text:
    STATE of Louisiana v. Jason MATTHIS.
    No. 2007-KP-0691.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
    Rehearing Denied Jan. 7, 2008.

      Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, LaShanda Webb, Assistant District Attorneys, for applicant.
    Regan & Associates, Martin E. Regan, Jr., Karla M. Baker, New Orleans, for respondent.
   PER CURIÁM.

| jThe state charged respondent by grand jury indictment returned in 1999 with second degree murder in violation of La.R.S. 14:30.1. After respondent waived a jury and elected a bench trial, the court found him guilty as charged and sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence. On direct review, the court of appeal affirmed the conviction and sentence, rejecting, inter alia, his argument that the trial judge erred in reopening the evidence after closing arguments by visiting the scene of the crime in the company of the lead investigating officer and the prosecutor. State v. Matthis, 00-0219 (La.App. 4th Cir.11/29/00), 775 So.2d 558. With regard to this claim, the court of appeal found that respondent failed to show any prejudice “even though the order of events was admittedly unusual.” Matthis, 00-0219 at 12-13, 775 So.2d at 563-565 (“The evidence of where the body and items were found was already in evidence through the photographs [of the crime scene]. No hnew testimony was taken .... [and] the trial judge gave defense counsel an opportunity to re-visit the scene with all parties present [and] might have been willing to entertain further argument should it have been necessary, during which the defense could have argued relevant points about the scene.”). This Court denied review. State v. Matthis, 00-3552 (La.11/9/01), 801 So.2d 358.

Thereafter, respondent filed an application for post-conviction relief in 2002 alleging a claim of ineffective assistance of counsel related to the unusual step taken by the trial judge of visiting the crime scene after closing arguments. Cf. La. C.Cr.P. art. 765(5)(in the normal order of trial, the court “in its discretion may permit the introduction of additional evidence prior to argument”). Following an eviden-tiary hearing, the district court granted relief, reversed respondent’s conviction and sentence, and ordered him released from the penitentiary on his original bond to await retrial. The state sought review in the court of appeal, which denied its application upon finding no abuse of discretion by the district court. State v. Matthis, 06-1555 (La.App. 4th Cir.3/5/07)(Love, McKay III, Kirby, JJ.). We granted the state’s application to review the rulings below and now reverse and reinstate respondent’s conviction and sentence because respondent, who failed to show any prejudice on direct appeal, has not demonstrated in these post-conviction proceedings that the trial court’s unusual action, and defense counsel’s failure to respond in what respondent would deem an appropriate manner, deprived him of a fundamentally fair trial, one resulting in a verdict worthy of confidence.

The present case arose from the beating death of a man found lying in the middle of the 6000 block of Old Gentilly Road at 3:30 a.m. on January 22, 1999. The location is a relatively remote area in New Orleans East where Old Gentilly | aRoad ends at the Jourdan Road overpass off Almonaster Boulevard between Chef Mentur Highway and I — 10 East. The victim was still breathing at the time he was found but he had sustained a fractured skull and several broken ribs and he died in a hospital shortly thereafter. At the bench trial, defense counsel characterized respondent as an unwilling witness to the actions of his acquaintance, Jason Marullo, who was with him on the night of the instant offense. Respondent did not testify at trial but in a recorded statement given the police at his parents home in Slidell, Louisiana, two days after the incident and after he received his Miranda rights, he related that he had been out drinking with Marullo that morning when they encountered the victim who asked Marullo whether he had any cocaine. The three men then got into respondent’s car and the victim directed respondent to the scene on Old Gentilly Road where he and Marullo planned to conduct a drug deal without fear of discovery. Instead, Marullo got the victim out of the car, pummeled him to the ground, and then stomped on him. Respondent finally interceded by pulling Marullo off of the victim and back into the passenger side of his car. According to respondent, Marullo climbed into the driver’s seat and drove over the victim. In connection with his statement, which the state played at trial, respondent provided the officers with a set of clothes he claimed to have worn on the night of the offense. As for Marullo, he subsequently fled town and died shortly thereafter, but not before informing respondent’s brother that he alone was responsible for the victim’s death and that respondent had no complicity in the offense. Marullo also made similar statements to a long-time friend of respondent before leaving town.

However, despite respondent’s claim that he was a mere bystander, the state presented evidence at trial that on the same morning, respondent and Marullo | ¿walked into a lounge on Hayne Boulevard and that Marullo announced spontaneously to Charles Melancon, an acquaintance seated at the bar, that “we” had killed a man. Melancon did not take Marullo seriously at first but followed him and respondent into the bar’s restroom where he saw Marullo at the sink washing blood off his person and his clothing as respondent, marked with blood specks on his forehead and arms and with blood soaking his lower pants legs, stood next to him “waiting his turn.” Marullo described the victim as “an old white crack head,” and when Melancon asked him how he had died, Marullo responded, “We beat him to death.” Melan-con then asked Marullo why he was sure that the victim had died and respondent spoke up for the first time, interjecting that, “I ran him over with my car.” Later that morning, as the police were conducting their investigation by interviewing one of the victim’s co-workers after determining his place of employment, Melancon came forward with information about what he had seen and heard in the lounge on Hayne Boulevard. The police then interviewed Melancon and Holly Smith, the barmaid on duty when respondent and Ma-rullo made their appearance, and recovered a bloody shoe string and a bloody cloth towel from the restroom in the bar.

At trial, Melancon and Smith testified that the clothing respondent provided the police after they sought him out at home and obtained a statement about the incident did not match the clothing he had been wearing on the morning of the offense. In addition, Officer Joseph Tafaro, an expert in blood and hair comparison, examined the car respondent had driven on the night of the offense, Subsequently impounded by the police following his arrest, and found several blood stains on samples taken from the seats and the carpeted floorboard. The officer could not match the blood to respondent but he also found two hairs on the |,^victim's clothing that appeared similar to respondent’s hair, suggesting “that there was some type of physical contact between the victim and Mr. Matthis.” In an effort to explain some of the forensic evidence, respondent called his father, who owns a body shop in Slidell, to establish that the family had purchased the car after it was “totaled” in a bad accident which left blood and human tissue embedded on the inside of a badly fractured windshield when the occupants’ heads hit the glass. Jerry Heirsch, who did work for the Mathis family body shop, testified that when he replaced the windshield he also noticed other blood stains on the inside of the vehicle.

Against this backdrop, in a counseled application for post-conviction ■ relief, respondent reargued his assignment of error urged on direct appeal that the trial judge erred in visiting the scene with the state’s lead investigating officer at the conclusion of closing arguments. That aspect of the application was repetitive. and could not alone have supported the granting of post-conviction relief. La.C.Cr.P. art. 930.4(A)(“Unless required in the interest of justice, any claim for relief which was fully litigated in an appeal from the proceedings leading to the judgment of conviction and sentence shall not be consid-éred.”). However, the application added claims that defense counsel, who had objected initially to the court’s decision and then got lost on the way to the scene because he traveled separately in an attempt to join the trial judge, the police officer, and the prosecutor, rendered ineffective assistance in two respects: first, by waiving relator’s presence when the trial judge viewed the crime scene, a “critical stage” in the proceedings that respondent could easily have attended as he was out on bond at the time; and second, by declining -the court’s offer on the following day to revisit' the scene and reconstruct what had taken place on the preceding evening. The application | ^claimed that by failing to reconstruct the events, counsel deprived respondent of an opportunity to address personally any questions raised by the trial judge about the crime scene and thereby also deprived him of adequate appellate review based on a full record of the proceedings leading to his conviction.

Following an evidentiary hearing on the claims, which included testimony from the. former partner of the lead investigating officer, Detective Byron Adams, who-had died by the time of the hearing, respondent’s trial counsel, and respondent, the district court granted relief and ordered a new trial. The court did not provide written reasons for its judgment. In upholding the district court’s ruling, the court of appeal specifically noted that “[t]his Court did not have all the issues raised in the application for post-conviction relief when the motion came before us on appeal.” Matthis, 06-1555 at 1, n. 1.

The premise of the rulings below that counsel erred in his response to the trial court’s action drew on jurisprudence in this Court that a tribunal’s viewing of the scene of a crime constitutes the taking of evidence and that defendant- and his counsel therefore have a right to be present. State v. O’Day, 188 La. 169, 175 So. 888, 841 (1937)(“It is only reasonable that, viewing the scene, the physical facts and the circumstances surrounding the scene is as much the taking of evidence as taking the testimony of witnesses.”). The holding in O’Day is incorporated in La.C.Cr.P. art. 762(2), which permits a jury or a judge “to view the place where the crime or any material part thereof is alleged to have occurred, or to view an object which is admissible in evidence but which is difficult to produce in court.” The article further provides that “[a]t this view, the court shall not permit the taking of evidence except in connection with the place or ob-ject_” The article |7presupposes “that the judge, the district attorney, the defendant, and his counsel have to be present.” La.C.Cr.P. art. 762 Offl Rev. Cmt.(d).

