author: PETERS, J.

text:
    David CHAPMAN, et al. v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, et al.
    No. 06-0529.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Louis M. Corne, Lafayette, LA, for Plaintiffs/Appellants: David Chapman, et al.
    Jeffery Paul Robert, Law Firm of Gray-son H. Brown, Baton Rouge, LA, for Defendants/Appellees: Safeway Insurance Company of Louisiana, et al.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX and Judges JIMMIE C. PETERS and J. DAVID PAINTER.
   PETERS, J.

b These consolidated cases arise from an automobile accident which occurred in St. Landry Parish, Louisiana, on November 6, 2002. The plaintiffs in both cases appeal the grant of a partial summary judgment in favor of one of the defendants, Church of God in Christ, Inc., dismissing that defendant from the litigation. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

The accident at issue in this litigation occurred on November 6, 2002, between 11:00 p.m. and midnight at the intersection of U.S. Highway 190 and Louisiana Highway 95 in St. Landry Parish when a van driven by Johnathan L. Williams and owned by Mr. Williams’ wife collided with a pickup truck. Among the passengers in the van were Dustin Chapman, the minor son of David and Serena Chapman, and Cavin Hanchett, the minor son of Mae Bell Hanchett. In February 2003, the Chap-mans and Ms. Hanchett filed separate suits against Mr. Williams and several other defendants to recover the damages they and their children sustained as a result of the accident. By an order dated May 21, 2003, the trial court consolidated these two suits.

The pleadings in this litigation are substantial. However, disposition of the issue now before us involves an analysis of the relationships between Mr. Williams, the Church of God in Christ of Eunice, Inc. (Eunice church), and the Church of God in Christ, Inc., located in Memphis, Tennessee (national church). At the time of the accident, Mr. Williams was the pastor of the Eunice church, which, as the name suggests, is an affiliate church located in Eunice, Louisiana. The plaintiffs named the Eunice church as a defendant, asserting that, at the time of the accident, Mr. Williams was an employee of the church and was in the course and scope of that employment [¡¡relationship. Thus, the plaintiffs asserted, the Eunice church was liable to them for the damages they sustained as a result of Mr. Williams’ negligence based on the principle of respondeat superior. Based on that same principle, the plaintiffs asserted that Mr. Williams was also an employee of the national church and that it was also vicariously liable for their damages. Specifically, the plaintiffs asserted that the national church and the Eunice church constituted a “single business enterprise,” or that one was the alter ego of the other.

During the discovery process, the plaintiffs deposed Mr. Williams and Enoch Perry, III, an elder and general counsel of the national church. Using this deposition testimony, the national church filed a motion for summary judgment seeking dismissal from the litigation. In that motion, the national church sought relief on two grounds. First, it asserted that the two church corporations were separate and distinct legal entities and that Mr. Williams was not its employee. Second, it asserted that Mr. Williams was on a personal mission at the time of the accident and therefore it was not vicariously liable regardless of whether an employment relationship existed.

After a February 6, 2006 hearing, the trial court granted the motion for summary judgment and dismissed the national church as a party defendant in the consolidated matters. The trial court also designated the partial judgment as a final judgment subject to immediate appeal. The plaintiffs perfected this appeal, seeking reversal of the judgment. In our opinion which follows, we will address only the course and scope of employment ground because we find it to be dispositive of the appeal.

| .SUMMARY JUDGMENT PROCEDURE

The supreme court recently discussed the law pertaining to summary judgment procedure and stated the following:

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.
A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Louisiana Code of Civil Procedure art. 966(C)(2) provides:

(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, motion, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Hines v. Garrett, 04-806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (alteration in original).

In the matter before us, the plaintiffs will bear the burden of proof at trial. Therefore, the national church need only establish that there is an absence of factual support for one or more elements essential to the plaintiffs’ claim.

| ¿VICARIOUS LIABILITY AND COURSE AND SCOPE OF EMPLOYMENT

Louisiana Civil Code Article 2320 provides in part: “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of -the functions in which they are employed.” This principle of law is comprised in the term respondeat superior.

Vicarious liability is liability for the tortious act of another person. See Dan B. Dobbs, The Law of Torts, § 333, at 905 (2001). Vicarious liability is most often imposed on an employer for the torts of its employee committed in the course and scope of employment. At common law, the Latin phrase responde-at superior (“let the master answer”) denotes this type of liability. Id.; Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law, § 13-2, at 308-09 (1996). In Louisiana, this concept is codified. See LSA-C.C. art. 2320; LSA-R.S. 9:3921.

Quebedeaux v. Dow Chem. Co., 01-2297, p. 4 (La.6/21/02), 820 So.2d 542, 545 n. 5.

In determining whether an employer is liable for the acts of an employee, the factors to be considered are whether the tortious act was primarily employment rooted, reasonably incidental to the performance of the employee’s duties, occurred on the employer’s premises, and occurred during hours of employment. LeBrane v. Lewis, 292 So.2d 216 (La.1974). Stated another way, the issue is whether the tortious conduct of the employee so closely connected him or her in time, place, and causation to his or her employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. Id.

In Weatherford v. Commercial Union Insurance Co., 93-841 (La.App. 1 Cir. 5/20/94), 637 So.2d 1208, aff'd on other grounds, 94-1793, 94-1927 (La.2/20/95), 650 So.2d 763, the plaintiff filed suit on behalf of herself and her child, who was injured when his bicycle was struck by the vehicle of a Catholic priest returning from | RcounseIing an ill person. The plaintiff argued that the Diocese of Baton Rouge, the priest’s employer, was vicariously liable pursuant to La.Civ.Code art. 2320. The Diocese argued that the priest went to the man’s home of his own volition on his day off in his personal vehicle and that, given the priest’s character and nature, the priest did something he would have done had he not been a priest. Because the trial court had not reached the issue as framed on appeal, the first circuit conducted a de novo review of the record and concluded that the priest was not acting in the course and scope of his employment at the time of the accident.

In the present case, Mr. Williams’ deposition testimony established that when the November 6, 2002 accident occurred, he was returning to Eunice in his wife’s van after preaching a revival service in Church Point, Louisiana. Although the Church Point church was also a Church of God in Christ church, it was otherwise unrelated to the Eunice church, and Mr. Williams’ pastoral duties at the Eunice church did not include participation in the revival service. According to Mr. Williams, he received a telephone call at his home requesting that he preach the Church Point revival and his participation was purely voluntary and for the benefit of the Church Point congregation only. He explained that it was not unusual for him to be involved in preaching activities outside of his role as the pastor of the Eunice church and that these preaching activities were not limited to Church of God in Christ Churches, but were interdenominational. In other words, Mr. Williams’ participation in revival services at other churches had less to do with his church affiliation than with his ability as a speaker. As examples, he explained that in the past he had conducted a revival at a Baptist church in Baton Rouge, Louisiana; had participated in a “gospel youth explosion” in Rayne, Louisiana; and had participated | fiin numerous other Christian activities involving singing, drama, and religious art, which activities did not involve the Eunice church.

Concerning the presence of the two minor children injured in the accident, Mr. Williams testified that he had transported them as well as other young members of the Eunice church choir to the Church Point revival. According to Mr. Williams, these choir members had volunteered to travel with him and sing at the revival. He stressed the fact that their participation was for the benefit of the revival services, and not the Eunice church. Because the service was on a Wednesday night, he did not leave his pulpit vacant by involving himself in the revival.

Mr. Williams explained that he believed that, as a Christian, he had an obligation or “calling” to preach the Word of God and minister to others. While acknowledging that this obligation or calling was a qualification for being the pastor of the Eunice church, it existed within him before becoming a pastor of that church and would continue after he left that church and whether he pastored any other church.

Mr. Perry testified by deposition that Mr. Williams, as pastor of the Eunice church, had complete authority to make all decisions regarding the scheduling of services in the local church. Mr. Perry also testified that preaching at other churches is not part of Mr. Williams’ pastoral duties at the Eunice church.

In opposition to the motion for summary judgment, the plaintiffs introduced identical affidavits of Serena Chapman and Mae Bell Hanchett. In those affidavits, each affiant asserted that “she would not allow her son to be out late at night on a|7school night unless it was a supervised church function” and that “[a]t no time did [Mr. Williams] state that the trip was not a church sponsored trip.”

