testified that toxicology tests conducted in connection with the autopsy showed that there were no illegal substances in Mr. Dupre’s body but that he had a blood alcohol level of 0.01 percent.

NOPD Officer Kenneth Leary, an expert in the field of ballistics and the identification of firearms, testified at the trial regarding his examination of the evidence in this case. He determined that the nine millimeter gun that was found in the alley matched two of the nine millimeter bullets that had been recovered at the autopsy of Mr. Dupre’s body and one of the bullets that was found at the scene of |7the shooting. Of the eleven casings that Officer Leary examined, all of them matched the nine millimeter gun that had been found. Officer Leary also testified that there were three .38 caliber copper bullet jackets found on the scene or recovered at the autopsy. Two of these were definitely fired from the same gun, but the third bullet jacket was deformed such that Officer Leary could not be certain that the deformed jacket was fired from the same gun that fired the other two .38 caliber bullet jackets. Therefore, he could not be absolutely certain that there were only two guns involved in the shootings.

Mr. Dupre’s cousin, Terry McCloughin, testified at the trial. He said that he saw Mr. Dupre in the morning on the day that Mr. Dupre was killed and that Mr. Dupre told him then about the drug transaction involving Mr. Newman. Mr. McCloughin further testified that Mr. Newman and Mr. Dupre were friends.

Tyrone Smith also testified at the trial. Mr. Smith testified that he lived in the neighborhood where the Telemachus Street house was located and that on the night of the shootings, he went outside when he heard what sounded to him like firecrackers. He said that he looked at the porch of the house where the shootings took place and saw two people, one of whom was falling. He testified that the second person that he saw went inside the house. Mr. Smith further said that he approached the house and heard two voices that sounded like two people yelling at each other. He determined that someone was dead in the kitchen based on the conversation that he heard. The man who had been on the porch with the man who had been shot came back outside, went into the street, and turned right toward a canal. A second person then came running from the house, and he turned toward Xavier University. Mr. Smith then saw a black jeep coming down the street.

|sMr. Smith tried to follow the jeep, but he was not able to do so. He then ran to the Xavier University security office, which was nearby, to request help. Mr. Smith said that he had not seen any of the parties well enough to be able to identify them.

After Mr. Smith testified, the defense recalled Detective LeBlanc and questioned him regarding the statements that Mr. Smith had made on the night of the shootings. Mr. Smith had told Detective Le-Blanc that he was in his garage when he heard gunshots. Mr. Smith said that he then ran outside and saw a black male running away and a black jeep driving toward Washington Avenue. Mr. Smith did not tell Detective Leblanc that he had observed the actual shooting of the man he saw on the porch, and he did not report to Detective LeBlanc that he had heard a conversation involving the perpetrators, although Mr. Smith’s testimony at the trial covered these points.

The defense also sought to discredit Mr. Sias’ testimony, and Mr. Sias did admit on cross examination that he had not told the police that he and Mr. Dupre were engaged in a drug transaction with Mr. Newman when he had first been questioned. He also admitted that he had two prior convictions for selling drugs, one in Virginia and one in Maryland. He further admitted that he would face a life sentence as a three time offender if he were convicted of a violent crime in Louisiana, but he denied that the police or district attorney’s office had offered him any consideration for his testimony in this case. Mr. Sias also admitted that he was not shocked to learn that the police had found marijuana packaged for sale at Mr. York’s Telemachus Street home, and he knew that Mr. York owned a gun. He denied, however, that he and Mr. Dupre were armed the night that Mr. Dupre was killed. Finally, Mr. Sias denied that he knew the amount of cocaine that Mr. Dupre |9was planning to sell to Mr. Newman or the purchase price that Mr. Dupre was to receive, although he believed the amount to be at least two kilograms and the price to be $25,000 per kilogram.

When Detective LeBlanc was recalled to the stand, he also testified that Mr. Sias had told detectives on two occasions that he and Mr. Dupre arrived at the Telemachus Street house approximately an hour and a half before Mr. Newman and Mr. Shelton arrived. Additionally, Detective LeBlanc testified that Mr. Sias had never mentioned to him that there had been a meeting at Mr. Newman’s house earlier in the day or that there had been a second meeting at a daiquiri shop. Finally, Detective LeBlanc testified that Mr. Sias had not previously told him that Mr. Shelton was waiting outside in his vehicle when Mr. Newman first entered the Telemachus Street house. In fact, Mr. Sias had told Detective LeBlanc that everyone had been inside the house conducting a business transaction prior to the shooting.

ERRORS PATENT

The trial court judge sentenced Mr. Newman by stating that “it’s going to be the sentence of this Court that Mr. Newman be turned over to the Department of Corrections for the rest of his natural life.” The sentence was not ordered to be served without benefit of parole, probation, or suspension of sentence as required by La. R.S. 14:30(0 .

La. R.S. 15:301.1(A) provides as follows:

When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be | inserved without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

Although La. R.S. 15:301.1(A) was enacted after Mr. Newman’s crime was committed, that statute has retroactive application under State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790. In Williams the Louisiana Supreme Court stated:

In instances where these restrictions are not recited at sentencing, La.Rev.Stat. Ann. § 15:301.1 (A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.

2000-1725, p. 10, 800 So.2d at 799.

The Louisiana Supreme Court held in Williams that the correction of a sentence as mandated by La. R.S. 15:303.1(A) “self-activates” and eliminates the need for the case to be remanded for correction of the sentence. Therefore, this Court recognizes that under the holding of the Williams case, the defendant’s sentence is at hard labor without benefit of probation, parole, or suspension of sentence.

I, DISCUSSION

Assignment of Error No. 1: The evidence presented at trial was insufficient to support a verdict of guilty.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution, U.S. Const, amend. XIV, § 1, creates the following standard of review for federal courts reviewing a state conviction:

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be ... whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.... The relevant question 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 beyond a reasonable doubt.

443 U.S. at 318-19, 99 S.Ct. at 2788-89 (footnote omitted) (citation omitted).

In State v. Mussall, 523 So.2d 1305 (La.1988), the Louisiana Supreme Court stated that “this court ... recognized that ... the Jackson holding also applies to state direct review of criminal convictions ...” Id. at 1309. The Supreme Court in Mus-sall also recognized that the Louisiana Constitution has a due process clause “virtually identical to its Fourteenth Amendment model. La. Const. Art. I, § 2.” Id.

The Supreme Court in Mussall stated that a review of the record in a criminal case does not require the reviewing court to determine whether the reviewing court believes the evidence at the trial established guilt beyond a reasonable doubt. The Supreme Court further stated as follows:

[A] reviewing court must consider the record through the eyes of a hypothetical rational trier of fact who interprets all of the evidence as favorably to the prosecution as any | ^rational fact finder can.... [T]he inquiry requires the reviewing court to ask whether such a hypothetical rational trier of fact interpreting all of the evidence in this manner could have found the essential elements of the crime beyond a reasonable doubt.

523 So.2d at 1309-10 (footnotes omitted). See also State v. Tate, 2001-1658, p. 4 (La.5/20/03), 851 So.2d 921, 928, cert. denied, - U.S. -, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Sellers, 2001-1903, p. 4 (La.App. 4 Cir. 4/10/02), 818 So.2d 231, 234, writ denied, 2002-1322 (La.1/9/04), 862 So.2d 974.

La. R.S. 14:30 defines first degree murder, in relevant part, as follows:

A. First degree murder is the killing of a human being:
(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.
(6) When the offender has the specific intent to kill or to inflict great bodily harm while engaged in the distribution, exchange, sale, or purchase, or any attempt thereof, of a controlled dangerous substance....

La. R.S. 14:24 states that “[a]ll persons concerned in the commission of a crime ... whether they directly commit the act constituting the offense ... [or] aid and abet in its commission ... are principals.”

There is no question in this case that Mr. Dupre, a human being, was killed. Also, Mr. Newman does not dispute that he was present at the Telemachus Street residence on the night Mr. Dupre was killed and that he was there to purchase cocaine, a controlled dangerous substance.

Mr. Newman complains that the State’s entire case is based on the testimony of Mr. Sias, uncorroborated by any physical evidence. Mr. Newman further argues that the testimony given by Mr. Sias at the trial conflicted with Mr. Sias’ own |13pretrial statements. Additionally, Mr. Newman argues that, even according to Mr. Sias’ testimony, Mr. Newman was armed with a nine millimeter gun. Because Mr. Dupre was killed by a bullet from a .38 caliber gun, Mr. Newman claims that he could not have killed Mr. Dupre.