Nevertheless, even assuming that La.C.Cr.P. art. 762(2) would have allowed respondent to testify for limited purposes related to the viewing of the crime without exposing him to cross-examination on the entire case, thereby giving' him an opportunity to explain various aspects of the scene from his perspective, the courts below erred because the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by this Court in State v. Washington, 491 So.2d 1387, 1339 (La.1986), requires respondent to show not only that his trial attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms but also that counsel’s inadequate performance prejudiced him to the extent that the trial was rendered unfair and the verdict suspect, i.e. that counsel’s errors undermined the proper functioning of the adversary process.

Respondent fails to make the latter showing because, unlike the case in O’Day, it clearly appears that details of the crime scene did not implicate any of the evidence upon which his conviction rests. According to the account provided by the trial judge for the record, he simply asked Detective Adams to point out the three locations represented in the state’s photographic exhibits and described by the officer in his testimony: the spot where “[y]ou could see actual scuff marks in the dirt, as well as the victim’s money and identification;” the “impact section” “where the victim’s scalp and hair was;” and the location where the victim dragged “himself from that location to the point where his body was found.” As described by the officer, and even assuming that he and the trial judge entered into an extended discussion about the scene as they viewed it, these various locations Iscould not resolve the question of whether the victim had in fact been struck or run over by respondent’s vehicle, a matter about which the pathologist who performed the autopsy could find no objective evidence despite the various injuries sustained by the victim, much less settle who was driving at the time.

On the other hand, in O’Day, this Court had the benefit of a per curiam by the trial judge explaining why he allowed the jurors to view the scene where the homicide took place, and then to view the car in which the shooting occurred where it had been impounded in the basement of the Criminal District Court building in Orleans Parish. The trial judge observed that the location of the hair, bone and tissue left in the vehicle as a result of a bullet fired through the victim’s head bore directly on the' question of whether, as the state claimed, defendant had shot the victim as she turned her back to him and stepped out of the car, or whether, as defendant claimed, he shot in self-defense. O’Day, 175 So. at 840-41; see also State v. Gallow, 338 So.2d 920, 923 (La.1976)(trial court did not abuse its discretion in permitting jurors to view scene of the murder because “there were several people involved in the shooting incident which resulted in the victim’s death .... the location of each participant [was] critical .... [and] the photographs [introduced of the scene] were insufficient to show clearly the location of the participants.”).

Thus, even assuming that in the present case counsel erred initially in waiving his client’s presence and then in declining the trial judge’s offer to revisit the scene with respondent present, respondent makes no. showing that would undermine confidence in the reliability of the verdict returned by the court, which rejected the testimony of respondent’s family and friends who portrayed him as an unwitting and unwilling bystander and found credible the testimony of a totally |sunrelated witness who heard Marullo announce that “we”, killed someone and respondent claim that he had run over the victim with his ear. On direct review, and in the context of relator’s own statement to the police in which he admitted that he had been present on the scene with Marullo when the victim sustained the injuries that killed him, the court of appeal found this evidence sufficient for any rational trier of fact to find respondent guilty of second degree murder. Matthis, 00-0219 at 10, 775 So.2d at 563 (“Most importantly, the State presented a witness, who said that the defendant was bragging at the bar that he ran over the victim with his car. The- trier of fact, a seasoned Criminal District Court judge, found the witness credible. These facts are more than sufficient to support a finding that the defendant intended to kill the victim and that he succeeded in that objective.”). Relator thus has not demonstrated that his conviction “resulted from a breakdown in the adversary process that rendered] the result unreliable.” Strickland, 466 U.S. at 687,104 S.Ct. at 2064.

Nevertheless, respondent argues that testimony adduced at the hearing on his application for post-conviction relief provides an independent ground for affirming the court’s grant of a new trial. Detective Darryl Ribert, had- also been present when respondent gave his statement to Detective Adams, and he testified at the hearing to his firm belief that respondent appeared to have been honest in his accounting of the incident and that if it had been his case, and he had been the lead detective, he “would have charged him with accessory after the fact” to the murder committed by Marullo. Detective Ribert recalled that he and Detective Adams were certain at trial that the court would return at most a verdict for manslaughter and were therefore surprised when the court found respondent guilty as charged. Although the state objected to the relevancy of this testimony on Imgrounds that it did not appear to address any of the claims raised in the application for post-conviction relief, the trial court allowed it and counsel explained in arguing his motion that the officer’s testimony would provide the court with “a sense of the ease .... because Ribert was there, Ribert knew the facts.” In counsel’s view, the officer’s testimony would thereby underscore for the court that respondent’s application did not raise simply “a nice technical error,” but was “based on facts that would support that he’s probably innocent of second degree murder.”

However, Detective Ribert’s subjective beliefs do not constitute compelling evidence of actual innocence which might support the granting of post-conviction relief. State v. Conway, 01-2808, p. 1 (La.4/12/02), 816 So.2d 290, 201 (assuming that claims of actual innocence not based on DNA evidence are cognizable in post-conviction proceedings, such a claim must involve new, material, noncumulative and conclusive evidence which undermines the prosecution’s entire case)(internal quotation marks and citation omitted). A police officer’s subjective views are not determinative of probable cause to arrest. State v. Kalie, 96-2650, p. 1 (La.9/19/97), 699 So.2d 879, 880 (“[T]he determination of reasonable grounds for an investigatory stop, or probable cause for an arrest, does not rest on the officer’s subjective beliefs or attitudes but turns on a completely objective evaluation of all of [the] circumstances known to the officer at the time of his challenged action.”) (citation omitted). Nor do they have any bearing on the purely objective inquiry under the Due Process Clause of whether the state has marshalled evidence sufficient to convince any rational trier of fact of the defendant’s guilt beyond a reasonable doubt. Cf. Jackson v. Virginia, 443 U.S. 307, 319, n. 13, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)(ra-tional trier of fact [ustandard does not “permit a court to make its own subjective determination of guilt or innocence”).

Accordingly, the judgments below are reversed, respondent’s conviction and sentence for second degree murder are reinstated, and this case is remanded to the district court for purposes of taking respondent into custody and remanding him to the penitentiary to serve the remainder of his life term.

RULINGS BELOW REVERSED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED FOR EXECUTION OF SENTENCE.

      . Judge Fred C. Sexton sitting ad hoc for Pascal F. Calogero, C J., recused.


source: Caselaw Access Project

author: JOHNSON, Justice. KNOLL, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Robert Glen COLEMAN.
    No. 2006-KA-0518.
    Supreme Court of Louisiana.
    Nov. 2, 2007.
    Rehearing Denied Jan. 7, 2008.

      Capital Appeals Project, Jelpi Pierre Pi-cou, Jr., Letty S. DiGiulio, for appellant.
    Charles C. Foti, Jr., Attorney General, Paul Carmouche, District Attorney, Catherine Marion Estopinal, Hugo A. Holland, Jr., Edwin Blewer, III, Lea R. Hall, Jr., Assistant District Attorneys, for appellee.
   JOHNSON, Justice.

liThe defendant now brings his direct appeal of his conviction and sentence to this Court pursuant to La. Const, art. 5, § 5 D raising 36 assignments of error. We find merit as to one of the assignments raised by the defendant for the reasons set forth more fully below. Therefore, we reverse and vacate the conviction and death sentence, and remand for a new trial.

PROCEDURAL HISTORY

On February 14, 2003, defendant Robert Glen Coleman was indicted by a grand jury for first degree murder of Julian L. Brandon, Jr., in violation of LSA-R.S. 14:30, and attempted first degree murder of Alice Brandon, in violation of LSA-R.S. 14:27 and LSA-R.S. 14:30. On January 21, 2005, the State filed an amended indictment to first degree murder of Julian L. Brandon, Jr., in violation of LSA-R.S. 14:30.

On February 17, 2005, the jury unanimously returned a verdict of guilty as | pcharged of first degree murder of Mr. Brandon. The penalty phase began the following day. On February 19, 2006, the jury returned a death verdict, finding all four aggravating circumstances urged by the State, namely that the offender was engaged in the perpetration or attempted perpetration of an armed robbery, LSA-C.Cr.P. art. 905.4(A)(1); that the victim was older than 65 years of age, LSA-C.Cr.P. art. 905.4(A)(10); that the offender created a risk of death or great bodily harm to more than one person, LSA-C.Cr.P. art. 905.4(A)(4); and that the offender had previously been convicted of armed robbery, LSA-C.Cr.P. art. 905.4(A)(3). On April 6, 2005, the judge denied defendant’s motion for new trial, and assigned reasons. Thereafter, the judge imposed the sentence of death in accordance with the jury’s verdict.

