text:
    STATE of Louisiana v. Elton CROCHET, Jr.
    No. 2005-K-0123.
    Supreme Court of Louisiana.
    June 23, 2006.
    Charles C. Foti, Jr., Attorney General, Anthony G. Falterman, District Attorney, Donald D. Candell, Jennifer B. Gautreau, Assistant District Attorneys, for Applicant.

      Louisiana Appellate Project, Frank Sloan, for Respondent.
   PER CURIAM.

h Following revelation by M.C., defendant’s biological daughter, that her father had sexually abused her several years before by pulling up her shirt, pulling down her pants, touching- her vagina and rubbing his exposed penis over her, the state charged defendant by bill of information filed in March 2000, with one count of molestation of a juvenile in violation of La. R.S. 14:81.2. Less than a year later, C.C., defendant’s biological son by another wife, revealed to the authorities in Assumption Parish that defendant had sexually abused him on several occasions by touching his penis and had, on one occasion, after the boy finished a bath, “put his penis in my butt.” The state thereafter secured from a grand jury convened in December 2000, an indictment charging defendant with one count of aggravated rape, La. R.S. 14:42(A)(4), and a separate indictment charging him with five counts of aggravated incest in violation of La. R.S. 14:78.1.

1 ¡..The state subsequently filed notices in all three cases that it would introduce in each of the pending prosecutions evidence of the defendant’s other crimes charged against him involving M.C. and C.C., and would, in addition, introduce evidence that defendant had sexually abused two stepdaughters over the course of 10 years and two marriages by touching the girls inappropriately, rubbing himself on them, and, on one occasion, using the child’s hand to masturbate. After conducting a hearing on the state’s motions, the trial court ruled all of the evidence admissible and subsequently set all three cases for trial.

On the morning of trial, the state amended the grand jury indictment alleging the five counts of aggravated incest to clarify that it had charged defendant under La. R.S. 14:78.1(B)(2), which prohibits any “lewd fondling or touching” of the offender’s child “with the intent to arose or to satisfy the sexual desires of either the child or the offender, or both.” The state also moved “as a matter of housekeeping” to consolidate all three of the prosecutions for trial. Although defense counsel acknowledged that all pretrial proceedings, most importantly the hearing on the state’s notices of its intent to introduce other crimes evidence, had been conducted simultaneously in all three cases, he opposed the state’s motion on grounds that no provision in the Code of Criminal Procedure authorized the state to consolidate the cases over a defendant’s objection and that the consolidation would be “highly prejudicial” to his client. The trial court overruled the objections and allowed the state to proceed in all three cases.

In the ensuing trial, a 12-person jury found defendant guilty as charged of aggravated rape of C.C:, guilty as charged on two of the five counts of aggravated incest involving C.C., and guilty of indecent behavior with a juvenile on the count charging molestation of M.C. The trial court subsequently sentenced defendant to |slife imprisonment at hard labor without benefit of parole, probation or suspension of sentence for aggravated rape, two concurrent terms of 15 years imprisonment at hard labor for aggravated incest, and to five years imprisonment at hard labor for indecent behavior with a juvenile. The trial court ordered that the sentences for aggravated incest and indecent behavior with a juvenile would run concurrently, but consecutively to the life imprisonment term imposed on the aggravated rape conviction.

On appeal, the First Circuit reversed defendant’s convictions and sentences on-grounds that joint trial of three charges involving sexual abuse by defendant towards his children, and evidence1 óf his similar misconduct regarding two of his stepchildren, “presented many opportunities for the jury to infer criminal disposition and resulted in unfair prejudice to defendant.... Such a scenario created a danger of making the jury hostile and illustrates why consolidation is at the discretion of the defendant and not the State.” State v. Crochet, 04-0628, p. 7 (La.App. 1st Cir.12/17/04), 897 So.2d 731, 736 (McDonald, J., dissenting). Dissenting, Judge McDonald argued that the consolidation constituted harmless error because the record gave no indication that “the jury was confused or that defendant was unfairly prejudiced by the improper consolidation of these charges.” Crochet, 04-0628 at 1, 897 So.2d 731 (McDonald, J., dissenting). We granted the state’s application to review the correctness of the decision below and now reverse the result reached by the majority on the First Circuit panel.

Consolidation of two or more criminal cases is governed by La.C.Cr.P. art. 706, which provides that “[ujpon motion of a defendant, or of all defendants if there are more than one, the court may order two or more indictments consolidated for trial if the offenses and the' defendants, if there are more than one, could have |4been joined in a single indictment.” The provision has remained unchanged since the legislature added it to the Code of Criminal Procedure in the comprehensive 1966 revision, see 1966 La. Acts 310, although the legislature has since then considerably expanded the rules governing joinder of two or more criminal offenses in a single proceedings. The statute permits a defendant to intrude on the otherwise plenary discretion of the state to determine “whom, when, and how” to prosecute, La. C.Cr.P. art. 61, by moving the trial court to consolidate crimes the state has chosen to prosecute in separate eases. However, given Louisiana’s |5present broad joinder rules, La.C.Cr.P. art. 706 does not confer on a defendant a statutory right to hold the state to its initial charging decision that he alone may waive by moving for consolidation of the charges. Assuming that the crimes are otherwise properly joined in a single prosecution as a matter of La.C.Cr.P. art. 493 or 493.2, the state may effect consolidation without the approval of the defendant or the court by filing a superceding indictment. See La. C.Cr.P. art. 706, Offl Cmt.1966 (“[T]he state can accomplish the same result by dismissing all charges and recharging in a consolidated form.”). The state may also achieve the same end by exercising its authority under La.C.Cr.P. art. 487 to make substantive amendments to an indictment at any time before the beginning of trial, subject to the defendant’s right under La.C.Cr.P. art. 489 to move for a continuance if the amendment has led to his prejudice. See State v. Lovett, 359 So.2d 163, 166 (La.1978) (“[T]he original indictment by the grand jury charging defendant with four counts of conspiracy was amended by the state prior to trial to add thereto the three counts of the completed offense previously charged in the second grand jury indictment. The amendment was one of substance which the state was empowered to make prior to the commencement of trial.”); State v. Bluain, 315 So.2d 749, 752 (1975) (amendment adding count to indictment); State v. Mills, 04-0489 (La.App. 5th Cir.3/29/05), 900 So.2d 953, 956-56 (amendment adding several counts to indictment); see also State v. Lathers, 00-3195 (La.11/22/00), 774 So.2d 984, 985 (writ grant note) (“The trial court did not abuse its discretion to allow the amendment to the indictment.”).

In the present case, the state’s “housekeeping” immediately before trial did not involve formal consolidation of the cases through the filing of a superceding indictment or amendment of the original indictments. However, for purposes of | apéllate review, whether the claim involves misjoinder of offenses, prejudicial joinder, or improper consolidation, the defendant must show prejudice to establish that trial of two or more crimes in a single proceeding “affect[ed] his substantial rights.” La.C.Cr.P. art. 920; see State v. Strickland, 94-0025, p. 13 (La.11/1/96), 683 So.2d 218, 226 (although prior jurisprudence of the Court distinguished between misjoinder and prejudicial joinder to determine whether defendant’s proper remedy at the trial court level was a motion to quash or motion to sever, at the appellate level “the distinction becomes blurred since the basis for the prohibition against both misjoinder and prejudicial joinder is, essentially, prejudice to the defendant.... Thus, errors of both types may be reviewed to determine whether the substantial rights of the defendant were prejudiced.”) (citing State v. Mallett, 357 So.2d 1105, 1109 (La.1978)) (“The prohibition against misjoinder of offenses and improper consolidation of offenses for trial is grounded on the possible prejudice arising from a single trial on two or more offenses.”).

We therefore agree with the court of appeal’s observation in the present case that “[t]he same considerations used by the trial court in determining whether prejudice may result from joinder can also be used to determine whether prejudice results from consolidation.” Crochet, 04-0628 at 6, 897 So.2d at 735. Those considerations include “whether the jury would be confused by the various charges; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.” State v. Washington, 386 So.2d 1368, 1371 (La.1980).

17However, consideration of those factors leads to the conclusion in the present case, as Judge McDonald found in his dissent, that the defendant was not prejudiced by the consolidation. The facts of each incident were simple and easily distinguishable from each other. In their opening statements, the state and the defense referred to the charges as separate offenses and stressed to the jurors the importance of considering the charges independently. The evidence against defendant, which consisted of the victims’ testimony, was not complex and was presented in an orderly fashion, allowing the jury to segregate the charges and the evidence. Nor was the defense stymied by the consolidation of the offenses. In fact, defense counsel indicated before trial that he could conclude his defense in one day. Although the state consolidated the cases immediately before jury selection began, defense counsel did not move for a continuance on grounds that he was unprepared to defend one or more of the cases, and his subsequent representation of defendant at trial indicated that he was fully prepared to answer the allegations in all three cases.