Although at trial Mr. Sias’ testimony conflicted with previous statements he had made to Detective LeBlanc, the inconsistencies were related to the drug transaction in which he participated, not to the shootings that occurred. Mr. Sias’ trial testimony regarding the gunshot wound he received did not deviate from any prior statements that he had made. Additionally, Mr. Sias’ testimony that he was shot with a nine millimeter gun was corroborated by the testimony of Officer Leary, a ballistics expert, and the testimony of Dr. Tracy, an expert in forensic pathology. Dr. Tracy testified that Mr. Dupre was shot multiple times with a nine millimeter weapon. Officer Leary’s testimony established that both Mr. Sias and Mr. Dupre had been wounded with the same nine millimeter gun that was found near the scene of the crime.

Mr. Newman argues that specific intent to kill or inflict great bodily harm, an element of first degree murder, was not established by the State. In State v. Tate, 2001-1658, p. 7 (La.5/20/03), 851 So.2d 921, 930, cert. denied, - U.S. -, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004), the Louisiana Supreme Court stated that “so long as the State sufficiently proves that the defendant is a principal and that he possessed the requisite specific intent, a conviction for first degree murder will be upheld.” Further, “[sjpeeifie intent is a state of mind that may be inferred from the circumstances of the transaction and the actions of the accused.” 2001-1658, p. 8, 851 So.2d at 930.

|14In this case there were a number of circumstances from which a rational trier of fact could have concluded that Mr. Newman had the specific intent to kill or to inflict great bodily harm upon Mr. Dupre. First, there was evidence that Mr. Newman shot Mr. Sias in the head at very close range and that the same gun that was used to shoot Mr. Sias was used to shoot Mr. Dupre numerous times. Mr. Dupre was shot with this gun in the torso, both from the front and the back, in the head, and in other areas of his body. Clearly, shooting Mr. Dupre in the torso and in the head evidences a specific intent on the part of the shooter at least to commit great bodily harm to Mr. Dupre. Further, Mr. Newman does not deny that he was participating in a drug transaction with Mr. Dupre when Mr. Dupre was shot. Therefore, even if the fatal wound were inflicted by someone other than Mr. Newman, Mr. Newman was a principal to the crime because of his intention to kill or inflict great bodily harm upon Mr. Dupre. Thus, he was as culpable as any other person who may have fired the fatal shot. La. R.S. 14:24.

When we view all of the evidence in this case in the light most favorable to the prosecution, we find that any rational trier of fact could have found that all of the essential elements of the crime of first degree murder were present beyond a reasonable doubt. Therefore, this assignment of error is without merit.

Assignment of Error No. 2: The conviction must be overturned, because Mr. Newman was indicted by a grand jury selected pursuant to an impermissible local law.

In his second assignment of error, Mr. Newman argues that he is entitled to a reversal of his conviction, because the grand jury selection procedure used in Orleans Parish at the time that he was indicted was unconstitutional. In State v. Dilosa, 2002-2222 (La.6/27/03), 848 So.2d 546, the Louisiana Supreme Court declared unconstitutional certain statutes and certain parts of statutes relating to the 11flselection of grand juries in Orleans Parish. They were declared unconstitutional on the ground that they constituted local laws that regulated criminal actions and the activities of Orleans Parish criminal courts in violation of La. Const, art. Ill, § 12(A)(3), which prohibits the legislature from passing local laws that concern “any civil or criminal actions, including changing the venue in civil or criminal cases, or regulating the practice or jurisdiction of any court....”

Prior to the decision in the Dilosa case, the Orleans Parish criminal court judges, on a rotating basis, selected grand jurors from a list of names indiscriminately drawn by lot by the jury commissioner from the general venire. The judges also selected the grand jury forepersons. In all other Louisiana parishes the court selected a grand jury foreperson, and the remaining grand jury members were selected by an indiscriminate drawing of names by lot from the grand jury venire. In those parishes, the drawing was conducted by the sheriff.

Mr. Newman argues that he was indicted by a grand jury that was selected pursuant to the procedures established by the statutes that were declared unconstitutional in Dilosa. Therefore, he contends that his conviction should be reversed and his sentence vacated.

In State v. Williams, 2003-0091 (La.App. 4 Cir. 1/14/04), 866 So.2d 296, this Court considered the effect of an indictment made by an Orleans Parish grand jury impaneled pursuant to the statutes that were declared unconstitutional in Dilosa. In the Williams case this Court cited La.C.Cr.P. art. 921, which states that “[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the 11fiaccused.” This Court in the Williams case determined that “the substantial rights of a criminal defendant are not affected per se solely because he is indicted by a grand jury selected pursuant to local laws passed by the Louisiana State legislature.” 2003-0091, p. 3, 866 So.2d at 298. This Court held that “although the trial court erred in denying defendant’s motion to quash his grand jury indictment based on the unconstitutionality of the local laws at issue, there is no showing that the error affected his substantial rights.” Id. (footnote omitted). Therefore, this Court held that the defendant’s indictment, conviction, and sentence were not required to be reversed.

In State v. Mercadel, 2003-3015 (La.5/25/04), 874 So.2d 829, the Louisiana Supreme Court found that a defendant had no standing to challenge certain criminal statutes on the ground that they were prohibited local or special laws under La. Const. art. Ill, § 12(A), because “he failed to establish that application of the subject criminal code articles and statutes had a serious effect on his rights .... ” 2003-3015, p. 831. The Supreme Court found that the Dilosa decision had not addressed the issue of whether a defendant is entitled to relief in the form of quashing his indictment when he has failed to prove that he has suffered injury resulting from the application of the laws that he is challenging. In Mercadel the Supreme Court found that a person can challenge the constitutionality of a legal provision only if the provision seriously affects his or her rights.

In the instant case Mr. Newman has not shown that his rights were seriously affected by the application of the statutes declared unconstitutional in Dilosa. Therefore, under the holdings in the Williams and the Mercadel cases, Mr. |17Newman is not entitled to relief on the ground that the grand jury that indicted him was impaneled in accordance with those statutes.

Additionally, we note that even though prior to his trial Mr. Newman filed several motions to quash his indictment, none of those motions were based on allegations that the statutes governing the procedure for impaneling a grand jury in Orleans Parish were unconstitutional local laws. Mr. Newman’s motions to quash were based on the following grounds: (1) the general grounds for quashing an indictment that are enumerated in La. C.Cr.P. art. 533, (2) the allegation that there has been intentional and systemic exclusion of young, African American males from the grand and petit juries in Orleans Parish, and (3) other matters unrelated to the selection of the grand jury.

At the hearing on the motions to quash the indictment, the trial court judge specifically asked whether Mr. Newman had any evidence to substantiate his allegations in the motions. Mr. Newman’s trial counsel explained that the motions to quash dealt with “the general process” rather than how Mr. Newman was “impacted in any specific instance.” Mr. Newman never argued that the statutes governing the procedures for grand jury selection in Orleans Parish were unconstitutional local laws, and his written motions to quash never raised this issue. Mr. Newman is not entitled to relief based upon his general allegation that the manner in which the grand jury that indicted him was selected was illegal or unconstitutional. To obtain relief he was required to prove how the grand jury | ^selection process was illegal by presenting evidence to support the facts upon which he based his claims that the process was illegal or unconstitutional.

La.C.Cr.P. art. 841 (A) provides in relevant part as follows:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence .... It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

(Emphasis added.) In the instant case Mr. Newman failed to make known to the trial court that he objected to his grand jury indictment on the ground that the statutes regarding the procedure for impaneling a grand jury in Orleans Parish were impermissible local laws. Therefore, we find that he is precluded from raising that claim now.

We also note that any error that may result from the selection of a grand jury pursuant to unconstitutional local laws is corrected by the conviction of a defendant by a constitutionally constituted petit jury. None of the defendant’s federal or state constitutional rights as a criminal defendant are affected by a grand jury being selected pursuant to laws that are unconstitutional solely because they are local laws. As stated in the Williams case, the state constitutional prohibition against local laws “simply reflects a policy decision that legislative resources and attention should be concentrated upon matters of general interest and that purely 11fllocal matters should be left to local governing authorities.” State v. Williams, 2003-0091, p. 3 (La.App. 4 Cir. 1/14/04), 866 So.2d 296, 298.

Mr. Newman cannot now complain about the grand jury selection process. This assignment of error is without merit.

Assignment of Error No. 3: Mr. Newman was indicted by a grand jury chosen in a manner susceptible to a discriminatory selection process in violation of the Sixth Amendment fair cross-section requirement and the Fourteenth Amendment guarantees of due process and equal protection.