LAW AND DISCUSSION

Defendant claims that the trial court erred in ruling that the defense failed to establish a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, defendant points to peremptory challenges exercised by the State against African-American jurors: Mason Miller, Sylvia Lampkin, Eddie Jordan, Daphne Smallwood, and Kim Ross.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) the Supreme Court held that an equal protection violation occurs when a party exercises a peremptory challenge to exclude a prospective juror on the basis of race. According to Batson, a defendant must establish a prima facie case of discrimination by showing facts and relevant circumstances which raise an inference that the prosecutor used his peremptory challenges to exclude potential jurors on account of brace. The burden then shifts to the State to come forward with a race-neutral explanation. If a race-neutral explanation is tendered, the trial court then must decide, in step three, whether the defendant has proven purposeful racial discrimination. State v. Harris, 01-0408 (La.6/21/02), 820 So.2d 471; Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (citations omitted); State v. Collier, 553 So.2d 815, 818 (La.1989); Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

In this case, the defendant based his Batson challenge on the fact that the prosecution used six of its eight peremptory challenges to strike African-American prospective jurors. The defendant alleged that the prosecution intentionally struck these African-American prospective jurors solely on the basis of their race. In response to the defendant’s assertion, the prosecution argued that a “generic statement” as to how many black and white prospective jurors were stricken does not satisfy the first prong of Batson’s three step analysis: a prima facie showing of discrimination. Nevertheless, to counter defendant’s argument that there was sufficient evidence to establish a prima facie case of discrimination, the prosecution proffered an explanation for the exercise of each peremptory strike.

At the close of argument, the trial court found that the defendant failed to make a prima facie showing of discrimination so as to satisfy the first step of the Batson analysis. Although the court opined that the lack of a prima facie showing did not require it to rule on the reasons proffered by the prosecution for the exercise of its challenges, the court nevertheless proceeded to rule that the prosecution offered race neutral reasons for the exercise of each of its challenges.

Ordinarily, a trial court’s conclusion that the defendant failed to satisfy his or her initial burden of establishing a pri-ma facie case of discrimination would end the [¿inquiry. State v. Allen, 03-2418, p. 17-19 (La.6/29/05), 913 So.2d 788, 802-803. However, in this case, the trial court accepted the prosecutor’s proffered race neutral reasons for the exercise of the peremptory strikes, and ruled on them, ultimately finding “no Batson issue.” Under these circumstances, we find that the rule announced in Hernandez v. New York, supra., and adopted in State v. Green, 94-0887, p.25 (La.5/22/95), 655 So.2d 272, 288, applies: “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.”

Our review of the record convinces us that the State’s proffered reasons for the exercise of its peremptory challenges merit careful scrutiny, especially as regards prospective juror Mason Miller.

The State and the Defense both used the State’s power point presentation to allow prospective jurors to explain their position on the death penalty. The State’s power point presented the following choices:

(A-l)-Death is proper in all cases of first degree murder.
(B-2)Death is the proper penalty, unless something convinces you to give life.
(C-3) Life is the proper penalty, unless something convinces you to give the death penalty.
(D-4)-Life, but in exceptional circumstances you would vote for the death penalty.
(E-5)Life in all cases; would never vote for the death penalty.

The State and the Defense used both AE, and 1-5 interchangeably in the power point presentation.

Mason Miller

Mason Miller, an African-American male, was tentatively accepted as a juror I shut subsequently dismissed when the State used its third peremptory challenge to back strike him. In defending its use of the peremptory challenge to exclude the prospective juror, the State offered:

The State did that because it needed to check information concerning Mr. Miller based on his employment. He advised he was a captain with the fire department in Bossier City. Mr. Miller has filed a lawsuit against the city alleging institutional discrimination. Defense counsel voir dired on the race issue. There is a black defendant in this case. There are white victims. He said if he was 100 percent on the evidence, the death penalty was okay. With his body language, the State believes he is way passed(sic) where he self-described himself as a C but is actually a D or number four.

After entertaining the State’s explanation, the trial court reiterated that the defendant had failed to satisfy the first step of the three-step Batson analysis, i.e., a prima facie showing of discrimination. However, the court then proceeded to rule on the State’s articulated reasons for the exclusion of this prospective juror.

To be facially valid under Batson, the State’s articulated reasons need not be persuasive or even plausible. Unless a discriminatory intent is inherent in the State’s explanation, the reason offered will be deemed race-neutral. Purkett v. Elem, 514 U.S. at 767-768, 115 S.Ct. at 1770-1771. In this case, the trial court accepted the State’s articulated reasons as racially neutral and overruled the Batson objection, finding “no problem” with the articulated reasons for striking Miller. We disagree with this conclusion, finding that the State’s proffered explanation is not facially race-neutral.

A review of the reasons articulated in the record reveals that the State initially rested its challenge of Miller on a lawsuit that it apparently learned about independently. According to the State, Miller had filed a lawsuit against Bossier City | (¡alleging “institutional discrimination.” The prosecutor did not elaborate or attempt to explain what this involved, or what was meant by “institutional discrimination.” As a general proposition, a prospective juror’s preoccupation with ongoing litigation has been deemed a race-neutral explanation supporting a peremptory strike. United States v. Copeland, 321 F.3d 582, 599-600 (6th Cir.2003) (Hispanic juror involved in a personal injury lawsuit requiring attendance at settlement conference during trial excused without violating Batson); Harper v. State, 91-0699 (Miss.4/7/94), 635 So.2d 864, 867-69 (Fact that African-American prospective juror may have been hostile to the state due to her pending sex discrimination lawsuit was race-neutral reason supporting peremptory strike).

However, in this case, there was no attempt by the State to explain how bias might operate from the mere existence of this lawsuit. Miller was never questioned about the impact the lawsuit would have on his ability to serve as a juror. Moreover, the prosecutor’s very next statement following the mention of the “institutional discrimination” lawsuit interjected the issue of race, undercutting the acceptable “ongoing litigation” explanation and suggesting that the reasons for striking Miller were in fact race-related. The prosecutor stated: “Defense counsel voir dired on the race issue. There is a black defendant in this case. There are white victims.’-’ The prosecutor’s statement explicitly places race at issue, without any attempt to explain or justify why race might be a relevant consideration in this instance.

The only other reason proffered by the State for striking Miller was his body language as he responded to questions probing his attitude toward capital punishment. Body language has been held to constitute a valid, race-neutral basis for defeating a Batson claim. United States v. Bentley-Smith, 2 F.3d 1368, 1374 (5th Cir.1993); State v. Seals, 95-0305, p. 8 (La.11/25/96), 684 So.2d 368, 274-75, reversed on other j7grounds, 00-2738 (La.10/25/02), 831 So.2d 828 (noting reasons found acceptable include body language, lack of eye contact, juror inattention and juror “not too bright”); State v. Aubrey, 609 So.2d 1183, 1187 (La.App. 3 Cir.1992) (venire woman maintained excessive eye contact with one of the defendants). However, while Miller’s voir dire responses, amplified by the State’s perception of his body language, tended to favor life imprisonment over the death penalty, this explanation for striking Miller, when examined in the context of the State’s previous overt reference to race, cannot compensate for the specific racial reference. Once an inappropriate explanation invoking racial considerations is made, a subsequent, valid reason for exercising the peremptory challenge cannot purge the racial taint.

In this case, the State explicitly placed race at issue when it stated that “defense counsel voir dired on the race issue. There is a black defendant in this case. There are white victims.” By specifically referencing the race of the defendant and the victim, the prosecutor clearly and unmistakably indicated that the decision to strike Miller was motivated by this prospective juror’s race. Yet, there was no further explanation as to why race might be a relevant consideration in this case. This court is simply left to speculate as to what was meant by the oblique reference to an “institutional discrimination” lawsuit and the specific reference to race. As the U.S. Supreme Court recently confirmed:

[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are at issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.

Miller-El v. Dretke, 545 U.S. 231, 251-252, 125 S.Ct. 2317, 2331-2332,162 L.Ed.2d 196 (2005) (citations omitted); See also: State v. Harris, 01-0408 (La.6/21/02), 820 So.2d 471 (State consciously took color into account in excluding a prospective juror because he was the “only black male on the panel with no children”).

Here, the explicit interjection of race, without further explanation, renders implausible any explanation other than that the decision to strike this prospective juror was not race-neutral, but was based specifically on the juror’s race, in violation of the fundamental precepts of Batson and its progeny.

We find that the State consciously took race into account in its exclusion of Mr. Miller, thereby violating defendant’s constitutional right to equal protection. Striking a single juror can constitute an equal protection violation. State v. Collier, 553 So.2d 815, 819 (La.1989); United States v. Clemons, 843 F.2d 741 (3rd Cir. 1988) (striking a single black juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks); United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986) (“the striking of one black juror for a racial reason violates the Equal Protection Clause”); Fleming v. Kemp, 794 F.2d 1478, 1483 (11th Cir.1986) (“nothing in Batson compels the ... conclusion that constitutional guarantees are never abridged if all black jurors but one or two are struck because of their race”). A juror is entitled to be evaluated for service on a jury without reference to race. That fundamental guarantee is violated when the State consciously takes race into account in excluding a juror from service. In State v. Harris, supra, the inappropriate invocation of race in excusing one juror results in the exclusion of one juror too many. While, ultimately, there might exist some rational basis for the State’s decision to strike Mr. Miller, no such reason has been proffered in this case, and we are left to speculate as to a motive on the State’s part that might pass Batson scrutiny.

\ CONCLUSION

After careful review of the record, we find that the State’s articulated reasons with respect to the peremptory strike of prospective juror, Mason Miller was entirely pretextual and inadequate. We con-elude that the manner in which the State exercised its peremptory challenges in this case, based on race, resulted in a violation of defendant’s constitutional rights and find this error raises serious federal constitutional equal protection issues affecting the rights of both the defendant and the excused venire-member. This error is a structural one, affecting the framework within which the trial proceeded. Thus, we find that the defendant is entitled to a new trial. As we' find this error alone requires a reversal of the conviction and sentence, we pretermit the remaining assignments of error.