Moreover, consolidation of the cases did not expose the jury to evidence that was admissible as to one or more of the counts but inadmissible as to other counts. Evidence of defendant’s sexual abuse of his biological and stepchildren was, as the trial court determined, admissible to show his “lustful disposition toward children.” La.C.E. art. 412.2 (2001 La. Acts 1130). Wholly apart from the provisions of La.C.E. 412.2, cf. State v. Morgan, 02-3196, p. 2, n. 2 (La.1/24/04), 863 So.2d 520, 521 (retroactive application of art. 412.2 “in a case in which the defendant committed the charged sexual offense before the effective date of the statute remains an open question”), because defendant’s crimes against his biological son C.C. involved the same victim, the evidence was admissible in its | sentirety in the rape and aggravated incest prosecutions to show his lustful disposition towards his son. See State v. Kennedy, 00-1554, pp. 6-7 (La.4/3/01), 803 So.2d 916, 921 (discussing rule of State v. Acliese, 403 So.2d 665 (La.1981) that “evidence of prior sex crimes against the prosecuting victim is admissible under an exception to the general rule excluding evidence of other crimes similar to the charged offense”). More generally, evidence that defendant sexually abused in one way or another four children in the course of two marriages demonstrated his plan or scheme to exploit the children in his home for his own sexual gratification and, with respect to the charges of aggravated incest and molestation of a juvenile, that he performed the acts, both charged and uncharged, with the intent to arouse or gratify his sexual desire. See State v. Jack son, 625 So.2d 146, 150-51 (La.1993). The trial court gave careful attention to limiting the prejudice to defendant by charging the jury as to the limited use of the other crimes evidence involving the stepdaughters after each witness testified and repeated those instructions in its general charge to the jury at the close of the case. While the court did not, at the request of defense counsel, expressly instruct jurors that they could not consider the elements of one offense in determining their verdict as to any of the other crimes charged, the court discussed the elements of the charged offenses and their responsive verdicts in the context of addressing the separate verdict forms the court would provide jurors on each count to record their verdicts.

Finally, the jury’s verdicts reveal its ability to compartmentalize the offenses, as defendant was found guilty of only two of the five counts of aggravated incest. The jury also rejected the charge of molestation with regard to defendant’s daughter and returned the lesser verdict of indecent behavior with a juvenile. Under these circumstances, consolidation of the offenses with which |9defendant was charged does not appear to have unfairly prejudiced the defendant by creating a substantial risk of luring jurors into deciding each case on the basis of the defendant’s criminal disposition as opposed to evidence specific to each crime charged. Cf. Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”) (citation omitted).

| Accordingly, we reverse the decision below, reinstate defendant’s convictions and sentences, and remand this case to the court of appeal for consideration of the defendant’s remaining assignment of error regarding the responsive verdicts provided the jury by the trial court for the offense of aggravated rape.

JUDGMENT OF THE COURT OF APPEAL REVERSED; CASE REMANDED TO THE COURT OF APPEAL.

      . Retired Judge Philip C. Ciaccio assigned as justice pro tempore sitting for Associate Justice Catherine D. Kimball.

      . At one time in Louisiana, the state was required to join in a single indictment crimes committed in a single act or continuous transactions. See 1928 C.Cr.P. art. 218 ("When two or more crimes result from a single act, or from one continuous unlawful transaction, only one indictment will lie...The legislature repealed art. 218, see 1932 La. Acts 153, following this Court’s decision in State v. Roberts, 170 La. 727, 129 So. 144 (1930), which barred a successive prosecution for the second of two murders committed during a single armed robbery because the state had not joined the two crimes in one indictment. Thereafter, joinder was controlled and severely restricted by 1928 La.C.Cr.P. art. 217, which stated generally that "[ejxcept as otherwise provided under this title, no indictment shall charge more than one crime, but the same crime may be charged in different ways in several counts.” Following the repeal of art. 218, this Court took for granted that the legislature had virtually eliminated joinder of two or more crimes in a single proceeding even if they occurred during the same transaction. See State v. Cannon, 185 La. 395, 169 So. 446, 447 (1936) ("[T]he killing of each [victim at the same time and place] was a separate homicide, a separate crime, and since the repeal of article 218 ... it was necessary that two separate indictments be returned if the state intended to prosecute this defendant for each homicide.”); see also State v. Carter, 206 La. 181, 19 So.2d 41, 44 (1944); Ralph Slovenko, The Accusation in Louisiana Criminal Law, 32 Tul.L.Rev. 47, 76-81 (1957). The legislature then incorporated art. 217 unchanged in La.C.Cr.P. art. 493 as part of the 1966 revision of the Code of Criminal Procedure. As a general matter, joinder (and consolidation under La.C.Cr.P. art. 706) was thereby limited to the crimes of theft and receiving stolen things. See La.C.Cr.P. art. 481; 482.
      However, in 1975 La. Acts 528, the legislature amended La.C.Cr.P. art. 493 to provide that "[t]wo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.” In 1997 La. Acts 559, the legislature then added La.C.Cr.P. art. 493.2 to govern joinder of two or more offenses ordinarily triable by different modes of trial (i.e., 12-person or six-person juries). As presently constituted, and in a departure from past practice, Louisiana law facilitates the joinder or consolidation of cases for trial.

      . However, because the state chose to consolidate the cases as opposed to joining them in a single indictment, an error occurred with respect to the jury's guilty verdicts on two counts of aggravated incest and one count of indecent behavior with a juvenile. The court tried this case as if the state had filed a superceding indictment or amended the existing indictments to join all of the charges against the defendant under the provisions of La.C.Cr.P. art. 493.2, which permits joinder of offenses ordinarily triable by different modes of trial (and hence not subject to the joinder as a matter of La.C.Cr.P. art. 493), i.e. offenses necessarily punishable at hard labor and crimes punishable with or without hard labor, in a single proceeding before a jury of 12 persons, 10 of whom must concur to render a verdict. Thus, following consolidation of the three cases, the state and defense chose a 12-person juiy and the court instructed jurors at the close of the evidence that at least 10 members of the panel had to concur to render a verdict on each count charged against the defendant.
      However, if tried alone, the charge of aggravated rape, an offense necessarily punishable at hard labor, required a 12-member non-unanimous jury, but the offenses of molestation of a juvenile and aggravated incest, both punishable with or without hard labor, required unanimous six-person juries. La. Const, art. X, § 17; La.C.Cr.P. art. 782. Consolidation of the cases, as opposed to joinder of them in a single indictment, did not change these required modes of trial. See State v. Hornung, 620 So.2d 816 (La.1993) (consolidation of several misdemeanors, as opposed to joinder of the offenses under La.C.Cr.P. art. 493.1, did not deprive defendant of the right to a jury trial based on cumulation of penalties).
      Under this Court’s prior jurisprudence, and without regard to the question of whether defendant was actually prejudiced by trial before a juiy twice the size of what the law required, the error in juiy size with respect to the charges of aggravated incest and molestation of a juvenile would have required reversal of defendant’s convictions and sentences on those counts. State v. Nedds, 364 So.2d 588, 589 (La.1978) ("As both the Constitution and statute require a six-person juiy to try a case which is punishable with or without hard labor, trying the defendant with a twelve-person jury was fatal error.”); see also State v. Marcantel, 388 So.2d 383 (La.1980) (same); State v. Smith, 367 So.2d 857 (La.1979) (same).

        However, this Court no longer considers this error a non-waivable jurisdictional defect in the proceedings when the jury has returned a unanimous verdict. See State v. Jones, 05-0226 (La.2/22/06), 922 So.2d 508. Accordingly, in the present case, in the absence of a timely objection or a showing of prejudice, the error does not require reversal of defendant’s convictions for aggravated incest and indecent behavior with a juvenile (on the count charging molestation of a juvenile) because the record indicates that the jury returned unanimous verdicts as to those offenses.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Fred E. SALLEY.
    No. 2006-B-0726.
    Supreme Court of Louisiana.
    June 23, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent, Fred E. Salley, alleging several violations of the Rules of Professional Conduct, including Rule 4.4 (respect for the rights of third persons). The allegations arose from respondent’s representation of a client in connection with the issuance of an arrest warrant by a justice of the peace. Respondent denied any misconduct, and the matter then proceeded to a formal hearing before the hearing committee. In a split decision, two members of the committee recommended that respondent be suspended from the practice of law for three months, fully deferred, while the third committee member recommended that the formal charges against respondent be dismissed. Following its review, the disciplinary board publicly reprimanded respondent.