Mr. Newman contends that the procedure by which Orleans Parish grand juries and grand jury forepersons were selected at the time of his indictment was susceptible to discrimination. In particular, Mr. Newman alleges that there was systemic discrimination against black males in the selection of grand juries such that he was denied his rights under both the state and federal constitutions.

In State v. Fleming, 2002-1700, p. 5-6 (La.App. 4 Cir. 4/16/03), 846 So.2d 114, 120, writ denied, 2003-1391 and 2003-1393 (La.11/26/03, 860 So.2d 1132), this Court discussed the legal framework for analyzing claims of discrimination with respect to grand jury selection as follows:

To demonstrate an equal protection violation based on discrimination in the selection of the grand jury itself or the foreperson, a defendant is required to establish a prima facie case of purposeful discrimination. Under the seminal case, Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), a prima facie showing of purposeful discrimination is established by proving “over a significant period of time” that “substantial under-representation” has occurred of a “recognizable distinct class, singled out for different treatment under the laws.” ... One method of establishing such purposeful discrimination is by satisfying the following three-prong test:
1. Those alleged to be discriminated against belong to an identifiable group in the general population.
2. The selection process is subject to abuse according to subjective criteria.
3. The degree of underrepresentation, as shown by | ¡^comparing the proportion of the group at issue found in the general population to the proportion called to serve.

If we apply the analysis discussed in Fleming to the facts of the instant case, the first two prongs of the test are not at issue. First, it is undisputed that black males constitute an identifiable group capable of being singled out for disparate treatment. Second, it is undisputed that the procedure for selecting both the grand juries and the grand jury forepersons in Orleans Parish at the time of Mr. Newman’s indictment was subject to abuse according to subjective criteria that could include race and sex. The dispute arises in connection with the third prong of the test. Mr. Newman, however, did not present any statistical or other evidence to support his claims of discrimination.

To succeed in claiming discrimination in the grand jury selection process, Mr. Newman was required to present a prima facie case supporting his allegations. Mr. Newman’s trial counsel stated that the motion to quash dealt with “the general process and not any specifics as to how my client is impacted in any specific instance.” Mr. Newman presented no evidence in support of his motion when he had the opportunity to do so. This assignment of error is without merit.

Assignment of Error No. 4: Mr. Newman’s conviction must be overturned, because the record of the trial is incomplete depriving Mr. Newman of his right to full judicial review as guaranteed by the Louisiana Constitution.

In this assignment of error, Mr. Newman contends that the record is incomplete and that he will be denied the protection of La. Const art. I, § 19, which provides that no citizen shall be “subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” In his brief to this Court Mr. Newman stated that the transcript of the voir dire proceedings did not contain the actual selection of the | ^jurors and the exercise of any challenges that were made. After the brief was filed, this Court directed that the record be supplemented with that portion of the proceedings, and this has been done.

Although in his reply brief Mr. Newman has acknowledged that the record has been supplemented with the missing jury selection proceedings, he now contends that the transcript does not indicate that he was present during these proceedings as he was entitled to be. The transcript of the voir dire, however, shows that the trial court judge introduced Mr. Newman to the prospective jurors and asked him to stand. Clearly, Mr. Newman was, in fact, present during the jury selection process.

Mr. Newman also claims in his reply brief that there is no evidence that he was present during the in camera proceedings during which challenges to prospective jurors were exercised. There is no indication, however, that he was absent. If he were absent, no objection to this was lodged at the trial.

In State v. Kahey, 436 So.2d 475, 483 (La.1983), the Louisiana Supreme Court stated:

Presence of the defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only. Therefore, the presence of the defendant is only essential at proceedings which have a reasonably substantial relation to the fullness of the opportunity of the defendant to defend against the charge. From this principle has emerged the general rule that no claim of error, or at least no claim of prejudicial error, can be based upon the exclusion or absence of a defendant, pending his trial on | Ma criminal charge, from the courtroom, or from a conference between court and attorneys, during argument on or discussion of a question of law.

(Citations omitted.) We, therefore, find that Mr. Newman’s assignment of error claiming that there was no evidence that he was present during in camera proceedings is without merit.

Assignment of Error No. 5: The order of the trial court granting Mr. Newman’s motion for a new trial was improperly reversed by this Court. The seating of a juror who was a career law enforcement officer and a juror who had an undisclosed relationship with the victim deprived Mr. Newman of his constitutional right to a fair trial.

Mr. Newman contends that this Court should not have reversed the trial court’s decision to grant his motion for a new trial. The State, however, argues that Mr. Newman has not presented any new evidence that would justify overruling this Court’s earlier decision. The State also argues that the earlier decision is the law of the case and should not be now disturbed.

In State v. Gillet, 99-2474 (La.App. 4 Cir. 5/10/00), 763 So.2d 725, this Court discussed the law of the case doctrine as follows.

This Court has stated that “an appellate court will not reverse its pretrial determinations ... unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result. While a different decision on appeal is not absolutely precluded, judicial efficiency demands that great deference be accorded to the earlier decision.”

763 So.2d at 728 (citations omitted).

After his conviction Mr. Newman moved for a new trial on the grounds that two jurors failed to disclose pertinent information during voir dire. One juror was alleged to have known Mr. Dupre, but she could not be served, so she could not be | ^questioned regarding whether or not she had known Mr. Dupre. Another juror was alleged to have been employed as a law enforcement officer at the time she served on the jury. This juror testified at the hearing on the motion for a new trial. She said that she had been a probation officer for one year but that at the time of the trial, she was unemployed. She further testified that she did not disclose her prior employment, because she was never asked about it during voir dire, something that she thought was unusual.

The trial court originally granted a new trial based on the fact that this juror had not disclosed during voir dire that she had once worked as a probation officer. This Court, however, reversed the trial court’s decision. Based on a review of her testimony at the motion for a new trial, this Court determined that the juror had fairly and impartially considered the case against Mr. Newman. Additionally, not only had this juror’s background not prejudiced Mr. Newman, it may have also spared Mr. Newman from the death penalty. She stated that “my knowledge of the law is why we did not give him the death penalty.”

Mr. Newman still argues, however, that because one of the jurors allegedly knew Mr. Dupre, he is entitled to a new trial. That juror did not testify at the motion for a new trial, but Mr. Newman’s counsel argued that even without her testimony, it was clear that she knew Mr. Dupre, because there was evidence that they had attended Xavier University at the same time. Because Mr. Dupre was a star player on the university’s basketball team, Mr. Newman’s counsel argued that_[^the juror had to have known Mr. Dupre. This argument presupposes, without any evidence, that the juror was a basketball fan. Further, even if this juror were a basketball fan who knew of Mr. Dupre, this does not mean that they were friends or had any other type of relationship.

Attached to Mr. Newman’s brief to this Court is an affidavit of Rasheed M. Lae-our, in which he declared that he attended Xavier University at the time the juror and Mr. Dupre attended the university, that he knew both of them, and that he saw them together on campus on several occasions. The affidavit is not part of the record in this case, however, and we cannot consider it.

We also note with respect to the allegation that a juror knew Mr. Dupre that the voir dire transcript reflects that an unidentified prospective juror, who was on the same panel as the juror who was alleged to have known Mr. Dupre, asked whether Mr. Dupre was a basketball player at Xavier. When the prosecuting attorney replied affirmatively, he asked the unidentified prospective juror whether she knew Mr. Dupre, and she said that she did. When the prospective juror was asked whether the fact that she knew Mr. Dupre would affect her ability to serve as an impartial juror, she said, “No, I didn’t even know he got killed.” The prospective juror did not know Mr. Dupre well, and she specifically stated that the fact that she had some prior knowledge of him would have no effect on her ability to serve as a fair and impartial juror. In all likelihood this prospective juror was the juror that Mr. Newman now claims knew Mr. Dupre. If so, she clearly did not have a relationship with him.

Based on the voir dire transcript, the transcript of the testimony of the juror who had been employed as a probation officer prior to the trial, and our prior review of the trial court’s decision granting a new trial, we find that there is no | ¡¡^reason to reconsider our earlier decision reversing the trial court’s decision. This assignment of error is without merit.

Assignment of Error No. 6: Mr. Newman was represented at trial by counsel who did not provide him with constitutionally effective assistance in violation of his Sixth and Fourteenth Amendment rights under the United States Constitution and the Constitution of the State of Louisiana.