DECREE

For the reasons assigned herein, we reverse the defendant’s conviction and death sentence, and remand for a new trial.

REVERSED AND REMANDED FOR NEW TRIAL.

KIMBALL and VICTORY, JJ., dissent for reasons assigned by KNOLL.

KNOLL, J., dissents and assigns reasons.

KNOLL, Justice,

dissenting.

_JjThe majority reverses and vacates the conviction and death sentence of defendant, Robert Glen Coleman, for the first-degree murder of Julian L. Brandon, a 70-year-old retired Baptist preacher, while in perpetration of an armed robbery, finding the district court erred in ruling that the defense failed to establish a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), specifically as to potential juror Mason Miller. For the following reasons, I respectfully dissent.

As discussed by the majority, it is apparent that the State’s implication of race in its reasons for striking Mason Miller has, in the majority’s view, tainted the State’s otherwise race-neutral reasons for the strike. In response to the defendant’s Batson challenge, the State explained:

I think it’s very clear from the State’s challenges for cause all the way through this process as well as the State’s challenges peremptorily, they were used in regard to those folks who especially with cause regardless of race, we’re looking to those who could follow the law.
The State wasn’t just challenging for cause black people. The State was challenging white people and black people that it believed couldn’t follow the law for whatever reason. The State was not acting in any racially motivated way.

The State’s first peremptory challenge was exercised to strike a white female due to her proclivity to believe defendants, her legal experience as an attorney with defense counsel, and because she did not care for the death penalty and thought it 12should be abolished. The Státe’s third challenge was exercised against Mason Miller, a black male, with the State explaining:

The State used a back strike against Mr. Miller. The State did that because it needed to check information concerning Mr. Miller based on his employment. He advised he was a captain with the fire department in Bossier City. Mr. Miller has filed a lawsuit against the city alleging institutional discrimination. Defense counsel voir dired on the race issue. There is a black defendant in this case. There are white victims. He said if he was 100 percent on the evidence, the death penalty may be okay. With his body language, the State believes he is way passed where he self-described himself as a C but is actually a D or number four.

“Once the defendant makes a prima fa-cie showing, the burden shifts to the State to come forward with a neutral explanation for challenging ... jurors” within an arguably targeted class, and the prosecutor “must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenge.” Batson, 476 U.S. at 97-98, 106 S.Ct. 1712. “But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.” Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). In this case, the State reasoned, in pertinent part, to which the majority takes exception:

Mr. Miller has filed a lawsuit against the city alleging institutional discrimination. Defense counsel voir dired on the race issue. There is a black defendant in this case. There are white victims.

As apparent from the State’s reasoning, the State was concerned with this juror’s sensitivity to discrimination, as evident in his filing a discrimination suit against his employer. The interjection of race on the State’s part was to illustrate its concern Uwith the potential impartiality or neutrality of this juror, not as to its racial motivation for striking the juror.

Neither Batson nor Miller-El require the State’s reasons to be perfect, just that they give a clear and reasonably specific explanation for exercising the challenge. In this case, the State’s reasons, in my view, do provide a clear and reasonably specific explanation, ie., the sensitivity of this juror to discrimination, which the district court, in its great discretion, found plausible. Moreover, even the defendant failed to raise the issue now raised by this Court, even though Miller was included in the general Batson claim, which further indicates to me the plausibility of the State’s reason.

The majority’s rejection of the State’s explanation in this case, in my view, raises the bar from a clear and reasonably specific explanation to a perfect answer in order to uphold a race-neutral reason. To split hairs in determining if reasonably clear can be clearer is going to the extreme and is not required. This issue is already very litigious and would effectively do away with a reasonably clear explanation to require a perfect answer. In my view, this approach is going far afield from what is required to uphold a race-neutral explanation and would effectively render any otherwise valid race-neutral reason espoused by either side constitutionally invalid by the mere mention of race.

Further, the State clearly had other longstanding race-neutral reasons supporting its striking Mr. Miller. A prospective juror’s preoccupation with ongoing litigation has been deemed a race-neutral explanation for supporting a peremptory strike, in this case Mr. Miller’s on-going discrimination suit against his employer. See Harper v. State, 91-0699 (Miss.4/7/94), 635 So.2d 864, 867-69 (African-American prospective juror may have been hostile to the state due to her pending sex discrimination lawsuit; peremptory challenge supported by race-neutral reason). Body language has also been held to constitute a valid, race-neutral basis defeating a Batson claim, and Mr. Miller’s voir dire responses, amplified by the State’s perception of his body language, tended to favor life imprisonment over the death penalty. See State v. Seals, 95-0305, p. 8 (La.11/25/96), 684 So.2d 368, 374-75, rev’d on other grounds, 00-2738 (La.10/25/02), 831 So.2d 828 (noting reasons found acceptable include body language, lack of eye contact, the failure to make eye contact, juror inattention, and juror “not too bright”).

After reviewing the entire voir dire transcript, I have given careful scrutiny to the voir dire of prospective juror Mr. Miller, and because I agree with the district court that the State did not strike Mr. Miller on the basis of race, I would defer to the district court’s sound judgment.

      . La. Const, art. 5, § 5(D) provides in pertinent part: "... a case shall be appealable to the Supreme Court if ... (2) the defendant has been convicted of a capital offense and a penalty of death actually has been imposed.”

      . Also, in panel five was a prospective juror named Erica Ross, an African American. There is some confusion in the transcript, when reference is made to "Ms. Ross”. It is unclear whether the reference is to Kimberly or Erica Ross.

      . A review of the voir dire of the entire panel from which Miller was struck indicates that defense counsel did not voir dire on race.

      . Admittedly, a review of the voir dire of the entire panels from which Mr. Miller was struck indicates that defense counsel did not pose specific questions to either of Mr. Miller’s panels in either the first or second round of voir dire with respect to the race of the instant defendant vis-a-vis the race of the victims. However, the first panel in the second round of voir dire to which Mr. Miller was a member did witness a verbal confrontation between defense counsel, Mr. Gold, and a prospective juror, Holly Jacobs, in which Mr. Gold shouted at Jacobs and called her a racist. The judge promptly excused the panel and reprimanded defense counsel, who in the judge’s words levied a charge of racism against a prospective juror that defense counsel did not even know in a courtroom in front of all the other fellow jurors. Although defense counsel did apologize, the issue of race was brought to the forefront in this voir dire in a powerful way by defense counsel's interaction with Ms. Jacobs.

      . In further support of the State’s position in this case, I take judicial notice of the allegations set forth by Mr. Miller against his employer in his petition filed in Docket No. 108233 in the 26th JDC for the Parish of Bossier on January 25, 2002, which arise from claims of discrimination against Mr. Miller and fellow African-American employees on the basis of race.


text:
    STATE of Louisiana v. Davon JACKSON.
    No. 2007-KK-2392.
    Supreme Court of Louisiana.
    Dec. 12, 2007.
   In re Jackson, Davon; — Defendant; Applying for Rehearing of this Court’s action dated December 12, 2007; Parish of Orleans, Criminal District Court Div. E, No. 435-878; to the Court of Appeal, Fourth Circuit, No. 2007-K-1587.

Rehearing denied.

KIMBALL, J., would grant rehearing.


text:
    STATE of Louisiana v. Davon JACKSON.
    No. 2007-KK-2392.
    Supreme Court of Louisiana.
    Dec. 12, 2007.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 435-878; to the Court of Appeal, Fourth Circuit, No. 2007-K-1587.

Writ granted; District Court order reversed. The State is allowed to introduce the letters as part of its case in chief.


text:
    STATE of Louisiana v. Tracy YOUNG.
    No. 2007-KK-1974.
    Supreme Court of Louisiana.
    Dec. 12, 2007.
   In re Young, Tracy; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 10-06-0811; to the Court of Appeal, First Circuit, No. 2007 KW 1725.

Denied.

JOHNSON, J., would grant.


author: CALOGERO, C.J.,

text:
    MARSHALL INVESTMENTS CORPORATION v. CARBONE PROPERTIES OF AUDUBON, LLC.
    No. 2007-C-2370.
    Supreme Court of Louisiana.
    Dec. 12, 2007.
   In re Carbone Properties of Audubon LLC; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2007-12488; to the Court of Appeal, Fourth Circuit, No. 2007-CA-1505.

Denied.

CALOGERO, C.J.,

dissents. I would stay the proceedings below, grant the writ, and docket it for briefing, oral argument, and a considered opinion.


text:
    Elmira PRESTON, Howard Preston, Rose Lefrance Preston, Sheryl Preston, Deborah Mazie, Anthony Preston, Leonard Preston, Darlene Preston, Cynthia Preston, Angela Nelson, Wand Preston, Bryan Preston, et al. v. TENET HEALTHSYSTEMS MEMORIAL MEDICAL CENTER, INC. d/b/a Memorial Medical Center.
    No. 2007-CC-0714.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Preston, Bryan; Preston, Leonard; Preston, Cynthia; Preston, Wanda; Preston, Elmira; Mazie, Deborah; Preston, Howard; Preston, Rose Lefrance; Preston, Sheryl; Preston, Anthony; Preston, Darlene; Nelson, Angela; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2005-11709; to the Court of Appeal, Fourth Circuit, No. 2006-C-1584.