Respondent sought review by this court of the public reprimand. We ordered the parties to submit written briefs addressing the issue of whether the record filed herein supports the board’s report. Both respondent and the ODC submitted briefs in response to the order.

Having reviewed the record and the briefs of the parties, we find the disciplinary board reached the correct result in this matter. Accordingly, we will not disturb the disposition of the disciplinary board.


text:
    Dominick MARINO, IV v. MARTIN’S OIL COUNTRY TUBULAR, INC.
    No. 2006-CC-0898.
    Supreme Court of Louisiana.
    June 23, 2006.
   PER CURIAM.

The undisputed facts in this tort case show that plaintiffs injury was not intentional, and therefore, plaintiffs exclusive remedy is workers’ compensation under La. R.S. 12:1032. See, Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208, holding that “ ‘[substantially certain to follow1 requires more than a reasonable probability that an injury will occur and ‘certain’ has been defined to mean ‘inevitable’ or ‘incapable of failing.’ ” Jasmin v. HNV Cent. Riverfront Corp., [94-1497 (La.App. 4 Cir.8/30/94), 642 So.2d] supra [311] at 312. “[A]n employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the ‘substantial certainty requirement.” Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La.App. 4 Cir.1993), unit denied, 629 So.2d 347 (La.1993). “Further, mere knowledge and appreciate of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.” Id. (Citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-808 (La.App. 4 Cir.1991)). The ruling of the trial court is reversed, defendant’s motion for summary judgment is granted, and plaintiffs petition is dismissed with prejudice at his cost.


text:
    W.R.M. v. H.C.V. and M.J.V.
    No. 2006-C-0702.
    Supreme Court of Louisiana.
    June 23, 2006.
   And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit — “It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Triplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith .to this Court, at the City of New Orleans, the record in triplicate of the above entitled case.


text:
    Michael D. HAMILTON v. ROYAL INTERNATIONAL PETROLEUM CORPORATION and Elmer B. Litchfield, Sheriff & Tax Collector of the City of Baton Rouge.
    No. 2005-C-0846.
    Supreme Court of Louisiana.
    June 3, 2005.
   In re Royal International Petroleum Corporation et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court' Div. I, No. 465,644; to the Court of Appeal, First Circuit, No. 2003 CA 2660.

Granted.


author: JOAN BERNARD ARMSTRONG, Chief Judge. TOBIAS, J., JOAN BERNARD ARMSTRONG, Chief Judge. TOBIAS, J.,

text:
    Ernestine LEE v. COMMODORE HOLDINGS, LTD.
    No. 2000-CA-1551.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 29, 2005.
    Opinion Granting Rehearing March 22, 2006.

      William R. Mustian, III, Stanga & Mus-tian, P.L.C., Metairie, LA, for Plaintiff/Appellant.
    Brian D. Wallace, W. Spencer Murphy, Evans Martin McLeod, Phelps Dunbar LLP, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR. and Judge DAVID S. GORBATY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

LThe plaintiff-appellant, Ernestine Lee, originally appealed a judgment in favor of the defendant-appellee, Commodore Holdings, Ltd. (hereinafter “Commodore”), granting Commodore’s exception of improper venue and dismissing plaintiff-appellant’s petition without prejudice. The appeal was stayed pursuant to Commodore’s bankruptcy proceedings.

This matter is now before us pursuant to an order of this Court dated May 4, 2005, noting that the automatic bankruptcy stay of these proceedings has been lifted by operation of law in consequence of the confirmation of Commodore’s bankruptcy plan. The order further directed the parties to brief the question of whether the appeal of this matter has been abandoned pursuant to La. C.C.P. art. 561 and/or Rule 20 of the Fourth Circuit Court of Appeal.

Ms. Lee previously filed a brief herein on August 7, 2000 and a reply brief on September 12, 2000. On April 2, 2001, Commodore filed a “Notice of Automatic Stay” in these proceedings. On April 12, 2001, this Court then stayed this case, “until the resolution of the action in the bankruptcy court.” This Court inadvertently failed to send out a notice of the stay in accordance with Rule 20 of this Court.

IgThe bankruptcy stay was lifted on March 15, 2002. No further action was taken in this ease until just a few days shy of three years later when, on March 9, 2005, this Court ordered the parties to show cause why the case should not be dismissed as abandoned pursuant to La. C.C.P. art. 561 or, alternatively, why this Court’s stay order of April 12, 2001 should not be vacated and recalled. On March 23, 2005, Ms. Lee responded to this Court’s show cause order.

La. C.C.P. art. 561 provides that an “action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years ...” La. C.C.P. art. 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three years without a step being taken by either party, and it is effective without court order. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La.5/15/01), 785 So.2d 779, 784.

It is uncontested that neither party took any action in this case from the time the bankruptcy court lifted the stay on March 15, 2002, until March 28, 2005 when Ms. Lee responded to this Court’s show cause order, a period of over three years. Therefore, if these are the only dates and factors to be considered, Ms. Lee’s appeal must be dismissed for three years non-prosecution. Accordingly, we must determine whether there are any other pertinent dates or factors that might warrant a finding of non-abandonment.

The Supreme Court in Clark, 00-3010, p. 9-11, 785 So.2d at 786-787, explained the general purpose and policy behind La. C.C.P. art. 561:

[Abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned.
Policy Considerations Underlying Abandonment
| ¡¡Abandonment is a device that the Legislature adopted “ ‘to put an end to the then prevailing practice of filing suit to interrupt prescription, and then letting the suit hang perpetually over the head of the defendant unless he himself should force the issue.’ ” Sanders v. Luke, 92 So.2d 156 (La.App. 1st Cir. 1957)....
Abandonment functions to relieve courts and parties of lingering claims by giving effect to the logical inference that a legislatively designated extended period of litigation inactivity establishes the intent to abandon such claims. When the parties take no steps in the prosecution or defense of their claims during that legislatively ordained period, “the logical inference is that the party intends to abandon the claim and the law gives effect to this inference.” Young v. Laborde, 576 So.2d 551, 552 (La.App. 4th Cir.1991). The presumption of abandonment that arises under Article 561 as a result of three years of litigation inactivity, however, is not conclusive. As noted, two jurisprudential, prescription based exceptions are recognized. Moreover, given that dismissal is the harshest of remedies, the general rule is that “any reasonable doubt [about abandonment] should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment.” Id.
Abandonment is not a punitive concept; rather, it a balancing concept. Abandonment balances two equally sound, competing policy considerations: “on the one hand, the desire to see every litigant have his day in court, and not to lose same by some technical carelessness or unavoidable delay; on the other hand, the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription.” Sanders, 92 So.2d at 159. The latter policy consideration parallels those served by prescriptive statutes-promoting legal finality, barring stale claims, and preventing prejudice to defendants. Gary v. Camden Fire Insurance Co., 96-0055 (La.7/2/96), 676 So.2d 553. More precisely, the latter prescriptive purpose on which abandonment is based promotes “the legislative intent and judicial policy of finality, requiring that suits not be permitted to linger indefinitely, that the legal process be expedited where possible, and that abandoned cases be removed from crowded dockets.” 1 Judge Steven R. Plotkin, West Practice Group: Louisiana Civil Procedure 359 (2001). Given the balancing function | ¿served by abandonment, “Louisiana’s jurisprudence tends to be inconsistent; no bright lines exist.” Id. (emphasis supplied.) [Emphasis added throughout.]

Id., 00-3010, pp. 9-11, 785 So.2d at 786-787.

Subsequently, in Causey v. Caterpillar Machinery Corp., 02-0746, pp. 3 (La.App. 4 Cir. 6/26/02), 822 So.2d 188, 190, this Court described the guidelines for implementing La. C.C.P. art. 561 and the policies set forth above by the Supreme Court in Clark, including the three criteria necessary to prevent a case from being dismissed for abandonment:

La. C.C.P. art. 561 requires three things: (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court on the record of the suit, with the exception of formal discovery; and (3) that the step be taken within three years of the last step taken by either party. James v. Formosa Plastics Corp. of La., 2001-2056, p. 4 (La.4/3/02), 813 So.2d 335, 338. A party takes a step in the prosecution or defense of an action when “he takes formal action before the court intended to hasten the matter to judgment,” or takes a deposition with or without formal notice. Id.; Clark v. State Farm Mut. Auto Ins. Co., 00-3010, p. 6 (La.5/15/01), 785 So.2d 779, 784.