The plaintiffs’ basic argument is that one cannot separate the duties of the pastor of a Christian church from his responsibilities as a Christian. That is to say, he maintains his role as pastor twenty-four hours per day. While we agree that a pastor is a pastor around the clock, we also note that it is a tenet of faith common to Christians of all denominations that devotion and service to God are continuing obligations, and, in this regard, the obligations owed by a pastor, a minister, a preacher, and a layman are the same. It follows that the responsibilities of a pastor have to be distinguished between purely pastoral duties and activities otherwise associated with his Christian responsibilities.

In the matter now before us, the trial court basically concluded that Mr. Williams was not engaged in pastoral duties at the time of the accident, and we agree. The affidavits submitted by the plaintiffs simply repeat allegations of the pleadings. When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations of his pleading, but his response must set forth specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art. 967(B). If the adverse party does not so respond, summary judgment, if appropriate, shall be rendered against him. Id. We find that the plaintiffs have not produced factual support sufficient to establish they will be able to satisfy their evidentiary burden of proof at trial that Williams’ conduct was within the course and scope of his employment for purposes of vicarious liability. The partial summary judgment was properly rendered dismissing the national church from the lawsuit.

DISPOSITION

| ¡¡For the foregoing reasons, we affirm the judgment of the trial court. We assess all costs of the appeal to the plaintiffs.

AFFIRMED.

      . As previously stated, the two suits were filed in the lower court and consolidated there. Our opinion is rendered in Chapman v. Safeway Insurance Co. of Louisiana, 06-529 (La.App 3 Cir.09/27/06), 940 So.2d 827, 2006 WL 2785773. A separate judgment will be rendered this date in Hanchett v. Safeway Insurance Co. of Louisiana, 06-530 (La.App. 3 Cir.09/27/06), 940 So.2d 832, 2006 WL 2786810.

      . A copy of the Official Manual of the Church of God in Christ was identified by Mr. Perry and attached to his deposition. Part V of the Manual distinguishes between a minister and a pastor. It states that a local preacher is a minister who has been granted a license to preach, while a pastor is the minister appointed over a congregation.


source: Caselaw Access Project

license: Public Domain

text:
    Mae Bell HANCHETT v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, et al.
    No. 06-0530.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Louis M. Corne, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants, David Chapman, et al.
    Jeffery Paul Robert, Law Firm of Gray-son H. Brown, Baton Rouge, LA, for Defendants/Appellees, Safeway Insurance Company of Louisiana, et al.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX and Judges JIMMIE C. PETERS and J. DAVID PAINTER.
   PETERS, J.

For the reasons set forth in Chapman v. Safeway Insurance Co. of Louisiana, 06-529 (La.App. 3 Cir.9/27/06), 940 So.2d 827, 2006 WL 2785773, we affirm the trial court’s judgment in all respects and assess all costs of this appeal to the plaintiff.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    Richard J. MURRAY, Jr., et ux. v. TOWN OF MANSURA, et al.
    No. 06-355.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Rehearing Denied Nov. 15, 2006.

      Richard J. Murray, Jr., In Proper Person, Mansura, Louisiana, for Plaintiffs/Appellants, Richard J. Murray, Jr., Barbara D. Murray.
    Randall Brian Reiser, Reiser Law Firm, Alexandria, Louisiana, for Defendants/Ap-pellees, Town of Mansura Phillip Lucas.
    Court composed of SYLVIA R. COORS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

| plaintiffs, Richard and Barbara Murray, appealed the trial court’s judgment in this malicious prosecution case. Defendants, the Town of Mansura and Chief of Police Phillip Lucas, answered the appeal and seek a reversal of the judgment. For the following reasons, the judgment of the trial court is affirmed in part and reversed in part.

Facts and Procedural Background

Plaintiffs’ claims arise out of two encounters between Richard Murray and Donald Alexander and Chief Lucas, on Sunday, March 21, 1999. The first encounter occurred after church services which Mr. Murray, Mr. Alexander, and Chief Lucas attended. Mr. Murray and Mr. Alexander approached Chief Lucas, seeking to discuss a previous warning they had been given by a Mansura police officer that they would be arrested if they remained in a park owned by the church after the posted hours of use. Not wanting to discuss the matter at that time, Chief Lucas asked the two men to go to the City Hall the following day. Chief Lucas then left the church and went to City Hall to address other business. Mr. Murray and Mr. Alexander followed him.

When Mr. Murray and Mr. Alexander arrived at City Hall, the main door was locked, so they banged on the door to gain entrance to the building. Chief Lucas went to the door and informed them again that he wanted them to return the next day to discuss the matter. According to Chief Lucas, the men became loud and belligerent, and he warned them to leave the premises or he would arrest them. When the men did not leave, he told them they were under arrest. At that point, the men left City Hall and went back to the church. Chief Lucas and two of his officers followed the men and took them into custody. The men were charged with disturbing the peace Rand flight from an officer. Mr. Alexander and Mr. Murray testified that Chief Lucas was as loud, or louder, than they were and that he did not arrest them at the church.

After a trial on the charges, an ad hoc magistrate for the Town of Mansura dismissed the charges against Mr. Murray, finding that the facts surrounding the encounter did not meet the elements of disturbing the peace and/or flight from an officer.

Plaintiffs instituted suit for malicious prosecution. They amended their original claims to include claims under 42 U.S.C. § 1983 and claims for false arrest and false imprisonment and to assert claims against additional defendants. Defendants removed the matter to federal court due to the federal claims. The federal district court dismissed all of the federal claims and remanded Plaintiffs’ state claims to state court. Plaintiffs appealed that judgment to the U.S. Fifth Circuit, Court of Appeals, the Louisiana Supreme Court, and the U.S. Supreme Court. The judgment was affirmed at all levels.

Plaintiffs returned to state court to litigate their state claims, i.e., malicious prosecution and false arrest and imprisonment. Their claims for false arrest and imprisonment were dismissed on an Exception of Prescription filed by Defendants. Plaintiffs’ claims against all but the original Defendants, Town of Mansura and Chief Lucas, were also dismissed. The matter was tried July 14, 2005. The trial court took the matter under advisement. In Reasons for Judgment, the trial court found Plaintiffs proved their claim of malicious prosecution against Defendants and awarded them $1,000.00 in damages.

Assignments of Error

Plaintiffs specifically assign two errors in their appellate brief:

Isl) Whether municipal officials for the Town of Mansura, broke policy and practice or custom, depriving Plaintiffs of Constitutional rights, establishing municipal liability under 42 U.S. § 1988.
2) Whether the United States District Court properly granted the motion to dismiss and dismissed Plaintiffs’ civil rights claims made pursuant to 42 U.S. § 1983 and remanded the remaining state law claims to a Louisiana district court.

In presenting these arguments, Plaintiffs complain of additional actions and/or findings by the trial court which we also address herein.

Plaintiffs were originally represented herein by counsel but represented themselves in the federal courts and in state court since their state claims were remanded by the federal district court. Their pro se representation has caused, and continues to cause, this factually-simple matter to be quite complicated.

Standard of Review

A finding of fact by a trial court or a jury may not be set aside in the absence of manifest error or unless it is clearly wrong. Sportsman Store of Lake Charles, Inc. v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201 (La.10/19/99), 748 So.2d 417. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, if such factors are not present, and a fact finder’s determination is based on its decision to credit the testimony of |4one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id.

Discussion

Federal Claims

In their original appellate brief, Plaintiffs complain of the dismissal of their federal constitutional and/or civil rights claims by the federal district court, but assert in their Reply and Rebuttal Brief that they do not seek review of the federal court’s judgment. For clarity, we observe that the judgment of the federal district court is final, and this court has no jurisdiction to consider any complaints regarding it. See Swope v. St. Mary Parish Sch. Bd., 256 La. 1110, 241 So.2d 238 (1970), where the Louisiana Supreme Court held that Louisiana state courts cannot consider appeals of judgments rendered by federal courts. See also La. Const, art. 5, § 10.

Default Judgment against Magor Harold Quebedeaux

Plaintiffs urge that the trial court erred in refusing to grant their Motion for a Default Judgment against the Mayor of Mansura, Harold Quebedeaux. The trial court denied Plaintiffs’ motion without a hearing, noting that Mayor Quebedeaux had previously been dismissed.

Plaintiffs added Mayor Quebedeaux as an additional defendant in their Second Supplemental and Amending Petition for Damages which was filed July 11, 2002. They filed a motion for entry of default on March 22, 2005. Pursuant to an Exception of Prescription, Plaintiffs’ claims against Mayor Quebedeaux were dismissed by the trial court on May 23, 2005, on the basis that the claims were prescribed. Mayor Quebedeaux filed an Answer on May 26, 2005.