With regard to raising on appeal a claim of ineffective assistance of counsel, the Louisiana Supreme Court stated in State v. Prudholm, 446 So.2d 729 (La.1984), that a “defendant’s remedy is through post conviction relief in the trial court where the quality of the attorney’s assistance can be fully developed and explored.” Id. at 737. In State v. Ratcliff, 416 So.2d 528 (La.1982), however, the Louisiana Supreme Court determined that “[sjince the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, in the interest of judicial economy we will address the issue now”. Id. at 530. See also State v. Seiss, 428 So.2d 444 (La.1983). In the instant case, this Court finds that an evidentiary hearing at the trial court level is not necessary, because the record before us is sufficient for the determination of counsel’s effectiveness at trial.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court of the United States articulated the test for determining the effectiveness of a criminal defendant’s counsel as follows:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as 12fito deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687, 104 S.Ct. 2052.

Louisiana courts have adopted the two-pronged test established in the Strickland case for determining the effectiveness of counsel. See, e.g., State v. Fuller, 454 So.2d 119 (La.1984); State v. Wilson, 2000-1736 (La.App. 4 Cir. 11/14/01), 803 So.2d 102.

In State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063, the Louisiana Supreme Court discussed the effective assistance of counsel that a criminal defendant is afforded. The Supreme Court stated as follows:

A criminal defendant is guaranteed the effective assistance of counsel. U.S. Sixth Amendment; La. Const, art. I § 13. To prevail on a claim of ineffective assistance, a defendant must demonstrate (1) that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome. The Sixth Amendment does not guarantee “errorless counsel [or] counsel judged ineffective by hindsight,” but counsel reasonably likely to render effective assistance. Judicial scrutiny must be “highly deferential” and claims of ineffective assistance are to be assessed on the facts of the particular case as seen from “counsel’s perspective at the time,” hence, courts must indulge “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. ”

99-0584, p. 20; 1078-79 (footnotes omitted and emphasis added).

In State v. Brooks, 505 So.2d 714 (La.1987), the Louisiana Supreme Court stated that “hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” Id. at 724. This Court l^has also recognized that if the trial counsel’s actions fall “within the ambit of trial strategy”, they do not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4 Cir.1986).

In the instant case Mr. Newman claims that he received ineffective assistance from his trial counsel, because his trial counsel failed to conduct an adequate voir dire on the issue of the potential jurors’ prior relationships with Mr. Dupre and on the issue of the potential jurors’ employment in the field of law enforcement. ■ Additionally, Mr. Newman complains that his trial counsel should have produced evidence at the motion for a new trial to show that one of the jurors had a significant relationship with Mr. Dupre.

We find no evidence that the failure of Mr. Newman’s trial counsel to inquire about the ties of any of the potential jurors to law enforcement in any way prejudiced Mr. Newman. At the hearing on the motion for a new trial, the juror who admittedly had prior law enforcement experience testified that her background not only did not affect her ability to serve as a fair and impartial juror, it may have resulted in Mr. Newman receiving a life sentence in lieu of the death penalty. We also note that at the time of the trial the juror was no longer employed as a probation officer and that she had only worked as such for one year. She was clearly not a career law enforcement officer.

In the case of the alleged relationship between one of the jurors and Mr. Dupre, there is nothing in the record to substantiate any such relationship. Further, there is nothing in the record to support a finding that the failure of this juror to testify at the hearing on the motion for a new trial was through any fault on the part of the trial counsel. This juror was unable to be served, a circumstance that was beyond the control of Mr. Newman’s counsel.

li>RWe do not find that Mr. Newman’s trial counsel either prejudiced Mr. Newman’s defense or failed to furnish him with the representation to which he was entitled under the state and federal constitutions. Mr. Newman’s assignment of error is without merit.

Assignment of Error No. 7: Mr. Newman’s sentence of life in prison without the benefit of parole, probation, or suspension of sentence is constitutionally excessive, in violation of his Eighth and Fourteenth Amendment rights.

Mr. Newman complains that his sentence is excessive in this assignment of error. He contends that his constitutional rights have been violated by the imposition of a sentence of life imprisonment.

The Louisiana Constitution expressly provides that “[n]o law shall subject any person to cruel, excessive, or unusual punishment.” La. Const, art. 1, § 20. Although the United States Constitution does not expressly prohibit “excessive punishment”, it does prohibit “cruel and unusual punishment.” U.S. Const, amend. VIII.

In State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, 977, the Louisiana Supreme Court stated that the deliberate inclusion of the prohibition against excessive sentences in the state constitution by its redactors imposed on the court the duty to review the sentencing provisions of criminal statutes. The Supreme Court further stated that the court was permitted to determine both whether the statutory range of sentences and the sentence of a particular offender was excessive, even if that offender’s sentence were within the prescribed statutory range. Id.

In State v. Bonanno, 384 So.2d 355 (La.1980), the Louisiana Supreme Court discussed the criteria for determining whether a sentence is unconstitutionally excessive as follows:

| 2q[T]o determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.

384 So.2d at 358 (citations omitted).

In State v. Soco, 441 So.2d 719 (La.1983), the Supreme Court also stated that “[mjaximum sentences provided by the statutes are reserved for the ‘worst kind of offender’.” Id. at 720, citing State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982). The Supreme Court further stated:

In order for there to be proper review of the sentence to determine its constitutionality, La. Const, art. 1, § 20, that is, whether the defendant is the worst kind of offender, an adequate record specifying the basis for the sentence must be made. This record is mandated by C.Cr.P. 894.1, which also provides the sentencing judge with guidelines to follow when passing sentence.

Id. The Supreme Court has also stated that “[i]f the judge records the factors affecting his sentencing decision, the sentence should not be set aside as excessive unless it is grossly disproportionate to the offense or represents nothing more than the needless infliction of pain and suffering.” State v. Pike, 426 So.2d 1329, 1335 (La.1983).

In the instant case, Mr. Newman did not receive the maximum penalty for his crime. He was spared the death penalty by the jury. The crime he committed was an extremely grave offense, and the record in this case clearly establishes that his sentence was fully justified. He did not dispute that he was engaging in a drug transaction with Mr. Dupre at the time that Mr. Dupre was murdered. He shot Mr. Sias in his face at close range, which certainly evidenced a specific intent to kill or laninflict serious bodily injury to Mr. Sias. Then he shot Mr. Dupre numerous times, and some of the shots were fired into Mr. Dupre’s back. Mr. Newman’s conduct put at least two lives at risk, caused the death of Mr. Dupre, and manifested deliberate cruelty. Additionally, there was no evidence of any mitigating circumstances. The sentence imposed does not shock our sense of justice. It does not represent the needless infliction of pain and suffering. It was appropriate. This assignment of error is without merit.

Assignment of Error No. 8: The trial court erred in failing to articulate the considerations for the sentence as required by La.C.Cr.P. art. 894.1(C).

Mr. Newman complains that the trial court judge did not state on the record the considerations that were taken into account in imposing, his sentence, as required by La.C.Cr.P. art. 894.1(C). M-though the transcript of Mr. Newman’s sentencing hearing does not indicate that the trial court judge expressly stated the considerations for Mr. Newman’s sentence, this Court in State v. Green, 99-2847, p. 8 (La.App. 4 Cir. 11/29/00), 779 So.2d 835, 840, stated that “[w]hen the statute provides for a mandatory sentence, it is an exercise in futility for the trial court to enumerate its reasons for sentencing.” See also State v. Wallace, 2003-0193, p. 27 (La.App. 4 Cir.11/26/03), 862 So.2d 286, 303, where this Court reiterated that “it is an exercise in futility for the court to enumerate reasons for sentencing” when a mandatory minimum sentence is imposed. This assignment of error is without merit.

CONCLUSION

We find no errors in the conviction and sentencing of Mr. Newman. His conviction and sentence are hereby affirmed.

AFFIRMED.

11 JONES, J.,

concurs with reasons.

I agree that the conviction and sentence of Gordon Newman should be affirmed on the record before us at this time. However, for me, this defendant must seek review of a claim of ineffective assistance of counsel in post conviction. Further, at some point a petition for a writ of a habeas corpus in the federal judicial system must be considered to address the discriminatory manner in the selection of the grand jury which indicted him.

Trial counsel must be prepared to demonstrate why he did not present competent statistical evidence evidencing purposeful discrimination against African Americans in the selection of the grand jurors and in the selection of the foreperson of the grand jury. Any reasonable review of this question suggests the data was available to trial counsel, and could have been presented in support of the Motion to Quash the indictment. Failure to do so was clearly prejudicial to the defendant.