Granted. The case is remanded to the court of appeal for reconsideration in light of this Court’s decision in LaCoste v. Pendleton Methodist Hospital, L.L.C., 07-0008 c/w 07-0016 (La.9/5/07), 966 So.2d 519.

KNOLL, J., would deny.

WEIMER, J., would deny.


text:
    STATE ex rel. Freddie WALKER v. STATE of Louisiana.
    No. 2007-KH-1963.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Freddie Walker; — Defendant(s); Applying for Reconsideration of this Court’s order dated October 26, 2007; Parish of Orleans, Criminal District Court Div. D, No. 415-512; to the Court of Appeal, Fourth Circuit, No. 2007-K-0811.

Reconsideration denied. Moot. The district court has acted.


text:
    STATE of Louisiana v. Kendrich THOMAS.
    No. 2007-KK-2073.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Thomas, Kendrich; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 462-420, 462-419; to the Court of Appeal, Fourth Circuit, No. 2007-K-0787.

Not considered. Not timely filed. See S.Ct. Rule X, Section 5(a).


text:
    LAMBETH HOUSE, INC. v. BLITCH-KNEVEL ARCHITECTS, INC., et al.
    No. 2007-CC-2092.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re TIG Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 03-14158; to the Court of Appeal, Fourth Circuit, No. 2007-C-0280.

Not considered, not timely filed. See Supreme Court Rule X, Section 5.


text:
    IRRIGATION MART, INC. v. Michael GRAY d/b/a Plantasia f/k/a Clearwater Irrigation.
    No. 2007-C-2108.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Gray, Michael d/b/a Plantasia f/k/a Clearwater Irrigation; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lincoln, City Court of Ru-sten, No. 33784; to the Court of Appeal, Second Circuit, No. 42,442-CA.

Not considered, not timely filed.


text:
    John B. EDGAR, III, et al. v. Charles WERCHAN, et al.
    No. 2007-CC-1610.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Peavy, Sandra L.; — Louisiana Landscape and Erosion Control Inc.; La-grone, Norma P.; Lagrone, Diane M.; La-grone, Johnny; Lagrone, James; — Defendant; Applying for Reconsideration of this Court’s action dated November 9, 2007, Parish of Iberville, 18th Judicial District Court Div. A, Nos. 30,914, 31,016, 54,072, 54,329; to the Court of Appeal, First Circuit, No. 2007 CW 0611.

Not considered. See Louisiana Supreme Court Rule IX, Section 6.


text:
    STATE ex rel. Wade P. JACKSON v. STATE of Louisiana.
    No. 2007-KH-0677.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Jackson, Wade P.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 06-WCR-389; to the Court of Appeal, First Circuit, No. 2006 KW 2521.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. George M. PORTER v. STATE of Louisiana.
    No. 2007-KH-0678.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Porter, George M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 391-217; to the Court of Appeal, Fourth Circuit, No. 2007-K-0084.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Solomon WASHINGTON v. STATE of Louisiana.
    No. 2007-KH-0679.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Washington, Solomon; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 302559; to the Court of Appeal, First Circuit, No. 2007 KW 0135.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Amando BARROSO v. STATE of Louisiana.
    No. 2007-KH-0680.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Barroso, Amando; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 97-7409; to the Court of Appeal, Fifth Circuit, No. 07-KH-129.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex. rel. Melinie v. State, 93-1380 (La. 1/12/ 96), 665 So.2d 1172; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Thaddeus RUBIT v. STATE of Louisiana.
    No. 2007-KH-0681.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Rubit, Thaddeus; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, Nos. 17606-96, 2334-97; to the Court of Appeal, Third Circuit, No. KH 06-01475.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex. rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Jorge RODRIGUEZ v. STATE of Louisiana.
    No. 2007-KH-0683.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Rodriguez, Jorge; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 287-297; to the Court of Appeal, Fourth Circuit, No. 2007-K-0100.

Denied.


text:
    STATE ex rel. Christopher LAMBERT v. STATE of Louisiana.
    No. 2007-KH-0684.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Lambert, Christopher; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 396-096; to the Court of Appeal, Fourth Circuit, No. 2006-K-1163.

Denied.


text:
    STATE ex rel. Curtis J. DARGIN v. STATE of Louisiana.
    No. 2007-KH-0685.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Dargin, Curtis J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 01-K-4313-D; to the Court of Appeal, Third Circuit, No. KH 07-00004.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Robert NORWOOD v. STATE of Louisiana.
    No. 2007-KH-0686.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Norwood, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 279-452.

Denied. Untimely, not cognizable, and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; cf. La. C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Terence WILLIAMS v. STATE of Louisiana.
    No. 2007-KH-0696.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Williams, Terence; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 02-0004; to the Court of Appeal, Fifth Circuit, No. 07-KH-134.

Denied. State ex. rel. Bernard v. Cr. D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175; Denied. See State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    STATE ex rel. Jerry MOORE v. STATE of Louisiana.
    No. 2007-KH-0697.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Moore, Jerry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, Nos. 331037, 330378-1; to the Court of Appeal, First Circuit, No. 2006 KW 2458.

Denied.


text:
    STATE ex rel. Damon CAMEL v. STATE of Louisiana.
    No. 2007-KH-0700.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Camel, Damon; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 8-03-714; to the Court of Appeal, First Circuit, No. 2006 KA 1308.

Denied.


text:
    STATE ex rel. Willard BRANDENBURG v. STATE of Louisiana.
    No. 2007-KH-0701.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Brandenburg, Willard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. A, No. CR-06-4480 A; to the Court of Appeal, Third Circuit, No. KH 07-00026.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Edward J. BOURGEOIS v. STATE of Louisiana.
    No. 2007-KH-0703.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Bourgeois, Edward J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 98-0313; to the Court of Appeal, Fourth Circuit, No. 2006-K-1316.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Johnny FOLEY v. STATE of Louisiana.
    No. 2007-KH-0705.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Foley, Johnny; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 82-3368; to the Court of Appeal, Fifth Circuit, No. 06-KH-480.

Denied. Untimely, not cognizable, and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex. rel. Melinie v. State, 93-1380 (La.1/12/ 96), 665 So.2d 1172:


text:
    STATE ex rel. Alvin MEAD v. STATE of Louisiana.
    No. 2007-KH-0706.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Mead, Alvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 395-920; to the Court of Appeal, Fourth Circuit, No. 2007-K-0178.

Denied. Untimely, not cognizable, and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex. rel. Melinie v. State, 93-1380 (La.1/12/ 96), 665 So.2d 1172; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Gordon L. BRADFORD v. STATE of Louisiana.
    No. 2007-KH-0707.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Bradford, Gordon L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. H, No. 46721; to the Court of Appeal, Third Circuit, No. KH 06-01631.

Denied.


text:
    STATE ex rel. Eddie JOHNSON v. STATE of Louisiana.
    No. 2007-KH-0750.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Johnson, Eddie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 327-266; to the Court of Appeal, Fourth Circuit, No. 2007-K-0064.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Terry BARNES v. STATE of Louisiana.
    No. 2007-KH-0752.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Barnes, Terry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. A, Nos. 256,718, 257,062; to the Court of Appeal, Third Circuit, No. KH 07-00051.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Merle P. KEENE v. STATE of Louisiana.
    No. 2007-KH-0755.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Keene, Merle P.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 239,102; to the Court of Appeal, Second Circuit, No. 42331-KH.

Denied.


text:
    STATE ex rel. Huey RICHARDS v. STATE of Louisiana.
    No. 2007-KO-1129.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Richards, Huey; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 277,102; to the Court of Appeal, Third Circuit, No. KA 06-1553.

Denied.


text:
    STATE of Louisiana v. Terry Glen HILL.
    No. 2007-KO-1209.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Hill, Terry Glen; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. D, No. 244,356; to the Court of Appeal, Second Circuit, No. 42,025-KA.

Denied.


text:
    STATE of Louisiana v. Montreal EMERY.
    No. 2007-K-1215.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Emery, Montreal; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 05-5-000114; to the Court of Appeal, First Circuit, No. 2006 KA 2293.

Denied.


text:
    STATE of Louisiana v. John DUNCAN.
    No. 2007-K-1223.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Duncan, John; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 450-320; to the Court of Appeal, Fourth Circuit, No(s). 2007-K-0317, 2006-KA-1029.

Denied.


text:
    STATE of Louisiana v. Labontay Rene YOUNGBLOOD.
    No. 2007-K-1226.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Youngblood, Labontay Rene; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 243711; to the Court of Appeal, Second Circuit, No. 41,976-KA.

Denied.


text:
    STATE of Louisiana v. James Earl WHITE, Jr.
    No. 2007-KO-1242.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re White, James Earl Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. B, No. 04 CR5 90267; to the Court of Appeal, First Circuit, No. 2006 KA 2229.