IsA default judgment may be entered against a defendant only when that defendant fails to file an answer. La.Code Civ.P. art. 1701. If a defendant files an answer after the delays for filing an answer have elapsed but before a default judgment entered against him is confirmed, the default judgment cannot be confirmed. La.Code Civ.P. art. 1002.

Mayor Quebedeaux filed an answer to Plaintiffs’ Second Supplemental and Amending Petition after the delay for filing an answer provided in La.Code Civ.P. art. 1001, but the default judgment entered on March 22, 2005, had not been confirmed. Therefore, the trial court did not err in denying the motion for default judgment against him. La.Code Civ.P. art. 1002.

False Arrest and Imprisonment Claims

In their Petition for Damages filed September 28, 2000, Plaintiffs identified two dates, March 18, 2000, and March 21, 1999, as dates on which the events giving rise to the only claim asserted therein, malicious prosecution, occurred. Evidence in the record establishes that the events at issue occurred on March 21 and 22, 1999, not March 2000.

On July 11, 2002, Plaintiffs filed a Second Supplemental and Amending Petition for Damages in which they named additional defendants and asserted additional claims arising from the events of March 21-22, 1999, including false arrest and imprisonment and claims in violation of federal law. Plaintiffs named the Town of Mansura and Chief Lucas as defendants in their Petition for Damages. They named Mayor Quebedeaux, Renee Roy, a local attorney who served as attorney for the Town of Mansura and who was appointed ad hoc magistrate of Mansura’s Mayor’s Court for the trial of Mr. Murray’s criminal charges, Ms. Christine Demouy, |(ia member of Plaintiffs’ church, and Benjamin Burns, Plaintiffs’ former attorney, as additional defendants in their Second Supplemental and Amending Petition.

The trial court dismissed all of Plaintiffs’ additional claims, including their claims for false arrest and imprisonment. Finding the additional claims to be prescribed, the trial court explained:

[A]ll plaintiffs have a period of one year from the date that injury or damage is sustained within which to institute a Petition for Damages. In the case at bar, Richard Murray was arrested on March 21, 1999 and released March 22, 1999. For any claim of injury or damage in relation to an alleged false arrest and/or false imprisonment, Richard Murray had a period of one year ... within which to file a Petition for Damages alleging false arrest and/or false imprisonment. In the ease at bar, a Petition for Damages was not filed until September 27, 2000 and that Petition did not include a claim for false arrest and/or false imprisonment. Even if it had, those claims would have been prescribed.

Plaintiffs assert that all of the claims alleged in their Second Supplemental and Amending Petition for Damages “can be linked back” to their Petition for Damages filed September 27, 2000. They also urge that prescription for their false arrest and imprisonment claim was suspended and did not accrue until one year from Mr. Murray’s release from jail because the appointment of Renee Roy, attorney for the Town of Mansura, to sit ad hoc as judge for the criminal proceeding against Mr. Murray was improper and resulted in the Mayor’s Court not having jurisdiction to adjudicate the matter.

Louisiana Code of Civil Procedure Article 1153, which governs the relation back of amendments, provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

|7The liberative prescriptive period for Plaintiffs’ malicious prosecution claim did not begin to run until the underlying prosecution was dismissed. Manuel v. Deshotels, 160 La. 652, 107 So. 478 (1926); see also De Bouchel v. Koss Const. Co., 177 La. 841, 149 So. 496 (1933). The charges against Mr. Murray were dismissed on September 27, 1999. Therefore, when Plaintiffs filed their Petition for Damages on September 27, 2000, their malicious prosecution claim was not prescribed.

Contrary to a malicious prosecution claim, a claim for false arrest and imprisonment arises the day the false arrest and imprisonment occurs. In De Bouchel, 177 La. 841, 149 So. 496, the plaintiff asserted claims for false imprisonment and malicious prosecution. The supreme court held that the false imprisonment cause of action, which includes a claim of false arrest, arose on the day the plaintiff was imprisoned and that the cause of action was subject to a one year prescriptive period. Prescription on such a claim begins to run no later than the date on which the imprisonment is terminated. Id. Thus, prescription on Plaintiffs’ false arrest and imprisonment claim began accruing no later than March 22, 1999, the date Mr. Murray was released from jail, and their assertion of this claim in their Second Supplemental and Amending Petition filed on July 11, 2002, came too late, as it was already prescribed. Once prescribed, a claim cannot be revived. Etienne v. Nat’l Auto. Ins. Co., 99-2610 (La.4/25/00), 759 So.2d 51.

In De Bouchel, 177 La. 841, 149 So. 496, the supreme court treated the plaintiffs false arrest and imprisonment claim and malicious prosecution as two separate claims. The court did not find that the criminal proceeding, which gave rise to the malicious prosecution claim, affected the accrual of prescription on the false arrest and imprisonment claim. See also, Hampton v. Kroger Co., 27,073 (La.App. 2 Cir. 6/21/95), 658 So.2d 209, writ denied, 95-2140 (La.1/5/96), 666 So.2d 298. The criminal proceeding on Mr. Murray’s disturbance of the peace and flight from an officer charges did not affect prescription on his false arrest and imprisonment claim; therefore, any irregularity in the appointment of an ad hoe judge to the Mansura Mayor’s Court to try the charges did not affect the running of prescription on Plaintiffs’ false arrest and imprisonment claim.

Plaintiffs’ claims against the additional defendants named in their Second Supplemental and Amending Petition did not arise out of the events surrounding Mr. Murray’s arrest; therefore, their claims against these defendants did not relate back to their Petition for Damages. La. Code Civ.P. art. 1153. Accordingly, the trial court did not err in dismissing Plaintiffs’ claims against the additional defendants.

Malicious Prosecution

“Malicious prosecution is the wrongful institution or continuation of a criminal or civil proceeding.” Shepherd v. Williams, 00-1506, p. 7 (La.App. 3 Cir. 2/28/01), 780 So.2d 633, 637 (quoting Frank L. MaRaist & Thomas C. Galligan, JR., Louisiana ToRt Law, § 2-6(d) at p. 31 (1996)). A plaintiff who files a claim for malicious prosecution must prove: (1) the commencement or continuance of an original criminal or civil proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to the plaintiff. Id.

The trial court found, and Defendants do not deny, that Plaintiffs satisfied the first three elements of their claim. Accordingly, we begin our discussion with the | (¡fourth element, probable cause. The plaintiff in a malicious prosecution case must show there was no probable cause for his arrest. “Probable cause does not depend upon the actual state of the case in point of fact, but on the honest and reasonable belief of the party prosecuting.” Graham v. Interstate Elec. Co., 170 La. 392, 395, 127 So. 879, 880 (1930); see also Eusant v. Unity Indus. Life Ins. and Sick Benefit Ass’n of New Orleans, Inc., 195 La. 347, 354, 196 So. 554, 556 (La.1940).

Chief Lucas charged Mr. Murray and Mr. Alexander with disturbing the peace and flight from an officer. The trial court determined that Chief Lucas did not have “an honest and reasonable belief that Murray was guilty of Disturbing the Peace and Flight from an Officer,” and, therefore, did not have probable cause to arrest him on these charges. Defendants assign as error the trial court’s determination that Chief Lucas did not have probable cause to arrest Mr. Murray for disturbing the peace.

Disturbing the peace is defined in part as:

[T]he doing of any of the following in such manner as would foreseeably disturb or alarm the public:
(2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty[.]

La.R.S. 14:103(A).

The trial court’s determination was based on Chief Lucas being “held to a higher degree of restraint than the average citizen” because he is a police officer. In State v. Woolverton, 474 So.2d 1003 (La.App. 5 Cir.1985), the evidence presented was found to be insufficient to support the defendant’s conviction for disturbing the Impeace. The arresting officers testified that the defendant made “argumentative statements” and complained that they had no right to remove his furniture. The officers also testified that the defendant cursed and used “a little profanity,” but they did not specify what words the defendant used. The officers unsuccessfully attempted to quiet the defendant down before arresting him.

The court held that “police officers are expected to exercise more restraint than others and insulting language is less likely to cause a breach of the peace” with regard to them. Id. at 1005. The Woolver-ton court determined that the evidence did not establish that the police had probable cause to arrest the defendant for disturbing the peace. See also, State in the Interest of W.B., 461 So.2d 366, 368 (La.App. 2 Cir.1984), where the court held that the defendant’s addressing the officer as a “G— D white M F” was constitutionally protected speech and did not provide probable cause for the defendant’s arrest for disturbing the peace.