Further, a habeas corpus proceeding would present the federal question of a Fourteenth Amendment violation by the state of Louisiana in permitting the discriminatory local law to be utilized in Orleans Parish.

The majority clearly misses one of the points of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) when they suggest that any prejudice to this 1 ¡.defendant in selecting the grand jury by an impermissible local law was cured when a properly selected petit jury convicted him. An additional aspect of Batson was not just the prejudice to the defendant, but also the prejudice sustained by the prospective juror (or grand juror) in the selection process. Thus, for this judge, what may have been a pattern of racial discrimination in the Orleans Parish Criminal Court in perhaps systematically excluding African Americans as prospective forepersons of the grand juries, may very well have constituted violations of the U.S. Constitution. Such violations must be reviewed by the Federal Courts to determine whether this defendant, who timely objected to the composition of the grand jury, is entitled to relief.

For these reasons, I must agree to affirm the conviction and sentence of Gordon Newman.

      . At the time of the trial Mr. LeBlanc was no longer employed by the NOPD, but we will still refer to him as Detective LeBlanc.

      . At the trial the parties stipulated that testing of the object confirmed that it was cocaine. There was also a stipulation that the object, the firearms, and the ammunition were tested for fingerprints and did not yield any fingerprints that were identifiable.

      . Mr. Shelton was killed a few days after he was identified by Mr. Sias but before he could be apprehended by the police. At the trial Detective LeBlanc testified that the police never developed a link between the killing of Mr. Dupre and the killing of Mr. Shelton.

      . La. R.S. 14:30(C) provides that first degree murder shall be punishable either by "death or by life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence" as determined by the jury.

      . This prohibition does not apply where the state constitution provides otherwise.

      . Article 533 states that one of the grounds for quashing an indictment is that ''[t]he manner of selection of the general venire, the grand jury venire, or the grand jury was illegal” La. C.C.Pr. art. 533(1).

      . We note that the issue raised in this case regarding a grand jury that was selected pursuant to laws that are unconstitutional under the Louisiana constitution solely because they are prohibited local laws is a completely different issue from the federal and state constitutional claims that have been raised in connection with grand juries that are selected by procedures that systematically exclude persons based on prohibited discriminatory criteria. Indictment by those grand juries deprives a defendant of federal and state constitutional guarantees to which all criminal defendants are entitled. See, e.g., Rideau v. Whitley, 237 F.3d 472, 484 (5th Cir.2000).

      . La. C.C.Pr. art. 831 provides that a defendant charged with a felony shall be present at certain, specified stages of the proceedings against him, including the impaneling of the jury.

      . The attorney who prepared the reply brief was not Mr. Newman's trial counsel and, therefore, cannot personally verify Mr. Newman's presence or absence during the juiy selection proceedings.

      . There was evidence that both she and Mr. Dupre had attended Xavier University at the same time, but there was no evidence regarding the relationship, if any, between the juror and Mr. Dupre.

      . We note that we do not agree with Mr. Newman's characterization of this juror as a "career law enforcement officer” in light of the fact that she was not employed at the time of the trial and had worked as a probation officer for only one year.


source: Caselaw Access Project

author: [.MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Stephen A. HANSEL v. Sarah Holyfield, Wife of Stephen A. HANSEL.
    No. 2002-CA-2762.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 2004.

      Edith H. Morris, Suzanne Ecuyer Bayle, Morris, Lee & Bayle, LLC, and Paul Mira-bile, Middleberg, Riddle & Gianna, and Suzette Marie Smith Lowe, Stein, Hoffman, Allweiss & Hauver, LLP, New Orleans, LA, for PlaintiffiAppellant.
    Theon A. Wilson, Law Offices of Theon A. Wilson, Shelley Hammond Provosty Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., Gwendolyn M. Hanhart, Law Offices of Gwendolyn M. Hanhart, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR.).
   [.MICHAEL E. KIRBY, Judge.

Plaintiff, Stephen Hansel, appeals the August 30, 2002 trial court judgment denying his motions to reduce his child support obligations, and the pre-trial ruling holding that the issue of his former wife’s employa-bility is res judicata. His former wife, Sarah Holyfield Hansel, answered the appeal, asking that the trial court judgment be upheld, or, alternatively, that the judgment be modified on the issues of her responsibility for 15% of the children’s extraordinary expenses and the retroactivity of the trial court judgment. We affirm the trial court judgment and the pre-trial ruling appealed from for reasons stated below.

The history of this litigation is set forth in this Court’s previous decisions in Hansel v. Holyfield, 2000-0062 (La.App. 4 Cir. 12/27/00), 779 So.2d 939, and Hansel v. Hansel, 2000-1914 (La.App. 4 Cir. 11/21/01), 802 So.2d 875. In the instant matter, Stephen seeks to reduce his child support obligations from the amount originally set by the parties’ consent judgment of April 24, 1997. That judgment and a subsequent amendment ordered Stephen to pay Sarah monthly child support of $11,800.00, and 100% of the two minor children’s private school tuition and related school expenses, medical insurance, child health care costs not covered by insurance, and summer camp fees.

^Stephen previously sought a reduction of his child support obligations in 1998. The trial court granted Stephen’s motion to reduce child support, but this Court found that the trial court abused its discretion in granting this reduction, and reinstated the amounts owed under the 1997 consent judgment. See, Hansel v. Hansel, 2000-1914 (La.App. 4 Cir. 11/21/01), 802 So.2d 875.

Since the time that Stephen filed his first motion to reduce child support, the parties have partitioned their community property, which included exercised stock options from Stephen’s former employment with Hibernia National Bank. The net proceeds from the exercise of the stock options alone were approximately $14,000,000.00 for Stephen and $7,000,000.00 for Sarah. Amazingly, the matter currently before us is not about increasing the amount of support for the minor children; it involves a request by Stephen for a reduction in the amounts owed by him for child support even though the amount he currently pays was set prior to his receipt of at least fourteen million additional dollars.

In his current motion to reduce child support, Stephen alleges the following grounds in support thereof: 1) Sarah had a change in financial circumstances in July 2001 when she received approximately $7,000,000 in “investable assets” in their partition of community property; 2) the youngest child reached the age of five, and thus Sarah could seek employment outside of the home; and 3) Stephen’s financial circumstances changed, as he is no longer president and CEO of Hibernia Corporation/Hibernia National Bank and has not been able to find equivalent employment. Stephen argues that he is not seeking to reduce the children’s lifestyle; rather, he seeks to equitably apportion the child support expenses between Sarah and himself.

| aAfter a lengthy trial of this matter, which included six days of testimony from the parties, their accountants and experts in financial planning and investing, the trial court denied Stephen’s motion to reduce his monthly child support obligations, but the court apportioned to Sarah 15% of the tuition and related school expenses, uninsured child health care costs, and summer camp fees. Because these expenses were previously assessed completely to Stephen, the judgment effectively granted relief to Stephen by reducing the overall amount of the children’s expenses for which he is responsible.

Nonetheless, Stephen appealed the August 30, 2002 judgment, arguing that the trial court erred in failing to grant his motion to reduce child support, and in excluding evidence of Sarah’s employability by holding that the issue was res judi-cata. In arguing that the trial court erred in failing to grant his motion to reduce child support, Stephen sets forth the following specific arguments: a) the trial court made a legal error in finding Sarah’s assets to be legally insignificant; b) the court erred in finding Stephen’s assets to be $23,000,000.00; c) the court made a legal error in not requiring Sarah to bear her proportionate share of all the child support expenses, rather than just requiring her to bear a small portion of the expenses of tuition, uninsured medical expenses and camp fees; d) the court made a legal error in failing to allocate the total child support expenses in proportion to the ability of the respective parties to earn income; e) the court made a legal error in denying a reduction on the basis that Stephen could afford to pay the amounts set forth in the original judgment; f) the court made a legal error in allowing Sarah to include, as an expense of the children, the excess cost of her self-chosen ten year mortgage; and g) the court made a legal error by, in effect, ordering Stephen not to return to court on the subject of child support for three years.

|4We initially note that the August 30, 2002 trial court judgment simply denied Stephen’s motions to decrease child support and ordered Sarah to assume responsibility for 15% of the children’s tuition, related school expenses, uninsured health care costs and summer camp fees. Most of the factual and legal errors alleged by Stephen are based on statements made by the trial court in its written reasons for judgment. Appeals are taken from the judgment, not the written reasons for judgment. Greater New Orleans Expressway Commission v. Olivier, 2002-2795, p. 3 (La.11/18/03), 860 So.2d 22, 24; Kern v. Kern, 2000-1126 (La.App. 4 Cir. 4/25/01), 786 So.2d 193.