This Court then recognized two juris-prudentially created categories of instances in which a case may not be considered abandoned even in the absence of the above described three criteria normally required to prevent abandonment under La. C.C.P. art. 561:

However, there are two exceptions: (1) a plaintiff-oriented one, based on contra non valentum, that applies when the failure to prosecute is caused by circumstances beyond the plaintiffs control; and (2) a defense-oriented exception, based on acknowledgement, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as | ^abandoned. Clark, p. 7, 785 So.2d at 784-785.... [Emphasis added.]
The jurisprudence has uniformly held that La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Clark, p. 8, 785 So.2d at 779. La. C.C.P. art. 561 is not to be used to dismiss cases where a party has clearly demonstrated that it does not intend to abandon the action. Reed v. Finklestein, 2001-1015, p. 7 (La.App. 4 Cir. 1/16/02), 807 So.2d 1032,1035. This court generally has been reluctant to uphold dismissals where it appeared a plaintiff had not evidenced an intention to abandon a case. Naccari v. Namer, 2001-2410, p. 7 (La.App. 4 Cir. 2/6/02), 809 So.2d 1157, 1161.

Id., 02-0746, pp. 3-4, 822 So.2d at 191.

The bankruptcy stay would clearly fall within the contra non valentem exception. However, Ms. Lee does not argue that she took a step in the prosecution within three years of the lifting of the bankruptcy stay, effectively conceding that she cannot establish any of the three criteria required by La. C.C.P. art. 561 as set forth above in Causey. Ms. Lee argues that the bankruptcy court failed to notify her of the lifting of the stay. We will interpret this an argument on her part that she still comes under the plaintiff-oriented contra non valentem exception, i.e., we will treat this as an argument that her failure to take a step in the prosecution was due to circumstances beyond her control, and in doing so we are mindful of the jurisprudence giving the benefit of the doubt to the plaintiff.

However, plaintiff does not argue that the bankruptcy court failed to fulfill any mandatory notice requirements. Nor does the plaintiff offer an answer to the question of when, if ever, the case could be considered abandoned under her theory of the issue, i.e., if the plaintiff were entitled to wait until three years after receiving notice of the lifting of the stay from the bankruptcy court, a notice that the bankruptcy court would probably never send, the defendant might never be | fiable to have the case dismissed for abandonment no matter how many years elapsed. Such a result is clearly unacceptable and contrary to the legislative intent behind La. C.C.P. art. 561 as explained in Clark, supra. Accordingly, we find that it was incumbent upon Ms. Lee to inquire periodically concerning the status of the bankruptcy proceedings. This would require her to inquire just enough more often than once every three years as to allow her to take a timely step in the prosecution in the event she were to discover that the stay had been lifted. We find that such a requirement does not impose an unduly onerous burden on the plaintiff and we can conjure up no alternative that would be fair to the defendant. Therefore, we'find no merit in Ms. Lee’s contentions concerning lack of notice from the bankruptcy court.

Next we must consider whether the show cause order of this Court of March 9, 2002, just a few days short of three years after the lifting of the stay order, could constitute a step in the prosecution of the case under La. C.C.P. art. 561, i.e., does this action by this Court interrupt the abandonment period? La. C.C.P. art. 561 literally requires an action by “the parties.” In other words, a literal reading of La. C.C.P. art. 561 makes no provision for interruption of the three-year period for abandonment based on an action by a court. The argument in favor of such a literal interpretation is that an action by a court does nothing to demonstrate an interest by a party in pursuing the case, and the purpose of La. C.C.P. art. 561 is to require the parties to manifest some interest in the case. Thus, a literal reading of the language of Article 561 furthers the policy objective of the Article, whereas a broader reading that would include actions by a court would serve no superior policy objective, especially under the facts of this case where the object of the show cause order is the issue of abandonment. It would be incongruous to declare |7that the issuance by this Court of an order to show cause on the question of abandonment should ipso facto serve to defeat a claim of abandonment.

This Court’s March 9, 2005 show cause order, issued just prior to the expiration of three years from the lifting of the bankruptcy stay, gave the parties ten days in which to respond, a period which expired just beyond three years after the lifting of the bankruptcy stay. This raises the additional question of whether the order of this Court issued prior to the expiration of the period of abandonment had the effect of extending that period during the ten-day response time called for in this Court’s order. This would enable the plaintiff to argue that response to the show cause order, if timely, was a timely step in the prosecution. This Court finds no authority either directly or by analogy that states or implies that the show cause order of March 9, 2005 is either a step in the prosecution under La. C.C.P. art. 561 or that the ten-day response period set forth in the show cause order had the effect of extending the La. C.C.P. art. 561 three-year period until the expiration of the ten-day response time called for in the show cause order. Moreover, the plaintiff does not contend that she would have taken a step in the prosecution prior to the expiration of the three-year period were it not for the fact that she was lulled into believing that the show cause order gave her ten days in which to act, i.e., the plaintiff makes no claim of prejudice arising out of the ten-day period called for in the show cause order. Finally, we note that this Court’s show cause order of March 9, 2005 mandated a response within ten days from that date. Therefore, the plaintiffs response of March 23, 2005 was not timely and, for that additional reason, should not serve to interrupt the three-year abandonment period.

Is As this Court has found that the plaintiff has abandoned her claim under La. C.C.P. art. 561, we need not consider the effect of Rule 20 of the Fourth Circuit Court of Appeal.

For the foregoing reasons, the plaintiffs appeal is dismissed as abandoned pursuant to La. C.C.P. art. 561.

APPEAL DISMISSED.

TOBIAS, J., concurs and assigns reasons.

TOBIAS, J.,

concurring and assigning reasons.

hi respectfully concur.

Although I agree with the majority’s reasoning and conclusion that the appeal must be dismissed, I find that an explanation of why rule 20 of the local rules of this court does not rescue the plaintiff-appellant from the order of dismissal is required.

In - my view, La. C.C.P. art 561 supersedes rule 20 under the facts of this case. That is, -if a copy of a bankruptcy stay notice is filed in the court of appeal, the three-year article 561 period is reduced to one year if the clerk of court sends the rule 20 notice; if the clerk of court fails to send the one-year notice, then the case is abandoned if a party takes no step in the prosecution of the case within three years.

In the case at bar, no party took a step in the prosecution of this appeal within three years from the lifting of the stay by the bankruptcy court.

ON REHEARING GRANTED

JOAN BERNARD ARMSTRONG, Chief Judge.

liWe grant rehearing in order to consider the differences, if any, between the rules for abandonment under La. C.C. P. art 561 A(l) as opposed to the rules La. C.C.P. art. 561 C. La. C.C.P. 561 A(l), which applies to abandonment in the trial court, requires a “step” in the “prosecution” by one of the “parties” within three years. On the other hand, La. C.C.P. art. 561 C which applies to abandonment in the appellate courts, states that appeals are abandoned in accordance with the rules of the appellate court, in this case Court of Appeal — Fourth Circuit Rule 20 which states in pertinent part:

A. Except as provided hereafter when no activity occurs in an appeal for three years, the appeal shall be dismissed as abandoned, and notice thereof shall be sent to the appellant or the appellant’s attorney at the last address shown on the court’s records. [Emphasis added.]
B. If a stay order or notice thereof resulting from a bankruptcy ... is filed the Clerk of Court shall send a notice to the appellant that one year thereafter the appeal shall be dismissed as abandoned unless the appellant in the meantime files a motion showing why the appeal should not be dismissed. [Emphasis added.]

In the instant case it is undisputed that the notice to the appellant called for under Rule 20 B was never sent. Therefore, the one-year abandonment period | ^provided by Rule 20 B does not apply. As the one-year abandonment under Rule ,20 B cannot apply in the instant case for lack of notice, we must refer to Rule 20 A, a three-year rule. In other words, we read Rule 20 as providing a special one-year abandonment for bankruptcy situations when the notice called for in paragraph “B” is sent, but when that notice is not sent, the more general provisions of paragraph “A”, which sets forth a three-year rule, apply.