Chief Lucas testified that Mr. Murray was aggressive in his actions and that he cursed, but he did not testify as to the specific language Mr. Murray used. In light of the jurisprudence regarding the higher standard applicable to police officers, we find no error with the trial court’s conclusion that Chief Lucas did not have probable cause to arrest Mr. Murray with respect to Mr. Murray’s actions and language vis-a-vis him or his officers.

As testified by Chief Lucas and acknowledged by Mr. Alexander, Chief Lucas’ children were present with him at the church and City Hall during his encounters with Mr. Murray and Mr. Alexander, and Defendants argue that Chief Lucas had probable | n cause to arrest Mr. Murray for the disturbing the peace with respect to his children. The trial court did not address the charge of disturbing the peace in this regard.

Chief Lucas testified in his discovery deposition:

A: See, I was in the city hall, and my kids were here, like I said earlier, my kids—
Q: Right.
A: —I don’t let my kids get involved in that kind of stuff—

Chief Lucas further testified in his trial deposition:

A: Right. Well, after I give them orders to leave the city hall because due to the fact that like I say it was the wrong timing they refused. They refused. Like I say, by disturbing — I feel like — how they was disturbing the peace or like I say, my children was there....
A: And I feel that wasn’t the right time to discuss this issue in front of my kids.
Q: Okay. So after you asked them repeatedly to leave and they didn’t and they continued to be loud then you placed them under arrest for disturbing the peace? Is that right?
A: Right. Right. I sure did.
Q: Okay. And that was because you had two minor children there and....
A: Exactly.
Q: ... they were being loud and cursing?
A: Right.
A: And I kept on telling the, I said this not a place, I got my kids in here, you know and right then and there I told them to leave because they was causing a disturbance ...
|12Q: ... Who was also present at the municipal building whenever Mr. Alexander and Mr. Murray showed up?
A: Okay. My kids and also Rodney Barbin and Tony St. Romain.
A: Yeah. I told them to leave.
Q: Why did you tell them that?
A: Because at the time it wasn’t the time to — for—my kids and — it wasn’t the time for them to be in the building, I said because I had my kids in there.
Q: [D]id your arrest for disturbing the peace have anything to do with the church or anything other than what — how Mr. Murray acted here in the municipal building?
A: That’s what it was all about, this building.
Q: Okay.
A: And most of all in front of my kids.

Chief Lucas’ testimony leads us to conclude that he was legitimately concerned about Mr. Murray and Mr. Alexander’s behavior in the presence of his children. In State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866, yelling, screaming, and cursing in a public place was held to satisfy the requirements of La.R.S. 14:103(A). We find Chief Lucas had an honest and reasonable belief that the charge of disturbing the peace was valid with regard to Mr. Murray and Mr. Alexander’s actions in the presence of his children. For these reasons, we reverse the trial court’s determination that Chief Lucas did not have probable cause to arrest Mr. Murray for disturbing the peace.

| ^Defendants also urge that Chief Lucas had probable cause to arrest Mr. Murray for remaining after being forbidden in violation of La.R.S. 14:63.3. They argue that the trial court’s determination that Chief Lucas’ arrest of Mr. Murray was without probable cause is manifest error for this reason as well. La.R.S. 14:63.3(A) provides:

No person shall without authority go into or upon or remain in or upon or attempt to go into or upon or remain in or upon any structure, watercraft, or any other movable, or immovable property, which belongs to another, including public buildings and structures, ferries, and bridges, or any part, portion, or area thereof, after having been forbidden to do so, either orally or in writing, including by means of any sign hereinafter described, by any owner, lessee, or custodian of the property or by any other authorized person.

Chief Lucas testified that he told Mr. Murray and Mr. Alexander to leave City Hall and return the next day to discuss their complaints. He further testified that he told them this more than one time, but the men did not leave. His testimony on this issue was not refuted by either Mr. Murray or Mr. Alexander. We agree with Defendants that Chief Lucas also had probable cause to arrest Mr. Murray for remaining after being forbidden.

A finding of probable cause to arrest Mr. Murray for disturbing the peace precludes a finding in favor of Plaintiffs. Shepherd, 780 So.2d 633; Kenner v. Milner, 187 So. 309 (La.App. 1 Cir.1939). Accordingly, we reverse the judgment of the trial court in favor of Plaintiffs.

Recusal of Trial Court Judge

Plaintiffs argue that the trial court judge should have recused himself from trying this case because they had sued him previously. During cross-examination regarding prior lawsuits he had filed, Mr. Murray testified that he had sued the trial court judge. Mr. Murray also testified that he did not consider the trial court judge to be biased against him or his wife. Plaintiffs had not filed a motion to recuse prior |uto trial and did not ask the trial court judge to recuse himself during or after his cross-examination.

Article 151 of the Louisiana Code of Civil Procedure delineates the grounds for the recusal of a trial court judge. It provides:

A. A judge of any court, trial or appellate, shall be recused when he is a witness in the cause.
B. A judge of any court, trial or appellate, may be recused when he:
(1) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
(2) At the time of the hearing of any contested issue in the cause, has continued to employ, to represent him personally, the attorney actually handling the cause (not just a member of that attorney’s firm), and in this case the employment shall be disclosed to each party in the cause;
(3) Has performed a judicial act in the cause in another court;
(4) Is the spouse of a party, or of an attorney employed in the cause; or is related to a party, or to the spouse of a party, within the fourth degree; or is related to an attorney employed in the cause, or to the spouse of the attorney, within the second degree; or
(5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.
C.In any cause in which the state, or a political subdivision thereof, or a religious body or corporation is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body or corporation, is not a ground for recusation.

A motion to recuse a trial court judge must be in writing and must be “filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment.” La.Code Civ.P. art. 154.

|1fiA trial court judge may recuse himself from presiding over a proceeding whenever a ground for recusation exists. La. Code Civ.P. art. 152(A). Our review of the trial transcript indicates that the trial court judge had apparently forgotten that he had been sued by Mr. Murray until Mr. Murray’s testimony during trial.

Plaintiffs had the opportunity to object to the trial court judge’s trying their case before trial and when the issue arose during trial of the matter; they did not. Counsel for Defendants questioned Mr. Murray on this issue when it arose during the trial, and Mr. Murray testified that he did not have any concerns about the trial court judge trying the case. More importantly, Mr. Murray testified that he did not believe the trial court judge was biased against him or his wife. We find no error with the trial court judge’s failure to re-cuse himself as judge herein.

Damages for Affidavit Executed by Chief Lucas

Plaintiffs next complain that the trial court erred in not allowing them to assert claims for monetary damages because an affidavit executed by Chief Lucas included an incorrect statement regarding tapes of hearings held in the Mayor’s Court. They contend the affidavit amounts to perjury in violation of La.R.S. 14:123, false swearing in violation of La.R.S. 14:125, and criminal conspiracy in violation of La.R.S. 14:26.

These claims arise out of Plaintiffs’ pretrial request for tapes of the hearings involving Mr. Murray that were held in Mansura’s Mayor’s Court. In response to Plaintiffs’ request, Chief Lucas executed an affidavit which stated that in 1999 proceedings before the Mansura’s Mayor’s Court were not taped. It later became known that tapes were made of some proceedings held in the Mayor’s Court in 1999, but not at the time of Mr. Murray’s hearing. Chief Lucas testified that he is 1! (¡responsible for storing all of the Mayor’s Court’s tapes, but he is not responsible for taping the proceedings.

Defendants urge that the trial court correctly denied Plaintiffs’ request because violation of these statutes do not entitle one to monetary damages and because these statutes can only be enforced by law enforcement officials not private citizens. The trial court initially granted a motion allowing Plaintiffs to file claims relevant to the affidavit executed by Chief Lucas but withdrew that grant of permission after a hearing on a motion to vacate the order filed by Defendants.

A transcript of the hearing held on this issue is not contained in the appellate record. Without a transcript of the hearing, we do not know the basis of the trial court’s withdrawal of its permission to allow Plaintiffs to file claims for damages they may have suffered as a result of Chief Lucas’ affidavit. This court addressed this issue in Preuett v. Preuett, 517 So.2d 848, 849 (La.App. 3 Cir.1987), explaining:

Under La.C.C.P. arts. 2128 and 2129, the appellant had the duty to designate the record on appeal. Eagle v. Eagle, 477 So.2d 1293 (La.App. 3d Cir.1985). When there are factual issues involved and the record contains neither a transcript of testimony nor a narrative of facts, there is nothing for appellate review. Under such circumstances, we must presume that the judgment of the trial court is correct and supported by sufficient competent evidence. Miller v. Miller, 480 So.2d 789 (La.App. 3d Cir.1985), writ denied, 481 So.2d 1337 (La.1986). Appellant has failed to offer us sufficient evidence to overcome the presumption of correctness bestowed upon the trial court judgment.