Stephen argues that Sarah’s circumstances have materially changed since the time of the previous award because she has received several million dollars in assets when there was a partition of the community property, which included Hibernia Corporation stock options that were exercised by the parties. Stephen further argues that with at least seven million dollars in “investable assets,” Sarah now has the ability to pay a proportionate share for the children’s support, and Stephen’s share should be reduced by Sarah’s proportionate share.

La. C.C. article 141 states, in pertinent part, as follows:

In a proceeding for divorce or thereafter, the court may order either or both of the parents to provide an interim allowance or final support for a child based on the needs of the child and the ability of the parents to provide support.

The determination of child support is based on the rules set forth in La. R.S. 9:315 et seq. La. R.S. 9:315.2(0, regarding calculation of the basic child support obligation provides as follows:

The parties shall combine the amounts of their adjusted gross incomes. Each party shall then determine by percentage his or her proportionate share of the | ^combined amount. The amount obtained for each party is his or her percentage share of the combined adjusted gross income.

However, La. R.S. 9:315.13(B) states:

If the combined adjusted gross income of the parties exceeds the highest level specified in the schedule contained in R.S. 9:315.19, the court shall use its discretion in setting the amount of the basic child support obligation in accordance with the best interest of the child and the circumstances of each parent as provided in Civil Code Article 141, but in no event shall it be less than the highest amount set forth in the schedule.

It is undisputed that the combined adjusted gross income of the parties in this case exceeds the highest level specified in the schedule in R.S. 9:315.19.

We note that the child support guidelines set forth in La. R.S. 9:315 et seq., use both parents’ income in determining the amount of the child support obligation. Throughout these proceedings, Stephen has incorrectly used the word “assets” interchangeably with the word “income.”

Stephen relies on the Second Circuit case of Schult v. Schult, 36,283 (La.App. 2 Cir. 8/28/02), 827 So.2d 465, in support of his position that Sarah’s assets acquired since the time of the original child support award should be considered in assessing her ability to provide for the children. The Schult case is distinguishable from the facts of the instant case. In Schult, the Second Circuit affirmed the trial court’s finding that the father’s investment portfolio produced income and included that income in determining that the father’s income exceeded $10,000.00 per month so as to justify deviation from the child support guidelines under La. R.S. 9:315 et seq.

The standard for modification of a child support award is set forth in La. C.C. article 142 and La. R.S. 9:311(A). La. C.C. article 142 states:

RAn award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary.

La. R.S. 9:311(A) provides that:

An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.

The trial court has great discretion in decisions concerning modification of child support decrees, and such decisions will not be disturbed on appeal absent a clear abuse of discretion. Hansel v. Hansel, 2000-1914, p. 4 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, 879.

In this case, the financial circumstances of both parties improved substantially through the exercise of the Hibernia Corporation stock options, which were included in the community property partition. The most conservative view of the evidence shows that Stephen received net liquid assets of approximately $14,000,000.00 and Sarah received net liquid assets of approximately $7,000,000.00 in the community property partition.

As stated above, the party seeking modification of child support has the burden of proving that one of the parties has had a material change in circumstances since the time of the previous award. We find, as did the trial court, that Stephen has not carried his burden of proving a material change in circumstances so as to justify a reduction of $11,800.00 monthly child support obligation. While the financial circumstances of both parties improved substantially due to the exercise of the stock options, the relative positions of the parties remained the same. The change in Sarah’s financial circumstances, while 17substantial, is modest when compared to the much more dramatic improvement in Stephen’s financial circumstances since the original award.

However, even though Stephen did not prove that Sarah has had a material change in circumstances sufficient to warrant a modification of his monthly child support obligation, the evidence supports the trial court’s decision to assess 15% of the children’s tuition and other extraordinary expenses to Sarah. Therefore, the trial court’s assessment of this amount to Sarah was reasonable.

Many of Stephen’s arguments seem to have less to do with proving a material change of circumstances to justify a modification of his child support obligation, and more to do with his disapproval of many of Sarah’s financial decisions made since the 1997 consent judgment, including mortgage refinancing decisions, investment decisions and charitable contributions. In 2001, Sarah refinanced her home mortgage for a ten-year period. This occurred six years into the term of the previous home mortgage. Stephen argues that the ten-year mortgage unfairly benefits Sarah because the house, which is in Sarah’s name alone, will be almost paid for when the youngest child turns eighteen. This is not proof of a material change in circumstances to justify reducing his child support obligation even though the monthly mortgage note for a ten-year mortgage is greater than a monthly note on a thirty-year mortgage would be.

Furthermore, Stephen has not made a sufficient showing that the amounts paid by him in child support are being used for purposes other than providing for the children. The children are entitled to the same lifestyle they would have enjoyed if their parents had not divorced. The home maintenance expenses listed by Sarah, while certainly high, are reasonable when considering that the house in which the children have lived with their mother since their parents’ divorce and lswith both of their parents prior to the divorce is a 6,675 square foot house with surrounding grounds, all requiring significant maintenance and repair. Therefore, Sarah’s use of child support for the portion of these expenses allocated to the children is appropriate.

In addition to appealing the trial court’s August 30, 2002 judgment denying his motions to decrease child support, Stephen also appeals the trial court’s pre-trial ruling excluding evidence of Sarah’s em-ployability by holding that the issue was res judicata. The trial court subsequently denied Stephen’s motion for new trial taken from that ruling.

Sarah correctly argues that Stephen’s 2002 Second Amended Motion regarding Sarah’s employment status does not allege any significant circumstances that have changed since the issue was last considered in 1998, and which this Court addressed in Hansel v. Hansel, 2000-1914 (La.App. 4 Cir. 11/21/01), 802 So.2d 875. Therefore, the previous ruling that Sarah is not underemployed, which was affirmed by this Court in the 2001 decision, is res judicata.

The trial court’s denial of Stephen’s motion to reduce child support and its pretrial ruling that the issue of Sarah’s em-ployability is res judicata are not manifestly erroneous. For the reasons stated above, the trial court’s August 30, 2002 judgment and the May 21, 2002 pre-trial ruling and September 9, 2002 denial of the motion for new trial filed in response thereto are affirmed.

AFFIRMED.


author: JjDAVID S. GORBATY, Judge. h CANNIZZARO, J.,

text:
    Willy Mae THOMAS v. STATE of Louisiana, through the DEPARTMENT OF CORRECTIONS, Orleans Parish Criminal Sheriff's Department, and City of New Orleans.
    No. 2004-CA-0210.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 2004.

      Newton K. Muhammad, Muhammad & Savoie, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Lambert J. Hassinger, Jr., T. Allen Usry, John F. Weeks, II, Usry, Weeks & Matthews, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, Jr.).
   JjDAVID S. GORBATY, Judge.

Willie Mae Thomas appeals the granting of summary judgment in favor of defendants, the Orleans Parish Criminal Sheriffs Office and the State of Louisiana through the Department of Corrections. For the following reasons, we dismiss the appeal, without prejudice.

STATEMENT OF FACTS:

Derrick Thomas (Thomas) died on November 10, 1997 while serving a sentence with the State of Louisiana through the Department of Corrections (DOC). It is alleged that at the time of his death, Thomas was in the physical custody of the Orleans Parish Criminal Sheriffs Office (Sheriff).

On January 28, 1998, Thomas’ mother, Willy Mae Thomas (Ms. Thomas), filed a Petition for Wrongful Death and Survival Action against the DOC, the Sheriff, and the City of New Orleans. On September 19, 2003, an amended petition was filed, naming Louisiana State University Health Science Center, School of Medicine in New Orleans (LSU) and Dr. Margarite R. Pore-da (Dr. Poreda) as additional defendants.

The Sheriff and the DOC each filed a Motion for Summary Judgment; and the matters were presented to the trial court on September 22, 2003. After oral | a argument, the trial court ruled from the bench, granting the Sheriffs Motion for Summary Judgment. The judgment on behalf of the Sheriff was signed on December 2, 2003. At the same time, the DOC’s Motion for Summary Judgment was granted as unopposed. That judgment was signed on December 3, 2003. On November 19, 2003, Ms. Thomas filed a devolutive appeal of the judgment dismissing the Sheriff.