Denied.


text:
    STATE of Louisiana v. Jennifer Renee ROBERSON a/k/a Jennifer Robertson a/k/a Jennifer Thomas.
    No. 2007-KO-1243.
    Supreme Court of Louisiana.

      Dec. 14, 2007.
   In re Roberson, Jennifer Renee a/k/a Robertson, Jennifer a/k/a Thomas, Jennifer; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rap-ides, 9th Judicial District Court Div. A, No. 275397; to the Court of Appeal, Third Circuit, No. KA 06-1568.

Denied.


text:
    STATE of Louisiana v. Darrius WILBON.
    No. 2007-KK-1249.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Wilbon, Darrius; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 450-286; to the Court of Appeal, Fourth Circuit, No. 2007-K-0266.

Denied.


text:
    STATE of Louisiana v. Kenneth Rory WILLIAMS.
    No. 2007-KO-1250.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Williams, Kenneth Rory; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 17,249; to the Court of Appeal, First Circuit, No. 2006 KA 1541.

Denied..


text:
    STATE of Louisiana v. Christopher KING.
    No. 2007-KO-1263.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re King, Christopher; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 378,070; to the Court of Appeal, First Circuit, No. 2006 KA 1994.

Denied.


text:
    STATE of Louisiana v. Noel E. DAUZART.
    No. 2007-K-1269.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Dauzart, Noel E.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 96-7000; to the Court of Appeal, Fifth Circuit, No. 97-KA-15.

Denied.

CALOGERO, C.J., recused.


text:
    STATE ex rel. Thaddeaus A. LONG v. STATE of Louisiana.
    No. 2007-OK-1295.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Long, Thaddeaus A.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. E, Nos. 502790, 103710, 105288, 106307, 107416, 109768, 109014, 97059, 111111; to the Court of Appeal, First Circuit, No. 2007 KW 0598.

Denied.


text:
    STATE of Louisiana v. Jacob W. TIDWELL.
    No. 2007-KK-1594.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Tidwell, Jacob W.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. A, No. 85716; to the Court of Appeal, First Circuit, No. 2007 KW 0769.

Denied.

CALOGERO, C.J., would grant the writ.

JOHNSON, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    William H. BAKER, Jr. v. STANLEY EVANS LOGGING and American Interstate Insurance Company.
    No. 2007-C-1817.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Baker, William H. Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 1W, Nos. 03-08966, 04-01776, 04-05928,; to the Court of Appeal, Second Circuit, No(s). 42,158-WCA, 42,157-WCA, 42,156-WCA.

Denied.


text:
    Jerry M. MCCAIN, Sr. and Margaret B. McCain, Individually and on Behalf of Their Minor Children Jerry M. McCain, Jr. and Colt E. McCain v. Sara A. HOWELL, Louisiana Indemnity Company, State of Louisiana Through Department of Transportation and Development and Allstate Insurance Company.
    No. 2007-C-2027.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Louisiana, State of; Transportation and Development, Department of;— Defendant(s); Applying for Writ of Certio-rari and/or Review, Parish of St. Helena, 21st Judicial District Court Div. B, No. 14142; to the Court of Appeal, First Circuit, No. 2006 CA 1830.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.

WEIMER, J., would grant.


text:
    Nick J. BRUNO v. Sarah C. BRUNO.
    No. 2007-C-2040.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Brnno, Nick J.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 9103143; to the Court of Appeal, First Circuit, No. 2006 CA 2302.

Denied.


text:
    Sadie Mae TERRANCE, et al. v. The DOW CHEMICAL COMPANY, et al.
    No. 2007-C-2042.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Exxon Mobil Corporation; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 504016; to the Court of Appeal, First Circuit, No. 2006 CA 2234.

Denied.

VICTORY, J., would grant.


text:
    John Henry BROWN v. Gerald L. MURTAGH, M.D.
    No. 2007-CC-2043.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Brown, John Henry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 548924; to the Court of Appeal, First Circuit, No. 2007 CW 1129.

Denied.


text:
    Cyndee CARUSO v. EQUITY OFFICE MANAGEMENT, L.L.C., Schindler Elevator Corporation, and La-New Orleans, L.L.C.
    No. 2007-CC-2046.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Caruso, Cyndee; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 598-919; to the Court of Appeal, Fifth Circuit, No. 07-C-683.

Denied.


text:
    The TRAVELERS INDEMNITY COMPANY, As Subrogee of/and Slidell Memorial Hospital, A Political Subdivision of the State of Louisiana v. DAVITA, INC, Dialysis Liquidators of Slidell, Inc., Renal Treatment Centers-Southeast, LP and GE Osmonics, Inc.
    No. 2007-CC-2047.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re DaVita Inc. et al.; Renal Treatment Centers-Southeast LP; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 2004-11384; to the Court of Appeal, First Circuit, No. 2007 CW 1151.

Denied.


text:
    Mary STERLING and Jerry Sterling v. NEW ORLEANS CENTRE MALL.
    No. 2007-C-2048.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Sterling, Mary et al.; Sterling, Jerry; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2005-4395; to the Court of Appeal, Fourth Circuit, No. 2007-CA-0455.

Denied.


text:
    Rene L. BROUSSARD v. Alice Joyce VOORHIES, David Voorhies, State Farm Mutual Insurance Company, and Southern Farm Bureau Insurance Company.
    No. 2007-C-2052.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Broussard, Rene L.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. E, No. 108,408; to the Court of Appeal, First Circuit, No. 2006 CA 2306.

Denied.


text:
    In re MEDICAL REVIEW PANEL OF Iris Hurst DAVIS, et al.
    No. 2007-CC-2054.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Davis, Iris Hurst; Davis, Charles; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 549,134; to the Court of Appeal, First Circuit, No. 2007 CW 0856.

Denied.

CALOGERO, C.J., would grant.

JOHNSON, J., would grant.


text:
    Stacey HOLLEY and Patrick Holley v. TOTAL REHAB OF BATON ROUGE, LLC, Sullen Cloudet, P.T., and J. Gregory Ward, M.D.
    No. 2007-C-2062.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Holley, Stacey; Holley, Patrick;— Plaintiff(s); Applying for Writ of Certiora-ri and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 516,825; to the Court of Appeal, First Circuit, No. 2006 CA 2146.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Michael H. CECIL, et al.
    No. 2007-C-2063.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re State of Louisiana et al.; Transportation and Development Dept, of;— Plaintiff(s); Applying for Writ of Certiora-ri and/or Review, Parish of Desoto, 11th Judicial District Court Div. B, No. 66,055; to the Court of Appeal, Second Circuit, No. 42,433-CA.

Denied.

TRAYLOR, J., would grant the writ.


text:
    GREENGROVE MISSIONARY BAPTIST CHURCH v. Lawrence W. COX and Sue Cox.
    No. 2007-C-2064.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Greengrove Missionary Baptist Church; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of More-house, 4th Judicial District Court Div. G, No. 2005-289; to the Court of Appeal, Second Circuit, No. CA 07-42418.

Denied.


text:
    Robert A. BARNETT, et al. v. Candace WATKINS, et al.
    No. 2007-C-2066.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Barnett, Robert A. et al.; Barnett, Lisa Z.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 2005-13238; to the Court of Appeal, First Circuit, No. 2006 CA 2442.

Denied.


text:
    Dorothy RIDDLE v. Gaylon D. SIMMONS.
    No. 2007-C-2068.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Riddle, Dorothy; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 51393; to the Court of Appeal, Second Circuit, No. 42,501-CA.

Denied.


text:
    Earl CONNER, et al. v. A.O. SMITH CORPORATION, et al.
    No. 2007-CC-2071.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Deloro Stellite L.P.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2004-10099; to the Court of Appeal, Fourth Circuit, No. 2007-C-0812.

Denied.


text:
    Keith BABINEAUX, et al. v. A.O. SMITH CORPORATION, et al.
    No. 2007-CC-2072.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Nichols Wire Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2004-10097; to the Court of Appeal, Fourth Circuit, No. 2007-C-0817.

Denied.


text:
    Lionel ROCH v. ACCENT CONSTRUCTION CO.
    No. 2007-C-2102.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Roch, Lionel; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 00-10921; to the Court of Appeal, Fourth Circuit, No. 2007-CA-0051.

Denied.


text:
    STATE of Louisiana v. Donald S. WILLIAMS.
    No. 2007-KK-2111.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Williams, Donald S.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 07-06-0548; to the Court of Appeal, First Circuit, No. 2007 KW 1771.

Denied.


text:
    STATE ex rel. John Freeman WILLIAMS v. STATE of Louisiana.
    No. 2007-KH-2269.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Williams, John Freeman; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 495177; to the Court of Appeal, First Circuit, No. 2007 KW 1572.

Denied. The district court has scheduled relator’s motion for a hearing.


text:
    STATE ex rel. Isiah LANG III v. STATE of Louisiana.
    No. 2007-KH-2278.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Lang, Isiah, III; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 05-07-0663; to the Court of Appeal, First Circuit, No. 2007-KW-1783.