There is no evidence that there are tapes of Mr. Murray’s criminal proceeding in Mansura’s Mayor’s Court relative to this matter. Therefore, any error in Chief Lucas’ affidavit did not cause damage to Plaintiffs, and they have no claim for damages because of an error contained in the affidavit.

117Plaintiffs cite La.R.S. 9:5501.1 in support of this claim. This provision relates to affidavits of distinction for the cancellation of mortgages. It has no bearing on the issue presented herein.

Evidence Not Introduced at Trial

Plaintiffs rely upon testimony contained in deposition excerpts attached to their Pre-trial Memorandum and their Reply and Rebuttal Brief and another document attached to their Reply and Rebuttal Brief as support for some of their claims; these documents were not introduced at the trial of this matter. They also make assertions regarding facts that were not established at trial and seek relief on appeal that was not requested in the trial court, i.e., they attempt to assert a claim for defamation against counsel for Defendants. Plaintiffs have also filed a Motion for Production of Documents with this court seeking a copy of their depositions from defense counsel. In response to Plaintiffs’ Motion for Production of Documents, Defendants filed a Motion to Strike. Action of both of these motions was referred to the merits of this appeal.

In Tranum v. Hebert, 581 So.2d 1023 (La.App. 1 Cir.), unit denied, 584 So.2d 1169 (La.1991), similar issues were presented. The court explained why Plaintiffs’ requests cannot be granted by this court:

Pursuant to La.C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. La.C.C.P. arts. 2127 and 2128; Official Revision Comment (d) for La. C.C.P. art. 2127. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Davis v. Anderson, 451 So.2d 1302 (La.App. 1st Cir.1984). The record before us contains memoranda (briefs), with attached exhibits, which were filed in the trial court. These memoranda and exhibits were not filed in evidence and are not Impart of the record on appeal. In State ex rel. Guste v. Thompson, 532 So.2d 524, 527, n. 2 (La.App. 1st Cir.1988) appears the following:
The briefs of the parties assert facts which are not in the record and refer to exhibits which have not been filed in evidence in the record. An appellate court may not consider evidence which is outside the record. La. C.C.P. art. 2164. The briefs of the parties and the attachments thereto are not part of the record on appeal. Bunch v. Town of St. Francisville, 446 So.2d 1357 (La.App. 1st Cir.1984). In addition, we may not consider exhibits filed in the record which were not filed in evidence, unless authorized by law to do so. See, for example, La. C.C.P. arts. 966 and 967.
See also Leyva v. Laga, 549 So.2d 914 (La.App. 3rd Cir.1989). Further, the appellate briefs of the parties herein assert facts not contained in the petition or the record on appeal. The appellate briefs of the parties are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal. Capital Drilling Company v. Graves, 496 So.2d at 489; Fred H. Moran Construction Corporation v. Elnaggar, 441 So.2d 260 (La.App. 1st Cir.1983).

Id. at 1026-27. The discussion in Tranum makes it clear that this court cannot consider the documents submitted or the facts asserted by Plaintiffs that are not contained in the record. For these same reasons, Plaintiffs’ Motion for Production of Documents is futile, as this court cannot consider any documents produced in response to such a motion. Accordingly, Defendants’ Motion to Strike is granted.

In the trial court and in this court, Plaintiffs have urged at various times that they are not attorneys and do not know what is required for them to prevail on their claims. They complain that their lack of knowledge has caused them to be disadvantaged in obtaining justice.

The record of this matter establishes that the trial court and defense counsel have been understanding and lenient with Plaintiffs throughout the course of this litigation because they are not attorneys. Plaintiffs have not been held to the same |19standards of skill and judgment that an attorney would have been held to in this matter. It is important that Plaintiffs realize that “[they] assume[d] all responsibility for [their] own inadequacy and lack of knowledge of procedural and substantive law” when they decided to represent themselves. Deville v. Watch Tower Bible & Tract Soc., Inc., 503 So.2d 705, 706 (La.App. 3 Cir.1987).

Disposition

For the reasons discussed herein, the judgment in favor of Plaintiffs is 'affirmed in part and reversed in part. All costs of this appeal are assessed to Plaintiffs.

AFFIRMED IN PART AND REVERSED IN PART.

      . Prescription of Plaintiffs' federal claims is ■ not addressed herein because all of their federal claims were disposed by the federal district court.

      . The events in Woolverton, 474 So.2d 1003, arose out of an eviction proceeding.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Wade C. GRIFFIN.
    No. KA 2006-543.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Rehearing Denied Nov. 15, 2006.

      Charles A. Riddle, III, District Attorney, Twelfth Judicial District Court, Michael Francis Kelly, Assistant District Attorney, Twelfth Judicial District Court, Marksville, LA, for Plaintiff/Appellee: State of Louisiana.

      Michael Anderson Brewer, Alexandria, LA, for Defendant/Appellant: Wade C. Griffin.
    Wade C. Griffin, Allen Correctional Center, Kinder, LA.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

h On May 26, 2005, the Defendant, Wade C. Griffin, was charged in an indictment with second degree murder, a violation of La.R.S. 14:30.1. The Defendant entered a plea of not guilty on June 2, 2005.

The matter proceeded to trial by jury on October 18, 2005, and on October 19, 2005, the jury returned a verdict of guilty of manslaughter, a violation of La.R.S. 14:31. A motion for new trial was filed on November 10, 2005, and denied on January 30, 2005.

Also, on January 30, 2005, the Defendant was sentenced to serve thirty-five years at hard labor. A motion to reconsider sentence was filed on February 3, 2006. The motion was denied on February 23, 2006.

A notice of appeal and designation of record were filed on February 2, 2006. The Defendant is now before this court asserting three assignments of error. The Defendant contends the jury erred in rejecting the affirmative defense of self-defense and finding him guilty of manslaughter, the sentence imposed was constitutionally excessive, and the prosecution for second degree murder constituted double jeopardy. We find these assignments lack merit.

FACTS

On March 22, 2005, the Defendant stabbed Marcus Conway, who subsequently died as a result of his injuries.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

| ¡ASSIGNMENT OF ERROR NUMBER ONE & PRO SE ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Defendant contends the jury erred in rejecting the affirmative defense of self-defense and finding him guilty of manslaughter.

This court discussed the state of the law regarding self-defense in State v. Alexander, 04-788, pp. 1-2 (La.App. 3 Cir. 11/17/03), 888 So.2d 401, 402, as follows:

Louisiana Revised Statute[s] 14:20 provides that a homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
When reviewing the sufficiency of the evidence, appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and must determine “whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). When a defendant claims that he acted in self-defense, the State has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Brown, 414 So.2d 726 (La.1982). Defendant argues that the State failed to carry its burden of proof on this issue. Therefore, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that he did not act in self-defense. State v. Matthews, 464 So.2d 298 (La.1986).

The Defendant has two stepchildren, Jill Washington and Chad Washington. Marcus Conway, the victim, was Jill’s longtime boyfriend. The Defendant admitted that he stabbed Marcus on March 22, 2005, and, as a result, Marcus died. Although Marcus was stabbed in the abdomen, an autopsy revealed that he died as a result of an injury to an artery located at the back of the spinal column.

Is At approximately noon on March 22, 2005, the Defendant returned home after being out all night. Jill and Chad testified that at that time the Defendant and his wife, their mother, began to argue. However, the Defendant testified that he and his wife were merely talking. During the course of the argument, the Defendant referenced Jill’s relationship with Marcus. Jill testified that the Defendant said Marcus got her on drugs, Marcus used drugs, and Marcus was having sexual relations with other girls. The Defendant testified that during the argument Jill began ranting and raving and his wife told him to be quiet, that he was going to make Jill hemorrhage, as she was seven months pregnant at the time.

Between 3:00 and 3:30 p.m., Jill and Chad brought their mother to work. Jill then went to see Marcus and told him about her argument with the Defendant. Jill and Chad then left to return home and Marcus left right behind them. However, Marcus arrived at the apartment before Jill and Chad.