While Rule 20 A and La. C.C.P. art. 561 A(l) both set forth a three-year rule for abandonment, we find there to be material differences in the language of each prescribing what must occur within the three years in order to prevent abandonment. As the language differences are material, we find that Rule 20 A and La. C.C.P. art. 561 A(l) prescribe different requirements for what must occur prior to the expiration of the three-year period.

Thus, while the abandonment rule for the trial court under La. C.C.P. art. 561 A(l) speaks in terms of a “step” in the “prosecution” by one of the “parties,” Rule 20 A (which prescribes the rules for abandonment in this Court pursuant to La. C.C.P. art. 561 C) makes no mention of “parties,” “step” or “prosecution.” Rule 20 A speaks only in general terms of “activity” without any of the modifying terms, “parties,” “step” “or prosecution.” There is nothing in Rule 20 A to restrict the general term “activity” to “parties” or to “steps in the prosecution.” Thus, the term “activity” is broad enough to include an action by this Court in addition to actions by the parties.

“Activity” is a term not to be found in La. C.C.P. art. 561. Had the legislature intended that the three-year rule must be applied in the same manner in both the trial court and in the court of appeal, there would have been no reason to have enacted both La. C.C.P. art. 561 A(l) and 561C. Consistent with our | ^determination that the clear language of La. C.C.P. art. 561 C requires us to give effect to the rules of the courts of appeal for abandonment purposes as distinguished form the rules applicable to the trial court under La. C.C.P. art. 561 A(l), we find that had this Court intended to make La. C.C.P. art. 561 A(l) applicable to this Court, as would be our prerogative, it would have been easy enough to incorporate the language of 56 A(l) into our Rule 20 A. But this Court chose instead to adopt different language, speaking in general terms of “activity” instead of “parties,” “step” or “prosecution.”

As we noted in our original opinion, abandonment is not favored, it is not meant to dismiss actions on mere technicalities, and La. C.C.P. art. 561 A is to be liberally construed in favor of maintaining a plaintiffs suit. Thus, any action or step taken to move the case forward should be considered. Charpentier v. Goudeau, 95-2357 (La.App. 4 Cir. 3/14/96), 671 So.2d 981; Jefferson Indoor Shooting Center, Inc. v. New Orleans Sports, Inc., 95-1978, 95-1979 (La.App. 4 Cir. 3/14/96), 671 So.2d 976. The term “step” requires liberal construction. Dept. of Transp. and Development v. Waste Management, Inc., 626 So.2d 59 (La.App. 3 Cir.1993).

It stands to reason that Rule 20 A, made applicable by La. C.C.P. art. 561 C, must be equally liberally construed in -favor of maintaining a plaintiffs suit and that the term “activity” found in Rule 20 A should be construed just as liberally as is its analogue, “step,” found in La. C.C.P. art. 561 A(l).

In this case, this Court issued a show cause order on its own motion within three years. We find this sufficient to constitute “activity” under Rule 20 A. Accordingly, we find that this appeal has not been abandoned.

| ¿For the foregoing reasons, we vacate the original judgment of this Court, thereby reinstating the plaintiffs appeal. It is further ordered that the stay order of April 12, 2001 be vacated and recalled.

JUDGMENT VACATED; APPEAL REINSTATED; STAY ORDER RECALLED

TOBIAS, J., concurs in part, dissents in part, and assigns reasons.

TOBIAS, J.,

Concurring in Part, Dissenting in Part, and Assigning Reasons.

Li respectfully concur in part and dissent in part.

In adopting local rule 20, I doubt whether this court ever intended to make a distinction between the word “activity” found in rule 20A and the words, “step,” “prosecution,” or “parties” in La. C.C.P. art 561 A. Moreover, I believe that this court used the word “activity” as shorthand for the La. C.C.P. art. 561 A language as a result of the revision to article 561 shortening the period of time for abandonment from five years to three years. See also Comment (a) to the 1966 revisions of article 561. Such is reinforced by a careful reading of rule 20 B, which is actually unworkable as written.

Rule 20 B states:

If a stay order or notice thereof resulting from a bankruptcy, receivership, liquidation, or like proceeding is filed the Clerk of Court shall send a notice to the appellant that one year thereafter the appeal shall be dismissed as abandoned unless the appellant in the meantime files a motion showing why the appeal should not be dismissed. [Emphasis added.]

Rule 20 B leaves open the- following questions: When is the appellant required to file his motion? Can he file it immediately upon receipt of the notice from the clerk of court? Must the appellant wait closer to the end of the one-year period to file his motion?

Is>lt seems to me that the appellant has some burden to keep track of the existence of the stay in the bankruptcy proceeding, which the appellant in the case at bar did not, for he let the three-year period accrue without inquiry as to the status of the bankruptcy proceedings against the appel-lee.

Because our clerk of court did not follow rule 20 B, I am willing to rescue this appellant from the dismissal of his appeal because appeals are favored in the law. But I respectfully disagree with the majority’s expanded reading of the word “activity” in Rule 20 A, for I find that it is intended to place the burden on a party to keep track of the stay and its applicability to his, her, or its appeal.

      . Referred to in Clark, 00-3010, p. 10, 785 So.2d at 787, as "prescription based exceptions ...," consistent with references throughout the jurisprudence noting the prescriptive nature of the three-year period for abandonment.


author:
ROLAND L. BELSOME, Judge.
      CANNIZZARO, J.,

text:
    STATE of Louisiana v. Raymond MOLIERE.
    No. 2005-KA-0430.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 5, 2006.
    Rehearing Granted May 5, 2006.
    Order Granting Motion to Supplement Record May 5, 2006.
    Eddie J. Jordan, Jr., District Attorney, Yolanda J. King, Assistant District Attorney, New Orleans, Counsel for Plaintiff/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, Counsel for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO Jr., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

^STATEMENT OF CASE

On August 21, 2003 Raymond Moliere was indicted by the Orleans Parish Grand Jury on two charges: 1) the first degree murder of Brandon Davis, a violation of La. R.S. 14:30; and 2) the armed robbery of James Jones, a violation of La. R.S. 14:64. Moliere pled not guilty to both counts at his arraignment on August 28, 2003.

Trial of the State’s charges against Moliere occurred on October 12 and 13, 2004. On October 12, 2004, the State amended count one of the indictment to charge Moliere with the second degree murder of Brandon Davis, a violation of La. R.S. 14:30.1. Simultaneously, the State also amended count two of the indictment to charge Moliere with the attempted second degree murder of James Jones, a violation of La. R.S. 14:(27)30.1. The indictment contains a hand written notation from Shannon Swaim, assistant district attorney, whereby she amended count 2 of the indictment to attempted second degree murder of James Jones. Further, Ms. Swaim signed and dated the amendment October 12, 2004. Additionally, the record also contains a minute entry made on October 13, 2004 that states: “On the first day of trial, the State amended the Bill of Information. The State amended 12count 1 of the Bill of Information to read RS 14:30.1 second degree murder. The State amended count 2 of the Bill of Information to read RS 14(27)30.1 ATT 2nd degree murder.”

On October 13, 2004, a twelve-person jury found Moliere guilty on both amended counts. The trial court sentenced Moliere on October 20, 2004. On count one the trial court sentenced Moliere to life imprisonment. On count two the trial court sentenced Moliere to fifty years imprisonment. The trial court ordered these sentences to be served without benefit of parole, probation, or suspension of sentence and that they be served concurrently. On October 26, 2004 Moliere filed a motion for appeal, and the trial court appointed the Louisiana Appellate Project to represent Moliere. The record was lodged in this court on March 18, 2005. Moliere filed his brief on May 31, 2005. On June 25, 2005 this court denied the State’s motion to supplement the record and interrupt the briefing schedule. The State filed its brief on July 5, 2005. We note that Moliere does not appeal his conviction for the second degree murder of Brandon Davis.

STATEMENT OF FACT

This case concerns the conviction of Raymond Moliere for the second degree murder of Brandon Davis and the attempted second degree murder of James Jones. Early in the morning of June 26, 2003, Davis and Jones were leaving a nightclub called The Showcase, in New Orleans East. Felicia Hughes, who worked at The Showcase and who knew both Davis and Jones, asked them to give her a ride to Chalmette, Louisiana, where she was staying at the time. They agreed to give her a ride.

On the way to the car, Raymond Moliere also asked Davis and Jones for a ride to a residence on Skyview Drive in New Orleans East. Once again, Davis and |aJones agreed. Davis and Jones knew Moliere, and a month before Davis and Moliere had been in an altercation. Hughes also knew Moliere. They had previously been involved in a sexual relationship, but Hughes had broken it off when she suspected Moliere of stealing from her.