Denied. Moot.


text:
    Kathy Bridges SUAZO v. Hermino SUAZO Kathy Bridges Suazo v. Hermino Suazo.
    No. 2007-CJ-2291.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Suazo, Kathy Bridges; Ducote, Richard; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, Nos. 102,038, 102,038; to the Court of Appeal, First Circuit, No(s). 2007 CW 1428, 2007 CU 0795.

Denied. Motion denied as moot.


text:
    Glenn LIPSEY v. Jay DARDENNE, La. Secretary of State.
    No. 2007-C-2305.
    Supreme Court of Louisiana.
    Dec. 14, 2007.
   In re Lipsey, Glenn; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. B, No. 43,042; to the Court of Appeal, Third Circuit, No. 07-1487.

Denied.


author: COOKS, Judge. PICKETT, J., EZELL, J.

text:
    Susan ARRINGTON, et al. v. GALEN-MED, INC., et al.
    No. 04-1235.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 2007.
    Writ Denied Dec. 7, 2007.
    Oliver Jackson Schrumpt, Schrumpt & Schrumpt, Sulphur, LA, for Plaintiffs/Appellants: Susan, Noelle and Laura Arring-ton.
    Michael Keith Prudhomme, Thomas P. Leblanc, Lake Charles, LA, for Secondary Defendant/Appellant: Louisiana Patient’s Compensation Fund Oversight Board.
    Charles C. Foti, Jr., Attorney General, J. Elliott Baker, Special Assistant Attorney General, Covington, LA, for Defendant/Appellee/Cross-Appellant: State of Louisiana.
    Benjamin W. Mount, Bergstedt & Mount, Lake Charles, LA, for Defendants/Appellees/Cross-Appellant: Galen-Med, Inc., formerly d/b/a Lake Area Medical Center.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, ELIZABETH A. PICKETT, BILLY H. EZELL, and JAMES T. GENOVESE.
   COOKS, Judge.

PROCEDURAL HISTORY

Liu Arrington v. ER Physicians Group, APMC, 04-1235 (La.App. 3 Cir. 9/27/06), 940 So.2d 777, this court held the $500,000 statutory limit on recovery of damages in medical malpractice actions found in La. R.S. 40:1299.42(B) was unconstitutional in failing to provide the Plaintiffs an “adequate remedy” as guaranteed under Article 1, § 22 of the Louisiana Constitution. This judgment was vacated by the Louisiana Supreme Court on procedural grounds. Arrington v. Galen-Med, Inc., et al., 06-2944 (La.2/2/07), 947 So.2d 724. Although the Plaintiffs raised the unconstitutionality of La.R.S. 40:1299.42(B) on several grounds, the supreme court held:

In the instant case, plaintiffs did not plead La. Const. Art. I, § 22 as a ground for finding La.R.S. 40:1299.42(B) to be unconstitutional. The question of whether La.R.S. 40:1299.42(B) violated La. Const. Art. I, § 22 was never briefed and argued before the district court, nor was that issue passed upon by the district court in its ruling denying plaintiffs’ motion for summary judgment.
In the absence of properly pleading and initial consideration of this ground by the district court, the court of appeal erred in declaring La.R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22.
Accordingly, we must vacate the judgment of the court of appeal declaring La.R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22. Because the court of appeal pre-termitted the remaining issues in the appeal, we will remand the matter to the court of appeal for consideration of these matters.

Id. at 729 (footnotes omitted).

REMAINING ISSUES ON APPEAL

We have considered the remaining matters, including the equal protection issue, as directed by the supreme court. However, the State complains Plaintiffs also 12did not specifically raise the equal protection issue in their motion for summary judgment and therefore this issue is not properly before the court. The supreme court, holding the unconstitutionality of a statute must be specially pleaded in the district court, stated in Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/20/94), 646 So.2d 859:

Our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute. However, the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.
The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. LSA-C.C.P. art. 852. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings.

Id. at 864-65(footnotes and citations omitted)(emphasis added).

As noted by the supreme court, “our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute.” Id. at 864. The requirement that the unconstitutionality of a statute must be specially pled and the grounds for the claim particularized is a jurisprudential one designed to prompt a “contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue.” Arrington, 947 So.2d at 726 (quoting Vallo, 646 So.2d at 865). The ultimate purpose of this rule, as explained by the supreme court, is that “[t]he record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality.” Id.

In our original opinion, Judge Cooks, dissenting, noted Plaintiffs “alleged in | otheir Fifth Amending and Supplemental Petition, under the Louisiana Constitution of 1974, the [Medical Malpractice Act’s (MMA) ] cap violates the ‘right to equal protection, and other rights therein guaranteed.’ ” Arrington, 940 So.2d at 787 (emphasis added). Plaintiffs further stated in their motion for summary judgment filed on June 19, 2003, that “separation of powers and federal and state substantive due process grounds and prohibited special law grounds prohibit the 1975 legislature from directing the result of judicial decisions in this case.” (emphasis added). Responding to these pleadings, the State, in its answer and second motion for summary judgment, asserted “La.R.S. 40:1299.42(B)(1) and (2) do not violate state constitutional guarantees of equal protection.” The trial court’s ruling, as well, reflects that this issue was reviewed on the merits.

Although we are satisfied the equal protection issue and the remaining issues were sufficiently pled below and are ripe for review, we elect to remand this case to the trial court to allow plaintiffs an opportunity to particularize all grounds for their claim that La.R.S. 40:1299.42(B) is unconstitutional in a proper amending and supplemental pleading and to afford the State, the Patient Compensation Fund Oversight Board, and all parties in interest an opportunity to fully address and litigate the grounds so alleged. See La.Code Civ.P. art. 2164; M.J. Farms, LTD v. Exxon Mobil Corp., et al, 07-0450 (La.04/27/07), 956 So.2d 573; Summerell v. Phillips, 258 La. 587, 247 So. 542 (1971).

Further, the State, in framing its position, below relied heavily on prior jurisprudence upholding the constitutionality of the MMA’s cap and, therefore, it did not present any evidence in the record or make any showing that the cap continues to serve a legitimate public purpose and that a reasonable basis still exists for maintaining the discriminatory classification affecting Plaintiffs’ right to full recovery |4in medical malpractice cases. We will not penalize the State for the failure, however, as noted in footnote 5 of Judge Cooks’ dissent in our original opinion, this evidence is readily available and important to a full examination of the issue. Accordingly, we elect on remand, consistent with the supreme court’s decision in Sibley II, to instruct the district court to re-examine all of the issues raised and to determine whether the statute is constitutional after permitting the parties to amend the pleadings, to conduct full discovery, to file additional motions and briefs, to introduce additional evidence, and to fully argue the issues advanced in all the pleadings pursuant to a contradictory hearing.

DECREE

We vacate the judgment of the district court. The case is remanded to the district court to allow the Plaintiffs to specially plead the uneonstitutionality of La.R.S. 40:1299.42(B) and for full litigation of the issues at a contradictory hearing in a manner consistent with this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS.

PICKETT and EZELL, JJ., dissent and assign written reasons.

PICKETT, J.,

dissenting.

|,I respectfully dissent from the opinion of the majority vacating the decision of the trial court and remanding for a new hearing.

The majority admits that the issue of the constitutionality of the $500,000.00 cap on general damages in medical malpractice claims brought under the Louisiana Medical Malpractice Act, codified at La.R.S. 40:1299.42(B)(1) and (2), was specifically pled in a pleading by the plaintiffs below. The trial court held a contradictory hearing, allowing all parties to submit evidence. The trial court then ruled that the cap on general damages was not unconstitutional.

Nevertheless, the majority today proposes to remand the case for a new hearing, citing La.Code Civ.P. art. 2164, M.J. Farm, Ltd. v. Exxon Mobil Corp., 07-450 (La.4/27/07), 956 So.2d 573, and Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971). Louisiana Code of Civil Procedure article 2164 states, in relevant part, “The appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” This is a truism which does not lend authority to our inaction in the present case.

12In M.J. Farms, the plaintiff raised the constitutionality of a statute in a memorandum. The trial court held the statute unconstitutional. The supreme court, in a per curiam opinion, held that a memorandum is not a pleading and vacated the judgment of the trial court. The case was remanded to the trial court for the plaintiff to properly plead the uneonstitutionality of the statute. In the case before us, the uneonstitutionality of the cap on general damages was raised in a pleading in the trial court, as required by the supreme court’s decision in Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/20/94), 646 So.2d 859. Thus, a remand is not appropriate under the language in M.J. Farms.

In Summerell, the plaintiff sought a writ of mandamus ordering the building inspector to issue a permit for a trailer park, arguing that a moratorium resolution passed by the parish council was unconstitutional. The trial court found the resolution unconstitutional and ordered the issuance of a permit. The next day, the parish council adopted an ordinance limiting trailer parks to special zoning districts. The trial court granted a motion for a new trial. The trial court denied the writ of mandamus and dismissed the plaintiffs suit after the new trial, finding that the validity of the zoning ordinance was not properly pled in the trial court. On review, the appellate court held the zoning ordinance unconstitutional. The supreme court found the appellate court did not have a proper record before it to reach the issue of constitutionality of the ordinance, and remanded to the trial court for proper pleading and a hearing. In the case before us, the unconstitutionality of the general damages cap was raised in proper pleadings in the trial court, a full hearing was held by the trial court, and the trial court ruled that the cap was constitutional, “even though there is no adequate remedy, equal protection, or separation of powers, in view of the | ¡¡erosion of ‘the dollar[.]’ ” A full record was developed in the trial court. The holding in Summerell is not applicable to the case before us.