The Defendant testified that after Jill, Chad, and his wife left, he heard a knock at the door and looked outside to find Marcus standing by his car. Marcus asked the Defendant if there was something the Defendant needed to speak to him about. During that time, Marcus and the Defendant were standing in the parking lot of the apartment building on the left side of Marcus’ car near the area by a concrete parking stop. Jill and Chad then pulled up. Jill testified that when she drove up Marcus was standing on the side of the concrete parking stop closest to his car and the Defendant was standing on the other side of the concrete stop. Chad testified that when he and Jill arrived, the Defendant and Marcus were near the apartment window. The Defendant testified that Jill got out of the car and told Marcus, “this m-r f-r here he said you get me high, [he] said you out screwing people and this that and the other.” The Defendant testified that Jill then told Marcus the Defendant said |4Marcus’ mother bought his car. In response, Marcus said, “we’re going to take this to the next level.” Marcus then went to his car and the Defendant testified that at that time he heard the trank pop and looked to see Marcus at the trunk of the car. The Defendant further testified that Marcus then ran into him and he “went back” and then threw his hands up to block his face and head. The Defendant then testified as follows:

Well when I threw my hands up and he caught me ... he caught my arms a couple of times and we was going back, we was ... I mean I was we was coming backward. And he was coming at me and like I said I blocked my ... I threw my hands up because I didn’t know what he had, a knife, a gun or whatever....

However, the Defendant was questioned regarding whether, on the date of the offense, he told police that he threw up his arms. The Defendant also testified that Marcus was coming at him swinging.

The following exchange occurred regarding when the Defendant pulled out the knife he used to stab Marcus:

Q. All right. You can sit back. So when did you pull the knife out? At what point in this did you pull the knife out?
A. At what point did I pull the knife out. Well I would imagine it was after I fell ... we went back and he caught me a couple of times across the ... well my arm, you know I threw my hands up like I said. So I would imagine it wasn’t much in between that and ...
Q.... Was he punching you?
A.... So it had to be out there.
Q. He was punching you?
A. Well punching ...
Q. What did you catch with your arms, Mr. Griffin?
A. I reckon it was his hands or his arms. Something to that degree. I almost ...
Q. There was nothing in those hands was it?
|rA. Oh I don’t ... not that I know of man. I was just shook.
Q. Go ahead I’m sorry, you ahead. I don’t mean to cut you off.
A. Okay. I mean like I said he was so close I didn’t see his hands and I don’t actually think he could really right now sitting back in a peaceful sane mind right here under no pressure, I don’t see really how he could catch totally with his hands. He was too close for me to see anything, I mean he was too close really just catch me with his hand. I thoroughly believe he just coming straight at me all over me.
Q. When did you pull out the knife?
A. It had to be after that, because the incident wasn’t much more after that. I mean after that. After he caught me and we was heading backwards.

The Defendant testified that when he stabbed Marcus, Marcus was coming straight at him. The Defendant further testified that when he pulled out the knife he and Marcus were in the area of the concrete parking stop in the “front vicinity of the car.” He then indicated they were by the car door at that time.

The Defendant testified that when he realized he had stabbed Marcus, he ran behind Marcus to check on him. The Defendant testified that when he went to Marcus, he picked up Marcus’ head and put his hand over Marcus’ wound. He also told Marcus “don’t die.”

Jill testified that when she and Chad drove up, Marcus was telling the Defendant that the Defendant should not be saying things about him in front of Jill’s mother. Jill further testified that Marcus then walked by his car door, which was open, and the Defendant came up to Marcus, who had his hand on the car door, and pointed his hand in Marcus’ face. Marcus then pushed the Defendant back and the Defendant went back toward Marcus and Marcus said, “man you stabbed me.” Jill testified that after Marcus was stabbed he ran across the street. Jill further testified that the Defendant ran after Marcus stating, “I told ya’ll.” The Defendant |fithen picked up Marcus’ head and said “don’t die on me n-r, n-r don’t die.” At that time, the Defendant was crying.

Jill testified that she never heard Marcus say “we’re going to take this to the next level or we’re going to handle this right now.” She did not see Marcus pop the trunk of his car. Additionally, she did not see the knife used to stab Marcus and did not see Marcus with a weapon.

The following exchange occurred on cross-examination regarding whether Jill was aware that Marcus popped the trunk of his car:

Q. Now I’m going to direct your attention to some statements that you may have made to Officer Augustine at the time. Do you recall telling her that as Cory and Marcus were arguing that they were getting ... Marcus was getting closer and closer to him?
A. Um hum.
Q. Do you recall telling Officer Augustine that?
A. No, sir.
Q. Are you saying that you did not tell her that or you don’t remember it?
A. I don’t remember saying it.
Q. Do you recall telling her that before he was stabbed Marcus walked up to his vehicle and popped his trunk?
A. I don’t remember saying that because I didn’t even know he popped the trunk, they told me the trunk was popped.
Q. Okay, I’m just asking if you remember making these statements.
A. O.K.
Q. Do you recall telling her that Cory felt like Marcus was going to get a gun from the trunk therefore he felt threatened?
A. When she told me the trunk was popped, I say I guess that’s why Cory stabbed him because he must have thought Marcus was going get a gun or something out of his trunk.

|7Chad testified that upon arriving home, Jill got out of the car and screamed, “[t]hat b — ch and that m-r f-r he said it and all that” at Marcus. Marcus then told the Defendant “keep my name out of your ... f-g mouth.” Chad also testified that the Defendant was not angry or physically aggressive toward Marcus at that time. Chad heard Marcus say, as Marcus walked toward his car, “we can handle this right hére if you want to.” Chad later testified that Marcus said, “Right now if you want to.” Marcus then sat in his car and Chad entered the apartment.

Chad testified that he was in the apartment for five minutes then went outside and saw Marcus running. The Defendant then ran behind Marcus and later went over to Marcus and told him it would be all right. Chad did not see a weapon in Marcus’ hand and did not see him pop the trunk of his car, although the trunk had been popped. Additionally, he did not see Marcus hit the Defendant that day.

Officer Teronda Augustine responded to the 911 call regarding the incident at 4:03 p.m. on March 22, 2005. When she got to the scene, the Defendant was in the door of the apartment crying. At that time, Jill approached the Defendant and yelled, “you didn’t have to stab him.” The Defendant then told Officer Augustine, “I did it, I stabbed him” and handed her a knife. On the way to the police car, the Defendant told Officer Augustine he did not mean to do it and that it was self-defense. Officer Augustine’s report indicated Jill stated the Defendant felt that Marcus was going to get a gun from the trunk of his car; therefore, the Defendant felt threatened.

Officer Augustine searched Marcus and the area surrounding him and found no weapons. Officer Augustine was told the trunk of Marcus’ car had been popped. Upon approaching the car, Officer Augustine noticed that the trunk was open, so she looked inside the trunk and found no weapons. Officer Augustine testified that the 1 strunk was not fully opened, and that she also looked through the windows of Marcus’ car into the front and back seats and saw no weapons. However, the keys were in the ignition. Cameron Snyder, an associate medical examiner, performed an autopsy on Marcus on March 23, 2005. Snyder testified that the knife used to stab Marcus went through the skin, the fat underneath the skin, the abdominal muscles, the colon, the small intestine, and the artery that runs down the left side of the spinal column. Snyder opined that the injury to the artery caused Marcus’ death. He testified that the artery that was damaged was located over five inches from the skin surface. Snyder further testified that the blade of the knife admitted into evidence was three to four inches in length. Snyder then explained that an injury deeper than the length of the blade would occur when the blade was pushed farther and deeper into the victim, as in this case. Snyder testified that this type injury indicated a forced or thrusting nature.

The State had the burden of proving the Defendant did not stab Marcus Conway in self-defense; therefore, we must determine whether the Defendant reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm and that killing Marcus was necessary to save himself from that danger. The standard in La.R.S. 14:20 is whether the Defendant’s subjective belief that he was in danger was reasonable. State v. Brown, 93-1471 (La.App. 3 Cir. 5/4/94), 640 So.2d 488.

Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982).

State v. Spivey, 38,243, p. 6 (La.App. 2 Cir. 5/12/04), 874 So.2d 352, 357.

In cases where the defendant claims self-defense as a justification, the absence of a weapon from the victim’s person or immediate reach is often a critical element of the state’s proof. See State v. Davis, 28,662 (La.App. 2d Cir.9/25/96), 680 So.2d 1296.... The absence of weapon on the victim, however, is not dispositive of the issue.
La.R.S. 14:20(1) recognizes the additional possibility that a killing may be justified to prevent the infliction of great bodily harm. While weapons may be used to inflict such harm, it is often the case that an opponent who is physically large, powerful or skilled at fighting will inflict great bodily harm upon a weaker adversary.