Once they arrived in front of Moliere’s destination on Skyview Drive, Davis asked Moliere to get out of the car so he could take Hughes home. Moliere pulled out a gun and began shooting. Jones testified that he was shot in the neck, and then he hopped out of the back seat and attempted to run to the corner. Moliere continued shooting, and a bullet landed in Jones’ left leg. Moliere then stood over Jones and fired another shot that hit Jones in the arm. Jones testified that he observed Davis lying across from him near the curb. Hughes testified that she exited the car and ran down the street, and that Moliere chased her, but eventually he turned around and got back in the car.

Based on interviews with Jones while he was in the hospital, police identified Moliere and issued a warrant for his arrest. Moliere was eventually arrested on June 28, 2003, after an officer from the Seventh District observed him in the vicinity of Esplanade and North Robertson.

On October 13, 2004, a jury convicted Moliere of the second degree murder of Brandon Davis and the attempted second degree murder of James Jones. His appeal is now before us.

DISCUSSION

Defendant contends that his conviction for attempted second degree murder is an error patent because he was not properly indicted on that charge. Specifically, count two of the indictment originally charged defendant with armed robbery but defendant contends that it was improperly amended to charge him with ^attempted second degree murder. Defendant’s argument is twofold. First, defendant contends that the State had no authority to amend count two, armed robbery, to the nonresponsive crime of attempted second degree murder. Second, defendant argues that his conviction for attempted second degree murder should be reversed because the record does not establish when the State amended the bill of information.

Defendant’s first contention is without merit. The Louisiana Supreme Court has held that a prosecutor may make substantive amendments to a grand jury indictment before trial begins. State v. Neslo, 433 So.2d 73 (La.1983). Where the defense can show prejudice as a result of the amendment, the court should grant a motion for a continuance. La.C.Cr.P. art. 489. Presently, the record shows that defendant neither objected to the State’s amendment of count two of the indictment nor asked the trial court for a continuance pursuant to La.C.Cr.P. art. 489. Moreover, the record does not show that defendant objected to the trial court’s jury instructions regarding second degree murder or attempted second degree murder.

Further, it is difficult to see how the state’s amendment of count two prejudiced Moliere. It became apparent at the suppression hearing, held over seven months before trial, that Moliere’s shooting of Jones would support an attempted second degree murder indictment. Specifically, defendant’s conviction for the attempted second degree murder of Jones was based, aside from the ballistics evidence, on the eye-witness testimony of Jones. Jones’ testimony at the suppression hearing effectively mirrored his testimony at trial. Further, counsel at the hearing was the same counsel at trial. Thus, Moliere suffered no prejudice from the State’s amendment of count two on the day of trial.

| ¡¡Defendant next contends that his conviction for attempted second degree murder 'should be reversed because the record does not establish when the State amended the bill of information. Specifically, the record does establish that the State amended count two of the indictment on the day of trial. To reiterate, on August 21, 2003 Raymond Moliere was indicted by the Orleans Parish Grand Jury on two charges: 1) the first degree murder of Brandon Davis, a violation of La. R.S. 14:30; and 2) the armed robbery of James Jones, a violation of La. R.S. 14:64. Moliere pled not guilty to both counts at his arraignment on August 28, 2003.

On October 12, 2004 the State amended count two of the indictment to charge Moliere with the attempted second degree murder of James Jones, a violation of La. R.S. 14:(27)30.1. The indictment contains a hand written notation from Shannon Swaim, assistant district attorney, whereby she amended count two of the indictment to attempted second degree murder of James Jones. Further, Ms. Swaim signed and dated the amendment October 12, 2004. Additionally, the record also contains a minute entry made on October 13, 2004 that states: “On the first day of trial, the State amended the Bill of Information. The State amended count 1 of the Bill of Information to read RS 14:30.1 second degree murder. The State amended count 2 of the Bill of Information to read RS 14(27)30.1 ATT 2nd degree murder.” It is unclear whether the amendment occurred before the trial began.

La.C.Cr.P. art. 487 provides that the court may order an indictment amended before the trial begins. If the indictment is amended after the trial begins, “a mistrial shall be ordered.” The Fourth Circuit adopted this principle in State v. Wheeler, 95-1268 (La.App. 4 Cir. 12/14/95); 665 So.2d 1286. There, the Fourth Circuit found that the trial court committed reversible error by allowing the state to | fiamend an indictment against the defendant to charge her with a different violation during the trial.

The Wheeler court was following the Supreme Court precedent set in State v. Johnson, 93-0394 (La.6/3/94); 637 So.2d 1033. The Court held that the State may not substantively amend a bill of information to charge a new offense once trial has begun. In Johnson, at trial the evidence revealed that appellant possessed both cocaine and imitation cocaine, or “bunk.” The original charges against the appellant were for possession of cocaine with intent to distribute. In his instructions to the jury, the trial court instructed them that they could return a guilty verdict if they found that the appellant had violated the relevant statute on possession of a counterfeit controlled substance. The Supreme Court ordered his conviction overturned.

The Supreme Court in Johnson explained that the Louisiana Constitution:

[Provides that in a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. This requirement protects the accused’s right to prepare a defense and exercise fully his rights of confrontation and cross-examination. The bill of information must therefore inform the defendant of the nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence.
State v. Johnson, 93-0394 (La.1994); 637 So.2d 1033, at 1034-35 (internal quotations and citations omitted).

Here, the minute entry notation indicates that the amendment occurred on the first day of the trial. The record does not definitively indicate that the amendment occurred before the trial began. Following the precedent set in Johnson, Wheeler, and La.Code of Criminal Procedure article 487, whereby the accused’s right to prepare for the nature and the cause of accusation against him|7were not protected, we overturn the conviction of count two of the defendant’s indictment, for the attempted second degree murder of James Jones in violation of La. R.S. 14(27)30.1.

CONCLUSION

For the foregoing reasons, we reverse Raymond Moliere’s conviction and sentence for the attempted second degree murder of James Jones, but note that Moliere did not appeal his conviction for the second degree murder of Brandon Davis.

REVERSED AND REMANDED.

CANNIZZARO, J., dissents with reasons.

CANNIZZARO, J.,

Dissents with Reasons.

|TI respectfully dissent from the majority opinion. I would not reverse the attempted second degree murder conviction based on the record that is before us. Although we cannot determine from the record whether or not the amendment to the indictment occurred before or after the trial began, La.C.Cr.P. art. 487 only requires that a mistrial be ordered if the indictment is amended after a trial begins. In the instant case, the indictment could well have been amended prior to the beginning of the trial.

In the cases cited in the majority opinion, there was never any question that the charge against the defendant had been amended after the beginning of the trial. In the Wheeler case, the charge against the defendant was amended after the witnesses had testified. In the Johnson case, the bill of information charging the defendant was never formally amended, but the jury charge given by the judge broadened the possible basis for a conviction by adding a new and separate crime not contained in the bill of information for the jury to consider. In both the Wheeler and the Johnson cases, the defendant objected to the action taken. The facts of these cases are clearly distinguishable from the facts in the instant case, where there is no evidence of when the indictment was amended and where there was no objection raised by the defendant to the amended indictment.

|J would not reverse the conviction in this case until after it has been determined that the indictment was amended after the trial had begun. Therefore, I would remand this case to the trial court for an evidentiary hearing on the issue of whether the indictment was amended before or after the beginning of the trial.

ORDER

The State of Louisiana’s Motion to Supplement Record is granted.


author: JOAN BERNARD ARMSTRONG, Chief Judge. BELSOME, J.,

text:
    Judith Brown MYERS v. William A. MYERS, III.
    No. 2004-CA-2120.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 26, 2006.

      Roger J. Larue, Jr., Metairie, Counsel for Plaintiff/Appellant.
    William A. Myers III, New Orleans, In Proper Person, Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hln this ongoing divorce litigation, Judith Brown Myers appeals the trial court’s reduction of William A. Myers, Ill’s monthly obligation for the support of their minor son, pursuant to a Special Master’s Report.

Mr. Myers is the sole proprietor of Trial Exhibits, Inc. and its subsidiary, Electronic Presentations, primarily serving trial attorneys in the preparation of trial exhibits. In connection with these enterprises, he operates a home office in Lake Vista. Mrs. Myers is employed as a gate agent for Delta Airlines in Kenner.