The supreme court has held that while appellate courts have the power to remand a case to the trial court for additional proceedings, that authority should be “sparingly exercised.” Bayou Rapides Lumber Co. v. Campbell, 215 La. 849, 41 So.2d 781, 782 (1949). “When the entire record is before the appellate court, remand for a new trial produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process.” Gonzales v. Xerox Corp., 254 La. 182, 820 So.2d 168, 166 (1975). This is not a case in which a view of fact witnesses is essential for determination of the issues before us. This is not a case in which issues have been raised in the appellate court which require new evidence in order for this court to properly rule.

All parties have already had “an opportunity to address and fully litigate” the issues which are currently before this court. The state’s failure to produce evidence in the original hearing of this matter, despite being given a full opportunity, is not just cause for a remand, no matter how important the majority believes this information to be. Thus, I would reach the merits of the plaintiffs constitutional claims, as they are properly before us. As a majority of this panel has concluded that we should not reach the merits, I will not address the issues properly before us on remand from the supreme court, as such an opinion would at best be advisory.

EZELL, J.

Dissenting.

liThe Plaintiffs in this case have carried their burden by presenting evidence to show that there is no rational basis for the Medical Malpractice Act and that the Act does not continue to substantially further an important governmental interest. The courts of this state must remember that we are a Civil Law State and I urge all judges of this state to review the words of the late Justice Albert Tate, Jr.

Our basically civilian tradition has been partly overlaid and replaced by Anglo-American common law....

Today, despite the renewed importance of the civilian sources of our substantive law, there is little support in the Louisiana bench and bar for civilian theory that the role of the judges is to decide cases only, leaving doctrinal development to the scholarly writers....
The Louisiana judge, like his common-law brother, is a law-announcer as well as a case-decider....
As with the common-law judge, he views himself not merely as a technician but also as a scholar, law-maker and exponent of doctrine. However, as with a modern day civilian judge, he is essentially more free than his common law counterpart from the mechanical effects of “binding” precedent; he has the freedom to return, independent of intervening judicial precedents, to the initial legislative concepts and use creative analogies and constructs based upon them; or, in the absence of legislation expressly intended to apply, he is free to devise socially just and sound rules to regulate the unprovided-for case.
Justice Tate noted that even in other states, a judge is less bound by precedent when deciding an issue of constitutional, rather than jurisdictional or statutory law.

C.A. Marvin, Dissents in Louisiana: Civility Among Civilians, 58 La.L.Rev. 975, 977 (1998) (footnote omitted) (alteration in original).

      . Sibley v. Board of Supr’s of Louisiana State University, 477 So.2d 1094 (La.1985).


text:
    Charles Ray TAYLOR, Jr. and Sharon Taylor v. Richard J. CLEMENT, M.D., LPCF.
    No. 04-1069.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 2007.
    Writ Denied Dec. 7, 2007.
    Oliver Jackson Schrumpt, Schrumpt & Schrumpt, Sulphur, LA, for Plaintiffs/Appellants, Charles Ray Taylor, Jr. and Sharon Taylor.
    Milo Addison Nickel, Jr., Nadia Marie de la Houssaye, Lafayette, Louisiana, for Intervenor/Appellee, Louisiana Patient’s Compensation Fund Oversight Board.
    Steven William Hale, Lake Charles, Louisiana, for Defendant, Richard J. Clement, M.D.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, ELIZABETH A. PICKETT, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

hFor the reasons set forth in Arrington v. Galen-Med, et al, 04-1235 (La.App. 3 Cir. 7/6/07) 970 So.2d 540, 2007 WL 1946605, the judgment, of the trial court is vacated and the case is remanded to the trial court with instructions.

VACATED AND REMANDED WITH INSTRUCTIONS.

PICKETT and EZELL, JJ„ dissent and assign written reasons.

PICKETT, J.,

dissenting.

hi respectfully dissent from the opinion of the majority vacating the decision of the trial court and remanding for a new hearing.

The majority admits that the issue of the constitutionality of the $500,000.00 cap on general damages in medical malpractice claims brought under the Louisiana Medical Malpractice Act, codified at La.R.S. 40:1299.42(B)(1) and (2), was specifically pled in a pleading by the plaintiffs below. The trial court held a contradictory hearing, allowing all parties to submit evidence. The trial court then ruled that the cap on general damages was not unconstitutional.

Nevertheless, the majority today proposes to remand the case for a new hearing, citing La.Code Civ.P. art. 2164, M.J. Farm, LTD v. Exxon Mobil Corp., 07-450 (La.4/27/07), 956 So.2d 573, and Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971). Louisiana Code of Civil Procedure article 2164 states, in relevant part, “The appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” This is a truism which does not lend authority to our inaction in the present ease.

Ijn M.J. Farms, the plaintiff raised the constitutionality of a statute in a memorandum. The trial court held the statute unconstitutional. The supreme court, in a per curiam opinion, held that a memorandum is not a pleading and vacated the judgment of the trial court. The case was remanded to the trial court for the plaintiff to properly plead the unconstitutionality of the statute. In the case before us, the unconstitutionality of the cap on general damages was raised in a pleading in the trial court, as required by the supreme court’s decision in Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/20/94), 646 So.2d 859. Thus, a remand is not appropriate under the language in M.J. Farms.

In Summerell, the plaintiff sought a writ of mandamus ordering the building inspector to issue a permit for a trailer park, arguing that a moratorium resolution passed by the parish council was unconstitutional. The trial court found the resolution unconstitutional and ordered the issuance of a permit. The next day, the parish council adopted an ordinance limiting trailer parks to special zoning districts. The trial court granted a motion for a new trial. The trial court denied the writ of mandamus and dismissed the plaintiffs suit after the new trial, finding that the validity of the zoning ordinance was not properly pled in the trial court. On review, the appellate court held the zoning ordinance unconstitutional. The supreme court found the appellate court did not have a proper record before it to reach the issue of constitutionality of the ordinance, and remanded to the trial court for proper pleading and a hearing. In the case before us, the unconstitutionality of the general damages cap was raised in proper pleadings in the trial court, a full hearing was held by the trial court, and the trial court ruled that the cap was constitutional, “even though there is no adequate remedy, equal protection, or separation of powers, in view of the |serosion of ‘the dollar[.]’ ” A full record was developed in the trial court. The holding in Summerell is not applicable to the case before us.

The supreme court has held that while appellate courts have the power to remand a case to the trial court for additional proceedings, that authority should be “sparingly exercised.” Bayou Rapides Lumber Co. v. Campbell, 215 La. 849, 41 So.2d 781, 782 (1949). “When the entire record is before the appellate court, remand for a new trial produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process.” Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163, 166 (1975). This is not a case in which a view of fact witnesses is essential for determination of the issues before us. This is not a case in which issues haye been raised in the appellate court which require new evidence in order for this court to properly rule.

All parties have already had “an opportunity to address and fully litigate” the issues which are currently before this court. The state’s failure to produce evidence in the original hearing of this matter, despite being given a full opportunity, is not just cause for a remand, no matter how important the majority believes this information to be. Thus, I would reach the merits of the plaintiffs constitutional claims, as they are properly before us. As a majority of this panel has concluded that we should not reach the merits, I will not address the issues properly before us on remand from the supreme court, as such an opinion would at best be advisory.

EZELL, J.

Dissenting.

LThe Plaintiffs in this case have carried their burden by presenting evidence to show that there is no rational basis for the Medical Malpractice Act and that the Act does not continue to substantially further an important governmental interest. The courts of this state must remember that we are a Civil Law State and I urge all judges of this state to review the words of the late Justice Albert Tate, Jr.

Our basically civilian tradition has been partly overlaid and replaced by Anglo-American common law....

Today, despite the renewed importance of the civilian sources of our substantive law, there is little support in the Louisiana bench and bar for civilian theory that the role of the judges is to decide cases only, leaving doctrinal development to the scholarly writers.... The Louisiana judge, like his common-law brother, is a law-announcer as well as a case-decider.... As with the common-law judge, he views himself not merely as a technician but also as a scholar, law-maker and exponent of doctrine. However, as with a modern day civilian judge, he is essentially more free than his common law counterpart from the mechanical effects of “binding” precedent; he has the freedom to return, independent of intervening judicial precedents, to the initial legislative concepts and use creative analogies and constructs based upon them; or, in the absence of legislation expressly intended to apply, he is free to devise socially just and sound rules to regulate the unprovided-for case. Justice Tate noted that even in other states, a judge is less bound by precedent when deciding an issue of constitutional, rather than jurisdictional or statutory law.

C.A. Marvin, Dissents in Louisiana: Civility Among Civilians, 58 La.L.Rev. 975, 977 (1998) (footnote omitted) (alteration in original).