State in Interest of D.S., 29,554, p. 3 (La.App. 2 Cir. 5/7/97), 694 So.2d 565, 567.

The Defendant argues that he reasonably believed he was in imminent danger of losing his life or receiving great bodily harm and that the killing of Marcus Conway was necessary to save himself from danger. The Defendant further contends that the measurements performed by Officer Augustine at the crime scene give an accurate picture of the small distance between Marcus’ vehicle and where the Defendant was located and these measurements had a direct bearing on his ability to retreat or make judgments as to the gravity of the situation.

The Defendant then discusses his ability to retreat and contends that he had no opportunity to do so. He notes that his testimony indicated that once the front door of the apartment closed, it automatically locked. He asserts this was confirmed by Chad’s testimony. Additionally, the Defendant contends that once he heard the trunk open he attempted to look at the apartment door to determine if it was open; later he contends he did not have time to see if the door was open, as when he looked behind him to check the door, Marcus was already on him. The Defendant alleges that, at that point, he reasonably felt Marcus had a gun or other dangerous weapon and that he was in immediate peril. The Defendant next points out that Marcus was a large man, measuring just over six feet tall and weighing two hundred thirty-eight pounds.

|10Lastly, the Defendant contends the evidence established the following: 1) Marcus drove to the Defendant’s home seeking a confrontation; 2) Marcus was the aggressor, both verbally and physically; 3) Marcus threatened the Defendant, both verbally and physically; 4) Marcus went to his trunk and opened it, either to retrieve a weapon or to act in such a manner as to make the Defendant believe he had a weapon; 5) Marcus physically attacked the Defendant; and 6) the Defendant had no opportunity to retreat.

We will first discuss the Defendant’s belief that Marcus was armed with a weapon. The Defendant testified that when Marcus mentioned the next level he thought Marcus was getting into his car to “pull off and come back and take it to the next level.” The Defendant further testified that taking something to the next level meant “we’re through talking. And we’re going to take it to the next level, we’re going to get physical.” When asked what went through his mind when Marcus’ trunk popped, the Defendant testified that alarms started going off in his mind. When he looked toward Marcus’ car, Marcus was in the trunk and the Defendant figured he was getting a gun. The Defendant further testified that he was thinking of a way to get to his apartment or for a way out. The Defendant looked at the apartment door, but did not think he could get to the apartment door before Marcus got to him. He further testified that by the time he could take off, Marcus was already on him. The Defendant also testified that he did not see Marcus’ hands during that time.

The following exchange occurred regarding whether the Defendant felt Marcus had a weapon:

Q. You were concerned that he had a weapon, that’s what you’re telling us, right? You didn’t know what kind of weapon, right? Could have been anything, is that what you’re saying?
A. Yes, sir.
lnQ. Until you stabbed him?
A. At first I figured he had a gun, I mean.
Q. As to that he had a gun, when you have a gun it isn’t necessary to hit somebody’s face all like you’re describing, that doesn’t sound like somebody with a gun does it?
A. When he went to that trunk ... at that trunk I figured he had a gun. And I didn’t expect him to be ... and when I looked back around to see where he was at with that gun, I did not expect for him to be on me like he was.
Q. But doesn’t that seem a little strange? Why would a guy get up in your face with a gun?
A. I ...
Q. Normally would you think ... cause you’ve handled fire arms before?
A. Right.
A. Well it could have been a knife, it could have been ... I don’t know.
Q. Didn’t you say earlier that if you thought it was a gun you’d have laid down? Isn’t that what you just testified to?
A. Yeah, if I would have looked up and he had that gun, if I looked at that trunk and he was standing with that gun ...
A. I didn’t necessarily think he had a gun when he was in my face. I just ...
A. I didn’t have time to see a weapon.

|12The Defendant testified that at no time did he intend to kill Marcus or cause him great bodily harm. Additionally, the Defendant testified that he felt his life was in jeopardy and he acted reasonably under the circumstances.

Based on the Defendant’s testimony, we find that Marcus punched or swung at the Defendant several times and the Defendant stabbed Marcus. The Defendant testified that, at that point, Marcus was in his face and he did not think Marcus had a gun. The Defendant further testified that Marcus could have had a knife; however, the Defendant then testified “I didn’t have time to see a weapon.” We find that this testimony indicates that, at the time the Defendant stabbed Marcus, he did not know if Marcus had a weapon or, if Marcus had a weapon, what type of weapon it was.

We find there was conflicting testimony regarding whether Marcus went to the trunk of his car, which was what the Defendant testified led him to believe Marcus was armed with a weapon. Jill testified that Marcus walked to his car door and the physical altercation began. Additionally, Chad testified that Marcus told the Defendant they could take it to the next level and then Marcus sat in his car. We note the Defendant is the only person who testified that Marcus actually went to the trunk of his car.

We will now discuss the Defendant’s contention that he could not retreat and the distance the Defendant was from his apartment door at the time he stabbed Marcus. On October 17, 2005, Officer Augustine went back to the scene of the incident to take photographs. She took a photograph of the area of the parking lot where the incident took place. She drew an “X” where the Defendant’s apartment was located and a rectangle where Marcus’ car was parked at the time of the incident. Officer Augustine testified that Marcus’ car was seventeen feet, three inches in length. From the apartment window to the concrete parking stop was nine feet, eight | finches. Additionally, from the window to the apartment door was five feet.

Jill testified that the altercation and stabbing occurred by the door of Marcus’ car. The Defendant gave conflicting testimony, stating that the incident occurred near the concrete parking stop in the front vicinity of the car and later stating that it occurred by the door of Marcus’ car. If the Defendant was in the vicinity of the concrete parking stop, he was approximately fourteen feet, eight inches from the front door of his apartment. However, if the Defendant was by the door of the car, he could not have been more than thirty feet from the door of the apartment at the time he stabbed Marcus.

The Defendant alleges that the door of the apartment locks automatically when it is closed. However, Chad testified that only the screen door was closed when he exited the apartment and saw Marcus running.

We will now discuss the relative sizes of the Defendant and Marcus. The Defendant testified that he was six feet, slightly taller and weighed approximately two hundred eighty-five or two hundred ninety-pounds. Marcus was six feet, three-quarter inches tall and weighed two hundred thirty-eight pounds. Accordingly, we submit the Defendant weighed approximately fifty pounds more than Marcus and was two inches taller than he was. Although Marcus was the aggressor in this altercation, the jury may have found that the Defendant’s belief that he was in imminent danger of losing his life or receiving great bodily harm was unreasonable. Furthermore, the jury could have chosen to believe the testimony of Jill, who did not see Marcus go to the trunk of his car. The jury could have also found that Marcus popped the trunk of his car, as it was partially open at the time police arrived, yet not actually walked to the back of the car before being stabbed by the Defendant.

114Even if the jury found the Defendant was reasonable in Ms belief that he was in imminent danger of losing his life or receiving great bodily harm, it was not necessary for the Defendant to use deadly force against Marcus. The Defendant was larger than Marcus. Marcus was unarmed and, based on the Defendant’s testimony, was merely hitting or swinging at him. There was no evidence presented that the Defendant suffered any injuries as a result of the altercation with Marcus. Further, during the time the Defendant was being struck by Marcus, he had time to retrieve a knife from his pocket, open the knife, and stab Marcus with such force as to push a three-to-four inch knife blade more than five inches into Marcus’ body. Additionally, according to the Defendant’s testimony, Marcus was not dangerous. The Defendant testified that he had no prior physical altercations with Marcus and, any time he had a problem with Marcus, Marcus would simply leave the Defendant’s home. Also, the Defendant made no attempt to retreat and testified that he had no time to get to his apartment. However, the apartment door was, at most, thirty feet away.

By returning the guilty verdict, the jury obviously did not believe the Defendant acted in self-defense. We find that a rational fact finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the State proved the homicide was not committed in self-defense. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO & PRO SE ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Defendant contends the sentence imposed is constitutionally excessive.

Counsel for Defendant filed a motion to reconsider sentence stating the following: “Mover shows that this sentence is excessive and should be reconsidered by this Honorable Court.” “Failure to ... include a specific ground upon which a |1Bmotion to reconsider sentence may be based, including a claim of exces-siveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” La.Code Crim.P. art. 881.1(E). Defense counsel clearly failed to specify the basis for his motion to reconsider. Accordingly, the “defendant’s motion failed to comply with La.Code Crim.P. art. 881.1(E), and, therefore, this court is relegated to a bare claim of excessiveness.” State v. Whatley, 03-1275, p. 4 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958.