DISCUSSION:

This action was filed on January 28, 1998. La.Code Civ. Proc. art. 1915(B), as amended in 1997, applies in this matter and provides in pertinent part:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, theories or parties, whether in an original demand, reconventional demand, cross-claim, third party claim or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

In Jackson v. America’s Favorite Chicken Co., 98-0605, p. 11 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060, 1066, this Court examined the prior decisions of this circuit concerning La.Code Civ. Proc. art. 1915 certification, and issued a set of general rules to be applied to future appeals of partial judgments that lack proper certification. Those rules include the following: (1) a trial court’s mere signing of an order for appeal from a partial judgment will not make that judgment immediately appeal-able; and (2) the record must contain and clear and concise ^statement by the trial court of why there is no just reason for delay. Id. Mere conclusory statements do not suffice.

In the present case, it appears from the record that at least two viable defendants, namely LSU and Dr. Poreda, remain. The judgment dismissing the Sheriff is therefore a partial judgment which, in order to be immediately appealable under article 1915(B), must be certified by the trial court as a final judgment. The record contains no such certification. Accordingly, we dismiss the appeal, without prejudice. After final judgment is rendered adjudicating all of the claims, demands, issues, and theories as to all parties involved, the complained of partial summary judgment will be appealable. Jackson, supra at p. 4, 729 So.2d at 1063.

APPEAL DISMISSED, WITHOUT PREJUDICE.

h CANNIZZARO, J.,

CONCURS WITH REASONS.

I concur in the result in this case. I do not, however, think that La. C.C. Pr. art. 1915(B), as in effect at the time the instant case was filed, required the trial court to specify the reasons used by the court to determine that there was no just reason for a delay in taking an appeal.

Despite the language in Jackson v. America’s Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060, discussed in the majority opinion, article 1915(B) provided only that a judgment would not constitute “a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” I do not interpret this language to require the trial court to give the underlying reasons for the court’s determination that there is no just reason for delay. Rather, I think the trial court is required to state that the judgment is designated as final judgment and that there is no just reason for there to be a delay in taking an appeal. I believe that when a trial court states without equivocation that a judgment has been determined to be a final judgment and that there is no reason to delay an appeal, this Court should defer to the trial court’s determination without requiring a statement of reasons for the determination.

      . Ms. Thomas' appellant brief makes reference to the trial court's granting of an Exception of No Cause of Action in favor of the City of New Orleans on September 29, 2003. The appeal record does not contain any such judgment, nor is it reflected in the transcript of the September 22, 2003 hearing. The status of the exception is not relevant to this appeal.


author:
| .WOODARD, Judge.
      h COOKS, J.,

text:
    Melba BRAUD v. Dr. William A. CENAC, et al.
    No. 2003-1696.
    Court of Appeal of Louisiana, Third Circuit.
    July 14, 2004.

      Charles G. Justice III, Spiro J. Verras, Pan-American Life Center, New Orleans, LA, for Plaintiff/Appellant, Melba Braud.

      Tiffany B. Thornton, James R. Shelton, Durio, McGoffin & Stagg, Lafayette, LA, for Defendant/Appellee, Dr. William A. Ce-nae, M.D.
    Eugene J. Sues, Misty Shannon Antoon, Barbara L. Bell, Randall M. Seeser, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellee, M. Angela Mayeux.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   | .WOODARD, Judge.

Ms. Braud appeals the trial court’s dismissal of the two Defendants via exceptions of prescription. We must affirm the trial court’s judgments.

* * *

The Plaintiff, Ms. Melba Braud, sued both Dr. Angela Mayeux and Dr. William Cenac for medical malpractice. Specifically, she alleged that Dr. Mayeux negligently performed her left hip replacement surgery, which caused her left leg to be slightly longer than her right, and that Dr. Mayeux failed to treat a post-surgical infection. She also claimed that Dr. Cenac was negligent in his failure to diagnose and treat this same infection. Ultimately, Dr. Chad Millet removed her hip prosthesis, treated the area, and inserted a new prosthesis.

The trial court found that Ms. Braud’s malpractice claims against both physicians had prescribed and, therefore, dismissed them. She appeals.

PRESCRIPTION Applicable to Medical Malpractice Claims

Louisiana Revised Statute 9:5628 provides, in pertinent part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed ivithin one year from the date of such discovery, in all events such claims shall be filed at the latest ivithin a period of three years from the date of the alleged act, omission, or neglect.

(Emphasis added.)

| ^Prescription for Leg Length Discrepancy

Dr. Mayeux performed hip arthroplasty surgery on Ms. Braud’s left hip on July 21, 1997. After the surgery, her left leg was longer than her right leg. On January 25, 2002, Ms. Braud filed a complaint with the medical review board against Dr. Mayeux, claiming that the difference in the length of her legs resulted from Dr. Mayeux’s improper performance of her surgery. She asserted that she did not discover for some time the reason for her length inequality, giving rise to malpractice, or her actual long-term prognosis because she trusted Dr. Mayeux, who told her that the leg length discrepancy would alleviate itself over time. She avers that she relied on these misrepresentations “until well after January 25, 1999;” therefore, she did not discover that she may have a cause of action against Dr. Mayeux until later than January 25,1999.

While the alleged discovery date is critical in determining when La.R.S. 9:5628’s one-year prescriptive period begins to run, it is irrelevant in determining whether the three-year prescriptive period bars Ms. Braud’s claim, because we must employ an objective measure of whether she filed suit within three years from the date of surgery, constituting the alleged malpractice.

Dr. Mayeux performed Ms. Braud’s hip replacement surgery on July 21, 1997. Ms. Braud filed her claim against Dr. Mayeux on January 25, 2002, over three years after the surgery. Thus, her claim is prescribed on its face. This shifts the burden to Ms. Braud to show that it is not prescribed.

The jurisprudential doctrine of contra non valentem agere nulla currit praescriptio recognizes that “in some circumstances, equity and justice require that the prescription ‘be suspended because the plaintiff was effectually prevented from enforcing his rights for reasons external to his own will.’ “ Prescription will not run against a person who is unable to act, which means unable to file suit. The contra non valentem doctrine contemplates four different scenarios in which a person is tunable to file suit, only two of which are relevant in the instant case. One scenario, often referred to as the “discovery rule,” suspends prescription where a plaintiff neither knew she had a cause of action nor could have learned of it through reasonable diligence.

Louisiana Revised Statute 9:5628 incorporates the jurisprudential discovery rule, allowing a plaintiff to file suit one year from the date she discovers, or should have discovered, that she had a cause of action, regardless of the date of the wrongful conduct giving rise to such cause of action. However, the statute provides an outside prescriptive period of three years. While jurisprudence holds that the three-year period is a prescriptive, rather than peremptive period, it places an overall time limit on the discovery rule. In other words, if suspension is based on the discovery rule type of contra non valentem, the three year period cannot be suspended or interrupted. Accordingly, it cannot save Ms. Braud’s claim from prescription in the instant case.

The other relevant scenario that contra non valentem contemplates is when the defendant does something to conceal the wrongful conduct and, in effect, prevents the plaintiff from availing herself of her cause of action. The supreme court has not yet decided whether a plaintiff may invoke this category to suspend the running of the three-year prescriptive period in La.R.S. 9:5628; however, it has strongly implied that if the defendant’s conduct rises to the level of fraudulent concealment, misrepresentations, or ill practices, the three-year prescriptive period can be suspended. We agree with this interpretation of La.R.S. 9:5628 and, therefore, proceed to evaluate Dr. May-eux’s conduct under this standard.

Ms. Braud alleges that Dr. Mayeux repeatedly assured her that her leg length discrepancy would alleviate itself over time. Dr. Mayeux admits telling Ms. Braud that once her abductor muscles grew stronger, she would not feel so unlev-el. This, 14alone, does not prove any intentional misconduct or concealment on Dr. Mayeux’s part. However, Dr. Mayeux admitted that she knew Ms. Braud’s leg length inequality could have been the result of the length of the prosthesis she used in the surgery. Specifically, she said:

Q. Tell me again, please — you mentioned a couple of reasons that a surgical patient could end up with a leg length inequality. Could you say those again, please?
A. It could be from the length of the prosthesis. It can also be from degenerative scoliosis in the back, causing the pelvis to be unlevel.
Q. Is there ... something ... that could have happened during the surgery, caused by the surgeon, that could cause there to be a leg length inequality?
A. We had just discussed that. Yes, sir. The length of the prosthesis.