Mrs. Myers filed a petition for divorce in May, 2000, and was granted a judgment of divorce in December of that year. An interim judgment of December 21, 2000 provided, inter alia,- that Mr. Meyers should pay $3500 per month for child and spousal support beginning on January 15, 2001, and $1500 prior to December 31, 2000. On March 19, 2001, Mr. Myers moved to terminate Mrs. Myers’ interim spousal support, which motion was granted effective June 21, 2001 by judgment rendered March 29, 2001. On April 18, 2001, Mrs. Myers filed a rule pto set alimony and child support retroactive to May 8, 2000. On June 20, 2001, the trial court entered judgment ordering Mr. Myers to pay monthly child support of $1500 and monthly spousal support in the amount of $3500 terminating on June 21, 2001 and subject to a credit of $18,400 toward the retroactive support obligation owed from May 8, 2000 through December 21, 2000. This judgment, requiring monthly support payments of $1500, deviated from the statutory support guidelines, from which we infer that the trial court found the combined monthly incomes of Mr. and Mrs. Myers exceeded $10,000. La.R.S. 9:315.13 B. Given Mrs. Myers’ monthly salary of approximately $1600, it is clear that the trial court found Mr. Myers’ income to have been more than $8,400, for an annual income of at least $100,000.

On December 13, 2001, Mr. Myers filed a motion to reduce his monthly obligation, citing a change of circumstances to his financial detriment allegedly caused by the actions of Mrs. Myers and her various attorneys, and to gain custody of the couple’s minor son.

On January 16, 2003, the trial court appointed Frank Tranchina as Special Master to determine the parties’ gross incomes and all other financial issues associated with Mr. and Mrs. Myers’ motions concerning his support obligation.

According to the Special Master’s report of March 20, 2003, Mr. Tranchina obtained the services of Meló B. Nix, a forensic accountant, to review the parties’ documentation and to determine their respective gross incomes. Ms. Nix |scalculated Mr. Myers’ gross income to be $82,541 and Mrs. Myers’ income to be $19,097.95. The Special Master concluded that the $15,859 decrease in Mr. Myers’ income was material, warranting a reduction in his child support obligation.

The special master calculated Mr. Myers’ monthly child support obligation to be $794 plus 81% of any extraordinary medical expenses pursuant to the support guidelines, to be adjusted based upon each party’s respective percentages for any health insurance premiums paid. The master based this calculation on Mrs. Myers’ gross monthly income of $1,591.50 and Mr. Myers’ gross monthly income of $6,878.42. This results in an 81% portion for Mr. Myers and a 19% portion for Mrs. Myers, applicable to the basic statutory support obligation of $980 for one child. See La.R.S. 9:315.19.

Attached to the Special Master’s report is Melo Nix’s letter of March 14, 2003, in which she notes:

I have reviewed the additional documentation delivered to me by Mr. Myers and that review has not changed the conclusion reached by me at our meeting.

She calculated Mr. Myers’ 2002 income from total deposits, excluding transfers, of $126,348, less half of his automobile and travel expenses, 25% of his home office rent and utility expense, and all expenses for office supplies, subcontractor, computer and photographic expenses, telephone and bank charges, for total expenses of $43,897. This resulted in income of $82,541. Ms. Nix reviewed Mr. Myers’ 2001 tax return showing his reported income from Trial Exhibits, Inc. of | ¿$97,204. Mrs. Myers’ W-2 form for 2002 showed gross wages from Delta Air Lines in the amount of $19,097.95.

On June 13, 2003, Mrs. Myers filed an objection to the Special Master’s report, waiving service of the report. Mrs. Myers made the following objections relevant to this appeal:

1. The Special Master and the CPA, Ms. Nix, requested additional information from Mr. Myers, made an ex parte request that Mr. Myers explain the data he provided, met ex parte with each other and with Mr. Myers and filed the final report after the date set by the trial court.
2. There was no showing of a change of circumstances between the time of the previous support award and the time of the filing of Mr. Myers’ motion for modification. Furthermore, the Special Master allegedly ignored the trial court’s finding in the reasons accompanying the June 20, 2001 judgment that the testimony established that the parties’ combined adjusted gross income exceeds the Louisiana Child Support Guidelines of $10,000 per month.
3. Neither the Special Master nor Ms. Nix inquired as to whether Mr. Myers was concealing, diverting, under-reporting or otherwise falsifying his income as he had allegedly done in a prior divorce case.

In Mrs. Myers’ Objection, she claims $22,800 for child support and $80,500 for spousal support.

Mr. Myers responded noting that the only issue before the trial court was the amount of his 2002 income, and the appropriate amount of his child support obligation based upon that income.

|fiOn June 29, 2003, the trial court granted Mr. Myers’ motion to quash discovery subpoenas issued to various law firms alleged to be his clients and to his bank regarding his income and business dealings. We denied Mrs. Myers’ application for supervisory review of that order:

Relator’s [Mrs. Myers’] argument that Judge Landrieu’s order of January 16, 2003 provided that discovery could begin once the Special Master’s report issued is without merit. It ignores Judge Le-det’s order of May 26, 2000 and October 29, 2000. The record shows respondent [Mr. Myers] was clearly entitled to the order granting the discovery requests; there was no need for a hearing. La. C.C.P. art. 963.

Myers v. Myers, 2003-C-1317 (La.App. 4 Cir. 9/9/03). The Louisiana Supreme Court unanimously denied writs in Myers v. Myers, 2003-2785 (La.11/31/03), 857 So.2d 489.

On September 9, 2003, Mrs. Myers filed a Motion to Strike the report and findings of the Special Master. The trial court heard the motion on January 8, 2004.

On August 30, 2004, the trial court entered judgment finding that the Special Master’s report was supported by the evidence. The court found that Mr. Myers’ monthly income on January 2, 2002, the date on which he filed his Rule to Modify Child Support, was $6,878.42, and Mrs. Myers’ monthly income on that date was $1591.50. Pursuant to La.R.S. 9:315.19, the basic child support obligation for one child whose parents have this income is $980. Mr. Myers was adjudged responsible for 81% of that obligation, and he was ordered to pay Mrs. Myers $794 per month retroactive to January 2, 2002, plus 81% of any extraordinary expenses, including tuition or child care costs. The trial court did not take testimony or address the issue of past due support. The trial court found that further discovery | fivia third parties would not be in the child’s best interest, and ordered that any additional discovery requests from third parties must be submitted for prior court review.

On October 13, 2004, the trial court granted Mrs. Myers’ motion for a devolu-tive appeal of the judgment issued on August 30, 2004. On appeal, Mrs. Myers alleges manifest error and abuse of discretion and seeks reversal of that judgment and reinstatement of the trial court’s judgment of June 20, 2001, awarding $1500 monthly child support, together with costs. For the reasons that follow, we affirm the judgment of the trial court.

Mrs. Myers complains that the Special Master’s failure to seek discovery vitiates his report and that the trial court’s action in appointing the Special Master rather than ruling on Mrs. Myers’ outstanding motion to compel discovery has prejudiced her. In light of our ruling on Mrs. Myers’ application for supervisory review of the trial court’s order quashing her subpoenas, this argument is without merit.

Mrs. Myers contends that insufficient credible evidence was submitted to justify a reduction in child support based on a material change in Mr. Myers’ financial circumstances, arguing that the Special Master and court-appointed forensic CPA did not research the financial issues adequately or independently.

Mrs. Myers argues that the Special Master’s and forensic CPA’s methodology does not meet the standard for acceptance of expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and State v. Foret, 93-0246 (La.11/30/93), 628 So.2d 1116. Mrs. Myers claims that the experts did not perform independent research, but merely 17accepted the documentation furnished by the parties as to their respective incomes during the time period in question.

The Louisiana Code of Evidence provides that if technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. La.C.E. art. 702; see also F.R.E. 702. This provision constitutes an exception to the general rule that a witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences that are both rationally based on the witness’s perception and helpful to a clear understanding of his testimony or the determination of a fact in issue. La.C.E. art. 701; see also, F.R.E. 701.

Broad discretion should be accorded the trial judge in his or her determination as to whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. La.C.E. art. 702, Official Comment (d); see also, 3 J. Weinstein & M. Berger, Weinstein’s Evidence par. 702[02] (1981); 1 id. par. 104[03] (1982).

The standard set forth in Daubert and Foret requires the trial court to act as a gatekeeper to insure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. It requires that the expert’s opinion has a reliable basis in the knowledge and experience of his discipline. We are mindful of the Dau-bert court’s comment that the balance between probative value and potential for prejudice is “designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.” 509 U.S. at 597, 113 S.Ct. at 2799. Mrs. Myers has not directed this Court to any authority that would indicate that the approach taken by Mr. Tranchina and Ms. Nix violated the | ¿methodology used by reasonable professionals in ascertaining the information required in the trial court’s order appointing the Special Master.