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, [98-646 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

Whatley, 867 So.2d at 958-59 (alterations in original).

|1fiThe sentencing range for manslaughter is zero to forty years. La.R.S. 14:31. The Defendant was convicted of manslaughter and sentenced to thirty-five years at hard labor.

At sentencing, the trial court made the following remarks:

And so there’s certainly merit to the State’s argument or contention that that is not sufficient provocation for one to act in the way that Mr. Griffin did.
The ... would that have deprived the average person of cool reflection and the court does not feel that that was sufficient provocation.
The decedent never had a weapon in his hand, I don’t believe one was ever recovered at the scene, never threatened with a weapon. He mouthed off, never made it to the trunk of his vehicle. My appreciation again is that he was near the door to his vehicle, mouthed off a little bit. And I listened carefully to the ... all the testimony at trial. Mr. Griffin did testify at trial.
My appreciation of the case is that he popped the trunk, stood back out of the vehicle and that’s when he was stabbed. And it’s my appreciation and my belief that he was stabbed before he got to the trunk or before he opened the trunk. Because the trunk had been closed and I believe that testimony was pondered at trial. In other words, nobody saw him get stabbed and then close the trunk or open and close it and then get stabbed. So it was popped but it was never opened. So did he ever actually approach Mr. Griffin with a weapon, well no.
Mr. Griffin’s testimony, it was selective, it wasn’t too clear, and basically he had his hands in the air at one point but then from that point and he was questioned by the prosecution on these steps. Some how [sic]his hands go from being in the air to having one hand with a knife in it and then opening the knife. Now whether he had to use two hands to open the knife or one, as he testified, and then the decedent is struck with the knife. But the time it took to do these things because from Ms testimony he had his hands in the air at some point. I don’t remember word for word what he was saying but there was [were] words going back and forth, maybe it was words of hold on, let’s not go any further, you know. It was not words of war, in other words.
But Mr. Griffin gets from that point to having a knife in his hand, an open knife in his hands. And the Court just could not find the provocation for that. That was an easy way perhaps to end the argument but certainly not justifiable in this case. I just got the impression that Conway was mouthing off, maybe he needed to be scolded for that, maybe he had no business going to Mr. Conway but when someone does |17that even if incorrect, the issues are much broader until a stabbing occurs. Retreat is an issue that came up in the trial, briefly. But both sides I think pondered retreat.
Mr. Griffin indicated the door would latch behind him and so on. But still we visited the complex I think he could have retreated to his left or to his right. But instead he, I believe, approached the decedent who was near the door where he had popped the trunk and stabbed him.
I have reviewed all of the circumstances whether aggravating or mitigating and I’ll have to go through some of those now. Whether or not there’s an undue risk that during a suspended sentence or probation defendant will commit another crime, I’ve contemplated that and my feeling is that Mr. Griffin doesn’t immediately pose a direct threat to anyone. He’s not the kind of person who will break into your home unprovoked and kill you in the middle of the night. He is however has at least this one time shown a propensity to take a short cut and ended someone’s life rather than explore other avenues of retreating from a situation.
Code of Criminal Procedure Article 894.1 subsection A, subsection 3 most important to the court at this time a lesser sentence would depreciate the seriousness of the defendant’s crime and I guess I have typically been very stern with criminal sentences.
In the pre-sentence investigation it was not a similar offense but it was a drive-by shooting allegation it had been reduced to I believe aggravated assault and I believe it was 1997. Let me just review that. Yeah, reduced to aggravated assault. So I did necessarily consider that as an aggravating circumstance ....
The defendant did not contemplate that his conduct would cause or threaten serious harm, I cannot grant the defendant that because when you thrust a 3.5 inch blade into someone’s gut, you have to expect serious harm to follow.
The defendant acted under strong provocation we could debate that forever. There was provocation. Was it sufficient for him to react in the manner that he did? ... But the court has to consider whether that provocation deprived ... would it have deprived the average person of self-control and cool reflection sufficient for this to just be a | ^manslaughter and also how to ponder that whether it’s a mitigating offense or not.
Again the State makes a valid argument that that is not sufficient. You can’t have someone come over and mouth off to you and there’s not weapon, he’s just mouthing off. And you can’t ... there can’t be precedent which would allow you to stick them ... stab them with a 3.5 inch knife of that type or any kind of a knife in the gut. There are too many other methods of retreat.

In State v. Carrier, 95-1003 (La.App. 3 Cir. 3/6/96), 670 So.2d 794, writ denied, 96-881 (La.9/20/96), 679 So.2d 431, the defendant forcibly entered Ms. Wilson’s apartment and shot the victim as he lay in bed. Shortly before the fatal shooting, the defendant pulled a gun on Shannon Lewis, sent a box of condoms to Ms. Wilson, and stalked her apartment while her Mends were visiting. The Defendant was charged with second degree murder, but found guilty of manslaughter. This court noted the defendant had only two prior convictions for misdemeanor theft and possession of marijuana; however, he had been arrested on other charges including a concealed weapons charge in Texas. In finding the defendant’s forty-year sentence was not excessive, this court cited the following cases:

This court has upheld lengthy sentences for manslaughter. In State v. Ford, 94-1440 (La.App. 3 Cir. 4/5/95), 653 So.2d 107, we affirmed a twenty-five year sentence where the defendant killed a person while engaged in the purchase of cocaine. In State v. Cushman, 94-336 (La.App. 3 Cir. 11/2/94), 649 So.2d 639, we upheld a thirty year sentence for a manslaughter conviction. In State v. Darby, 502 So.2d 274 (La.App. 3 Cir.1987), the defendant was initially charged with second degree murder, but convicted by a jury of manslaughter and given the maximum sentence. This court upheld the sentence noting it was clear the trial court felt the evidence supported a second degree murder verdict which he considered when pronouncing sentence. Such consideration is proper. State v. Roussel, 424 So.2d 226 (La.1982); State v. Heath, 447 So.2d 570 (La.App. 1 Cir. 1984), writ denied, 448 So.2d 1302 (La.1984).

Id. at 799-800.

Based on Carrier, we find the trial court did not abuse its discretion when imposing a sentence of thirty-five years. The trial court in the case at bar felt the 11flevidence did not support a verdict of guilty of manslaughter, as there was not sufficient provocation by the victim. Such consideration was proper pursuant to Carrier and State v. Le, 98-1274 (La.App. 5 Cir. 6/30/99), 738 So.2d 168, writ denied, 00-2174 (La.4/12/01), 789 So.2d 587. Thus, the Defendant’s sentence is not excessive. Accordingly, this assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the Defendant contends his prosecution for second degree murder constituted double jeopardy.

The Defendant submitted a copy of an indictment filed on April 21, 2005, in docket number 128207 charging him with manslaughter for the death of Marcus Conway. On May 26, 2006, an indictment charging the Defendant with second degree murder for the death of Marcus Conway was filed in docket number 128628. The Defendant alleges the first indictment was dismissed without reason and contrary to the law. The Defendant additionally asserts that because he was first indicted for manslaughter, he could not later be indicted for second degree murder based on the same set of facts, as this constitutes double jeopardy. Additionally, he was denied his right to contest the second indictment in front of the grand jury.

We find the indictment handed down on April 21, 2005, and information regarding the dismissal of same is not a part of the record in this matter. Accordingly, we will not address Defendant’s claim regarding the dismissal of that indictment. Additionally, the record in this matter contains no information regarding the grand jury process and whether the Defendant was present or testified at the proceedings wherein he was indicted for second degree murder. Accordingly, that issue is not properly before this court.

|2,)We will address, briefly, the Defendant’s remaining double jeopardy claim.

Both the United States Constitution and the Louisiana Constitution provide double jeopardy protection to a criminal defendant. The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” See also La. Const, art. I, § 15. The protection against double jeopardy applies in three situations: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Smith, 95-61 (La.7/2/96), 676 So.2d 1068; and State v. Mayeux, 498 So.2d 701 (La.1986).

State v. Walker, 00-1028, pp. 2-3 (La.App. 3 Cir. 1/31/01), 778 So.2d 1192, 1194, writ denied, 01-546 (La.2/1/02), 808 So.2d 336.

It appears the Defendant did not proceed to trial for manslaughter. Therefore, he was not subjected to a second prosecution for the same offense. Accordingly, double jeopardy is not applicable to the case at bar. For these reasons, we conclude this assignment lacks merit.

CONCLUSION

The Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Several witnesses in the record refer to the Defendant as Cory.