When a physician breaches her duty to disclose information to a patient, it can rise to the level of fraudulent concealment. However, when a physician breaches that duty because she has negligently misdiagnosed the patient’s condition, the physician’s conduct does not rise to the requisite level because “[a] doctor who negligently misdiagnosis a patient’s condition is, at least at the time of the diagnosis, as ignorant of his negligence as is the potential plaintiff. Obviously, a defendant cannot be said to have concealed facts of which he had no knowledge.”

In the instant case, Dr. Mayeux was not ignorant of the possible cause of the inequality. On the contrary, the evidence reveals that she knew it could be because she failed to properly measure the prosthesis she inserted, yet, she did not disclose this information to Ms. Braud. Furthermore, instead of determining for sure the true cause or disclosing to Ms. Braud all of the possible causes, she affirmatively and conclusively stated to Ms. Braud that her weak muscles were the problem. In effect, she concealed from Ms. Braud the information that would have alerted her to a possible cause of action.

Dr. Mayeux’s failure to make a complete disclosure to her patient prolonged this patient’s agony and recovery, while potentially insuring that she would be Isforeclosed, due to prescription, from bringing a cause of action for malpractice. Nevertheless, without qualification, our supreme court has found that a physician’s reassurances to a patient that her condition will alleviate itself over time does not automatically rise to the level necessary to invoke the relevant category of contra non valentem; the supreme court has determined that it is necessary for a plaintiff to prove ill motive or intentional concealment on the physician’s part. Ms. Braud has not presented us with this evidence. Thus, we are constrained from finding that she proved concealment and ill practices, on Dr. Mayeux’s part, sufficient to suspend La.R.S. 9:5628’s three-year prescriptive period.

Moreover, even if we were to find that Dr. Mayeux’s conduct suspended prescription, it would only suspend it until their relationship terminated. She last saw Dr. Mayeux on December 3, 1998. Therefore, at the very latest, Ms. Braud’s claim prescribed on December 3, 2001. She did not file her claim until January 25, 2002. Accordingly, we must find that her claim, concerning her leg length inequality, is prescribed under La.R.S. 9:5628’s three-year period, regardless of Dr. Mayeux’s misrepresentations.

PRESCRIPTION FOR DIAGNOSIS AND TREATMENT of Infection

Claim against Dr. Mayeux

Ms. Braud developed an infection at the surgical site soon after the surgery. Dr. Mayeux diagnosed the infection and treated her with antibiotics for several weeks, after which she thought the infection had resolved. In fact, she continued to treat her until December 3, 1998. Subsequently, Drs. William Cenac, Victoria Silas, Chad Millet, and Brobson Lutz, as well as Ms. Braud’s general physician, Dr. Milton Jolivette, treated her. In 2001, Dr. Millet removed the hip prosthesis from Dr. Mayeux’s surgery, treated Ms. Braud’s infection, and inserted another prosthesis. Ms. Braud argues that she did not discover her potential cause of action against Dr. Mayeux for failure to diagnose and treat the infection until Dr. Millet diagnosed the infection in April 2001. Again, the date she discovered her cause of action is | ^irrelevant in determining whether La. R.S. 9:5628’s three-year prescriptive period bars her claim. Ms. Braud has not alleged any intentional misconduct or concealment on Dr. Mayeux’s part concerning the infection which would interrupt the three-year prescriptive period. It is unclear whether she developed the infection immediately or a few weeks after her surgery. However, her surgery date was July 21, 1997. She filed her claim on January 25, 2002, over four years later. Accordingly, her claim against Dr. May-eux, concerning her infection, is prescribed.

Claim against Dr. Cenac

Ms. Braud first sought treatment from Dr. Cenac on June 8, 1999. She saw him approximately a dozen times but was not satisfied with her progress. Thus, she left his care on August 17, 2000. She filed the instant claim against him on January 25, 2002, alleging that he failed to diagnose and treat the infection that Dr. Millet ultimately treated. Thus, the three year prescriptive period does not bar her claim against Dr. Cenac. Nonetheless, she filed her claim more than one year after Dr. Cenac’s alleged negligent act.

Louisiana Revised Statute 9:5628’s one-year prescriptive period “commences running on the date the injured party discovers or should have discovered the facts upon which his cause of action is based.” In other words, constructive knowledge is sufficient to trigger the running of prescription, and the plaintiff is “deemed to know that which he could have learned through reasonable diligence.” The heart of the inquiry is the reasonableness of the plaintiffs action or inaction. This inquiry requires consideration of the her education, intelligence, and the gravity of her condition, as well as the defendant’s conduct. Reasonability is a factual determination which an appellate court cannot disturb, absent a finding of manifest error.

[7Pr. Cenac testified, and his records corroborate, that he suspected an infection as early as January 13, 2000. His dictation from that visit states:

She may indeed have a low grade septic hip. She does not wish to proceed with further workup at this time. I would request that she follow up with Dr. Jolivet [sic] for her generalized de-conditioning.

While Ms. Braud testified that she did not recall Dr. Cenac ever discussing with her the possibility of an infection, his testimony and records evidence that he did. Dr. Cenac’s dictation from Ms. Braud’s February 17, 2000 visit states that his plan for her is to “recommend a thorough evaluation by Dr. Jolivette [her general physician] for any untoward infective activity.” Dr. Cenac testified that he discussed with her the possibility of an infection but when he informed her that further surgery would probably be necessary to treat it, “she would have nothing to do with any further surgery.”

Ms. Braud’s last visit with Dr. Cenac was on August 17, 2000. On August 30, 2000, she saw Dr. Silas. Her initial evaluation states:

[S]tatus post left total hip replacement with continued pain. She also has pain in her back and her knee, and it’s difficult to tell how much of this pain is due to the hip itself or due to degenerative changes in those other areas. My primary concern at this point would be a[sic] indolent infection of the hip prosthesis.
Plan: ... If the joint is infected, it would most likely require a revision of the components. The other possibility would be suppressive antibiotics, but that might lead to resistance and would ultimately not clear the infection.

The trial court found that Ms. Braud had knowledge or constructive knowledge of Dr. Cenac’s alleged negligence in failing to diagnose and treat the condition in the latter part of 1999 or, at the latest, when Dr. Silas saw her in August 2000. Ms. Braud is “deemed to know that which [s]he could have learned through reasonable diligence.” If Ms. Braud had agreed to proceed with a further work-up in order to confirm the infection, as Dr. Cenac recommended, she would have learned of her potential cause of action. Thus, we cannot say that the trial court’s conclusion is manifestly erroneous.

| ^Accordingly, we sustain its grant of Dr. Cenac’s exception of prescription.

CONCLUSION

We find that Ms. Braud’s claims against Dr. Mayeux, as well as against Dr. Cenac, are prescribed and affirm the trial court’s judgments granting and dismissal of their exceptions of prescription. We cast the costs of this appeal on the Plaintiff.

AFFIRMED.

COOKS, J., concurs and assigns reasons.

AMY, J., concurs in the result.

h COOKS, J.,

concurs.

Without evidence of fraudulent concealment, the three years peremptive period bars plaintiffs claims against Dr. Mayeux. I am without power to change the law even if I deem it unfair in this instance, particularly considering that many patients who are victims of medical malpractice, through no fault of their own, may not discover the wrongful conduct until long after the law closes the door on their claims.

      . La.R.S. 9:5628; In re Medical Review Panel for Claim of Moses, 00-2643 (La.5/25/01), 788 So.2d 1173.

      . Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 509 n. 10.

      . Touchet v. Baker Hughes, Inc., 98-749, p. 5 (La.App. 3 Cir. 2/3/99), 737 So.2d 821, 824 (quoting Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206)).

      . Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960.

      . Touchet, 737 So.2d 821.

      . Moses, 788 So.2d 1173.

      . Campo, 828 So.2d 502.

      . Id.

      . Moses, 788 So.2d 1173.

      . Id.

      . Whitnell v. Menville, 540 So.2d 304, 308 (La.1989).

      . See e.g., Gover v. Bridges, 497 So.2d 1364 (La.1986); Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960.

      . See Id.

      . Moses, 788 So.2d 1173.

      . Griffin v. Kinberger, 507 So.2d 821, 823 (La.1987) (citing Lott v. Haley, 370 So.2d 521 (La.1979)).

      . Touchet, 737 So.2d at 825(quoting LaPlaque Corp. v. Chevron U.S.A. Inc., 93-1597 (La.App. 4 Cir. 5/26/94), 638 So.2d 354, writ denied, 94-2125 (La. 11/11/94), 644 So.2d 395).

      . Campo, 828 So.2d 502.

      . Touchet, 737 So.2d 821.

        . Id. at 825(citing LaPlaque, 638 So.2d 354).