At the hearing on Mrs. Myers’ Motion to Traverse, the parties stipulated that if Mr. Tranchina were to testify, he would testify in accordance with his report, which was admitted into evidence. The court also received into evidence a copy of Mr. Myers’ motion filed on December 13, 2001 seeking reduction of his child support obligation. Ms. Nix was accepted as an expert certified public accountant with no objection by the parties. She testified that she did not do a review or audit, but received the information given to her by Mr. Myers and based her report on that information. She testified that Mr. Myers’ 2002 income was $82,541, a $15,859 decrease from the previous year’s income reflected in a prior trial court judgment. Ms. Nix testified that she researched the final figures from documentation provided by Mr. Myers, including corporate and individual bank statements and disbursement spread sheets.

Mr. Myers, individually and as principal for his businesses, leases the Lake Vista property from Charles A. Kronlage. Mr. Myers lived in the house after his separation; however, during the marriage, the family lived on Dryades Street in uptown New Orleans and only the businesses occupied the Lake Vista property. When questioned about her allocation of 25% of the home expenses to the home office, Ms. Nix testified that she and Mr. Tranchina believed the 25% allocation, which resulted in a monthly rent allocation of $500, to be reasonable. She applied the same percentage to utility expenses, resulting in an annual utility plus rental expense attributable to the businesses of $7,297. Counsel for Mrs. Myers questioned a $1000 subcontracting expense check payable to Mr. Myers’ sister. When questioned by Mr. Myers as to whether it would be reasonable to pay his | Ssister $1000 for a year’s work helping him to answer the phone, forwarding his calls and assisting with his trial materials and illustrations, Ms. Nix replied that this was reasonable. Ms. Nix also testified that she allocated the entire annual telephone expense of $5,142 to Mr. Myers’ businesses, opining that this represented a reasonable telephone expense for Mr. Myers’ businesses. She allocated half of his automobile expenses to the businesses, as a reasonable allocation. She also testified in response to questioning by the trial court that she found his living expenses and lifestyle to be consistent with an annual income of between $80,000 and $85,000. When questioned by Mrs. Myers’ counsel concerning a sixty-seven hundred dollar deposit into Mr. Myers’ personal account, Ms. Nix noted that the check came from Mr. Myers’ own business, and did not represent additional income.

Mr. Tranchina testified that he and Ms. Nix examined the documentation and found no basis on which to conclude that there were hidden bank accounts or fraud. They also performed a reverse imputation, and concluded that Mr. Myers’ lifestyle was consistent with the reported income.

The trial court asked counsel for Mrs. Myers whether he had any evidence of a “hidden” or undisclosed bank account or support for an allegation of fraud. Counsel asserted unspecified testimony by Mr. Myers in a November 29, 2000 trial and a Hancock Bank account in the name of Frederick W. Myers d/b/a Electronic Presentations System, showing three credits in July of 2000. Mr. Myers testified that while represented by her sister, Mrs. Myers alleged incorrectly that the Lake Vista property was the “family home” and seized the property, thus denying Mr. Myers access to his banking records, books and business equipment. He stated that | inthis action essentially shut down his business and resulted in separate litigation. During that time, he set up the Hancock account and made deposits in an attempt to keep his business going. Mr. Myers testified that the funds deposited in the Hancock Bank account eventually were transferred back into his Omni account and were fully disclosed and reported.

We find no basis for a conclusion that the trial judge abused her broad discretion in accepting the methodology used by Mr. Tranchina and Ms. Nix.

Mrs. Myers claims that it is suspicious that Mr. Myers knew in December of 2001, when he filed his Motion to Reduce, that his income would have declined materially the next year. However, it is clear that the extended divorce litigation damaged his business, a fact that was evident at the time Mr. Myers filed his motion. We find no abuse of discretion in the trial court's rejection of Mrs. Myers’ suspicion in this respect.

Mrs. Myers contends that the trial court erred in finding a material change in circumstances because Mr. Myers produced no evidence other than that produced in connection with the Special Master’s Report. Because we find no abuse of the trial court’s broad discretion in accepting the facts set forth in the Report, this assignment of error is without merit.

Mrs. Myers argues that the Special Master did not fulfill his statutory obligation to exercise the power to regulate all proceedings before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties. La.R.S. 13:4165 B. Mrs. Myers produced no credible, competent evidence that Mr. Myers committed fraud in the present ease or in connection with luhis prior divorce litigation. Mr. Tranchina testified that his review of the documents and his and Ms. Nix’s review of the circumstances of Mr. Myers’ life did not lead him to suspect any type of fraud, absent which he would not subpoena the records of Mr. Myers’ clients. Apparently, the trial court agreed with this course of action and we find no abuse of her broad discretion in that conclusion.

Mrs. Myers claims that the Special Master and Forensic CPA violated her consent and engaged in inappropriate ex parte conversations with Mr. Myers and the trial judge. Mrs. Myers admits in brief that the experts did not violate a clearly set guideline, as was the case in the jurisprudence cited in support of her position. Mrs. Myers refers this Court to Mr. Tranchina’s letter of March 11, 2003, responding to Mrs. Myers’ counsel’s letter of March 3, 2003. Counsel advised Mr. Tran-china that he did not consent to ex parte contact with Mr. Myers, to asking Mr. Myers for additional documentation, or to an extension of time within which to issue his report. Mr. Tranchina’s reply advised that he would call Mr. Myers and remind him to send Mrs. Myers’ counsel copies of all documentation supplied to Mr. Tranchi-na. He said that he had asked Mr. Myers for additional documentation needed by Mrs. Nix and which would be forwarded to counsel and to Mrs. Myers’ accountant advocate. Mr. Tranchina noted that since his communications with Mr. Myers concerned requests for additional information needed by the court-appointed CPA, he assumed no one would object. He also noted the timing issue that had arisen because the generation of the report occurred during tax preparation season, and the CPA needed additional time to review the original and additional documentation supplied concerning Mr. Myers’ income for the relevant time period. These documents were before the trial court, and we cannot say that she abused her broad discretion in concluding that these communications were not ^improper so as to vitiate the Special Master’s Report. Moreover, there is no indication in the transcript of the hearing on Mrs. Myer’s Motion to Traverse the Report of the Special Master that Mrs. Myers introduced evidence of impropriety or raised any issues of fundamental fairness or due process.

For the foregoing reasons, we affirm the judgment of the trial court accepting the Report of the Special Master and ordering Mr. Myers to pay monthly child support in the amount of $794 retroactive to January 2, 2002 and 81% of any extraordinary expenses. ■ We assess the costs of this appeal to the appellant, Judith B. Myers.

AFFIRMED.

BELSOME, J., concurs in the result.

BELSOME, J.,

Concurs in the Result.

pThe undersigned reads La. R.S. 13:4165 to limit the Special Master’s findings to those issues which the trial court orders him to examine. In the case at hand, the trial court’s order states that the Special Master “determine the gross incomes of the parties and all other financial issues associated with Mr. Myers’ rule to reduce his child support and Mrs. Myers’ motion to make past due support executo-ry.” It is inappropriate for the Special Master to issue findings on exceptions (“the motion... does state a cause of action”), the trial court’s previous determinations (“the Court was correct”), or pending motions (“the motion for new trial... should be denied.”)

The Special Master statute was designed to assist a trial court in performing its duties in complicated litigation, not as a means to substitute the Special Master’s opinion for that of the district court judge. While this Special Master report may be overly broad, the trial judge accepted and adopted it. Given the previous rulings by this court determining the scope of discovery, the undersigned is compelled to uphold the trial court. I respectfully concur in the result reached by the majority.

      . In his pro se brief, Mr. Myers suggests that a prior support judgment dated June 20, 2001 was not supported by the evidence. That judgment was not appealed and is now final and unappealable.

      . The court issued further orders at that time that are not relevant to this appeal.

      . Mr. Tranchina and Ms. Nix had reviewed Mr. Myers’ prior years’ income in connection with previous divorce litigation.

      . The issue of spousal support was not addressed by the trial court’s judgment and is not before the Court in this appeal.

      . Myers v. Schultz, 2001-7443, Civil District Court for the Parish of Orleans. Judgment was rendered on January 10, 2005 awarding Mr. Myers $375,000 in damages from Mrs. Myers' sister and former attorney.